Taken as a whole, the intent of these guidelines is to emphasize that the question is not whether schools and their communities can raise money to support programs – they can – but how funds can be raised through lawful means.
These guidelines contain four sections:
- I.General Rule According to California Constitution
- II.Exceptions: Permissible Mandatory Fees/Charges/Deposits
I. General Rule According to California Constitution
- The California Constitution mandates that public education be provided to students free of charge, unless a charge is specifically authorized by law for a particular program or activity.
- This constitutional right of free access encompasses all educational activities, whether curricular or extracurricular, and regardless of whether credit is awarded for the educational activity.
- The right of free access also prohibits mandated purchases of materials, supplies, equipment or uniforms associated with the activity, as well as the payment of security deposits for access, participation, materials or equipment.
- Finally, a process that allows for a waiver process for an otherwise mandatory fee, charge or deposit does not render it constitutionally permissible.
II. Exceptions: Permissible Mandatory Fees/Charges/Deposits
The following are specific exceptions to the prohibition on fees and charges at the kindergarten through 12th grade level (some legal provisions related to child care programs and adult education are not listed here). These fees and charges are legally permissible because they are specifically permitted by law. The following fees, charges, and deposits are permissible:
- Charges for optional attendance as a spectator at a school or District sponsored activity. (Hartzell, 35 Cal.3d 899, 911, fn. 14).
- Charges for food served to students, subject to free and reduced price meal program eligibility and other restrictions specified in law. (Education Code §§ 38082 and 38084).
- Paying the replacement cost for District books or supplies loaned to a student that the student fails to return or that is willfully cut, defaced or otherwise injured, up to an amount not to exceed $10,000. (Education Code §§ 19910-19911 and 48904).
- Fees for field trips and excursions in connection with courses of instruction or school related social, educational, cultural, athletic, or school band activities, as long as no student is prevented from making the field trip or excursion because of lack of sufficient funds. (Education Code § 35330(b)).
- Medical or hospital insurance for field trips that is made available by the school district. (Education Code § 35331).
- Charges for required medical and accident insurance for athletic team members, so long as there is a waiver for financial hardship. (Education Code § 32221).
- Charges for standardized physical education attire of a particular color and design, but the school may not mandate that the attire be purchased from the school and no physical education grade of a student may be impacted based on the failure to wear standardized apparel “arising from circumstances beyond the control” of the student. (Education Code § 49066).
- Charges for the rental or lease of personal property needed for District purposes, such as caps and gowns for graduation ceremonies (Education Code § 38119).
- Fees for school camp programs, so long as no student is denied the opportunity to participate because of nonpayment of the fee. (Education Code § 35335).
- Reimbursement for the direct cost of materials provided to a student for property the student has fabricated from such materials for his/her own possession and use, such as wood shop, art, or sewing projects kept by the student. (Education Code § 17551).
- Reimbursement for the actual cost of duplicating public records, student records, or a prospectus of the school curriculum. (Government Code § 6253; Education Code § 49091.14).
- Fees for transportation to and from school, and transportation between school and regional occupational centers, programs or classes, as long as the fee does not exceed the statewide average nonsubsidized cost per student and provided there is a waiver provision based on financial need. (Education Code § 39807.5).
- Fees for transportation of pupils to places of summer employment. (Education Code § 39837).
The Supreme Court in Hartzell v. Connell stated that “educational opportunities must be provided to all students without regard to their families’ ability or willingness to pay fees or request special waivers.” in 1998 the California Attorney General addressed the issue of donations, and emphasized that the constitutional concerns are alleviated when the raising of private funds is truly voluntary.
School districts, schools, programs and classes can and do seek and accept donations of funds and property, and this practice is permissible as long as it is truly voluntary and in no way a prerequisite to participation in the program or activity.
Therefore, any statement or explanation related to a donation that could lead a reasonable person to believe the donation may not be truly voluntary is to be avoided. Examples include but are not limited to a specified minimum amount of a donation, a date by which a donation is due, a lesser donation amount if funds are received prior to a certain date. Additionally, any statements or actions that exert explicit or implicit pressure on students or parents to make a donation are to be avoided, and the reason a student or family does not make a donation is not a subject for inquiry – as the Hartzell court said, access to educational programs must not be tied to the willingness to pay a fee or request a waiver, not only the ability to pay a fee or request a waiver.
As with donations, school districts, schools, programs and classes can and do engage in fundraising activities and programs, and this practice is also permissible as long as the raising of funds is voluntary. A student who is asked to but does not raise funds may not be denied participation in an educational activity. A requirement to raise funds in order to participate, even if there is no mandated amount to be raised, is the same as requiring a fee.
The prohibition on the requirement for an individual student to raise money is to be distinguished from a requirement to attend a fundraising event as an element of participation in an activity, in the same way attendance at practices, games, rehearsals or performances are an expected aspect of participation. For example, expecting the members of a vocal ensemble to attend a fundraising concert that is on its calendar of events does not violate the “free school” guarantee, so long as attendance is the only requirement. Another example is when members of an athletic team are expected to help out with a fundraising sale at a Back to School Night or Open House – just as a coach can expect players to attend practices and games, he/she can expect players to attend a fundraising event as long as the requirement is to attend rather than to raise money as a condition of participation in the activity or program.
As donated funds allow, we will be sending home parent permission slips and more information with all students for the field trips.
Follow this link for Frequently Asked Questions concerning Donations and Fundraising