DOE V.

CALIFORNIA
SETTLEMENT IMPLEMENTATION AGREEMENT

It is hereby agreed among the Defendants (the State of California and Governor Arnold
Schwarzenegger) and the plaintiff class representatives (“Plaintiffs”) (collectively, the “Settling
Parties”) in Doe v. California, Case Number BC445151 in the Superior Court in and for the
County of Los Angeles (“the Action”) that:

1. On September 10, 2010, Plaintiffs filed the Action, alleging that Defendants violated
their constitutional duty to provide free and equal education by failing to ensure that
California public school districts do not charge fees for educational activities. The
Settling Parties agree that requiring public school students to pay fees or purchase
materials for either curricular or extracurricular educational activities is prohibited by the
California Constitution. See Cal. Const. art. IX, § 5, art. I, § 7(a) & art. IV, § 16(a);
Hartzell v. Connell, 35 Cal. 3d 889 (1984).

2. The Defendants enter into this Settlement Agreement to help ensure that districts comply
with California law. The Defendants do not concede or admit any liability or
wrongdoing. No party, including but not limited to the Plaintiffs, shall construe this
Settlement Agreement or any party’s performance hereunder, as an admission of any
liability or wrongdoing. The provisions of this Settlement Agreement notwithstanding,
the Settling Parties agree that nothing in this Settlement Agreement shall be construed so
as to void or otherwise affect the enforceability of statutes that permit the charging of
certain fees consistent with the California Constitution.

3. Promptly after the Settling Parties execute this Settlement Agreement, Plaintiffs (or, at
the State’s option, the State and Plaintiffs jointly) shall file a Notice of Settlement. The
Notice of Settlement will describe the terms of the settlement, seek the Court’s
preliminary approval of the settlement, and seek approval to proceed according to the
process established in this settlement agreement, including a stay of the litigation pending
final court approval. Plaintiffs shall circulate the Notice of Settlement to the Defendants
for their review and comment before the Notice is filed with the Court.

4. The Defendants agree to send the attached letter and guidance regarding student fees to
all County and District Superintendents and Charter School Administrators within two
weeks after the date of execution of this settlement agreement.

5. The Settling Parties agree to engage in good faith efforts to obtain the enactment of
legislation that implements the legislative proposals attached to this Settlement
Agreement (the “Legislative Proposals”) as soon as possible, and no later than September
30, 2011. Consistent with this commitment, the Settling Parties also agree that during
1
 fiscal years 2010-2011 and 2011-2012 they will not advocate or support any legislative
measures relating to the Legislature’s consideration of the proposed legislation to
implement the settlement that do not substantially conform to the Legislative Proposals.
A legislative measure does not “Substantially Conform” to the Legislative Proposals if it
is inconsistent with the language and intent of the Legislative Proposals, including all
duties, limitations, and deadlines set forth therein.

6. The Settling Parties agree to engage in good faith efforts to obtain the adoption of
regulations that implement the regulatory proposals attached to this Settlement
Agreement (the “Regulatory Proposals”) for the 2010-11 Audit Guide pursuant to
California Education Code Section 14502.1 as soon as possible, and no later than March
1, 2011. Consistent with this commitment, the Settling Parties also agree that during
fiscal years 2010-2011 and 2011-2012 they will not advocate or support any regulatory
measures relating to the proposed regulations to implement the settlement that do not
substantially conform to the Regulatory Proposals. A regulatory measure does not
“Substantially Conform” to the Regulatory Proposals if it is inconsistent with the
language and intent of the Regulatory Proposals, including all duties, limitations, and
deadlines set forth therein.

7. The Plaintiffs shall await the outcome of the efforts to enact the Legislative Proposals
until August 31, 2011. If the Legislature has not passed a bill that seeks to implement the
Legislative Proposals by August 31, 2011, then, after consultation, the Plaintiffs may
apply to the Court for leave to withdraw from the Settlement Agreement and to lift the
stay of the litigation, and the Defendants will not oppose the dissolution of the stay.

8. The Plaintiffs shall await the outcome of the efforts to enact the Regulatory Proposals
until March 1, 2011. If regulations that seek to implement the Regulatory Proposals have
not been adopted by the Education Audit Appeals Panel and approved by the Office of
Administrative Law by March 1, 2011, then, after consultation, the Plaintiffs may apply
to the Court for leave to withdraw from the Settlement Agreement and to lift the stay of
the litigation, and the Defendants will not oppose the dissolution of the stay.

9. No later than October 3, 2011, Plaintiffs shall notify Defendants whether they agree that
the legislation that has been passed by the Legislature and signed by the Governor (the
“Fees Legislation”) Substantially Conforms to the Legislative Proposals and whether they
agree that the regulations adopted by the Education Audit Appeals Panel and approved by
the Office of Administrative Law (the “Fees Regulations”) Substantially Conform to the
Regulatory Proposals, which agreement shall not be unreasonably withheld. If the
Plaintiffs agree that the Fees Legislation and the Fees Regulations Substantially Conform,
they shall promptly take all steps necessary to certify a class for purposes of settlement,
wherein the settlement class shall be defined to include all current and future students in
2
 California public schools who have been or will be required to pay fees or purchase
materials for courses for academic credit up to and including the date on which the Court
grants final approval of the settlement. Defendants shall provide all reasonable
cooperation in the effort to certify the settlement class. Once the class has been certified,
Plaintiffs shall submit a motion for final approval of the settlement and dismissal of the
Action as provided in this Settlement Agreement.

10. In the event that Plaintiffs believe the Fees Legislation does not Substantially Conform to
the Legislative Proposals and/or the Fees Regulations do not Substantially Conform to
the Regulatory Proposals, they shall engage in consultation (as described in paragraph 12
below), giving written notice to Defendants of the alleged deficiencies and providing the
Defendants with an opportunity to cure any alleged shortcoming. If the Defendants do
not cure the alleged deficiencies, or are unable to cure them, the Plaintiffs may apply to
the Court for leave to withdraw from the Settlement Agreement and to lift the stay of the
litigation.

11. In the event the Court grants final approval of the settlement:

a. The Settling Parties agree that plaintiffs and members of the plaintiff class waive
all current and future claims against the Defendants, including but not limited to
all claims for declaratory or injunctive relief, that arise from acts or omissions
allegedly attributable to Defendants up to and including the date on which the
Court grants final approval of the settlement, including those claims that were or
could have been pled based on the factual allegations included in the complaint
filed on September 10, 2010.

b. The Settling Parties further agree the Action will be dismissed with prejudice
subject to approval by the Court pursuant to California Code of Civil Procedure
section 581, subdivision (k), and that such a dismissal will extinguish all current
and future claims against the Defendants, including but not limited to all claims
for declaratory or injunctive relief, that arise from acts or omissions allegedly
attributable to Defendants up to and including the date on which the Court grants
final approval of the settlement, including those claims that were or could have
been pled based on the factual allegations included in the complaint filed on
September 10, 2010.

c. Plaintiffs may request that the Court award to them attorneys’ fees and costs, and
the award of any such fees and costs will be determined by the Court in
accordance with applicable law.

3
12. The terms “Defendants” and “Settling Parties” as used in this Settlement Agreement,
including specifically but not limited to paragraphs 1-10, 11(a) and 11(b), and 13-14,
shall not include any local public agency or entity, such as a school district or other local
education agency.

13. The Settling Parties shall endeavor in good faith to resolve informally any differences
regarding interpretations of, and compliance with, this Settlement Agreement prior to
bringing such matters to the Court for resolution. However, if any Settling Party fails to
perform in a timely manner any act required by this Agreement, regardless of the reason,
or otherwise acts in violation of any provision of this Settlement Agreement, the
burdened party may, after failure of good faith efforts to resolve the matter, move the
Court to dissolve this Settlement Agreement and lift the stay on litigation.

14. This Settlement Agreement may be signed in counterparts, and all so executed
counterparts shall constitute the Settlement Agreement, which shall be binding on the
Settling Parties. More than one counterpart of this Agreement may be executed by the
Parties hereto, and each executed counterpart (whether via facsimile, photocopy or
original) shall be deemed an original.

4
Dated: December ___, 2010 PLAINTIFFS JANE DOE, A MINOR, BY
HER GUARDIAN AD LITEM, ET. AL.,
EACH INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY
SITUATIONS

By:
Mark D. Rosenbaum
Brooks M. Allen
David Sapp
ACLU Foundation of Southern
California

Dan Marmalefsky
Saro Balian
Douglas J. Beteta
Morrison & Foerster, LLP

Alan L. Schlosser
Jory C. Steele
ACLU Foundation of Northern
California

David Blair-Loy
ACLU Foundation of San Diego &
Imperial Counties

Attorneys for Plaintiffs

5
Dated: December ___, 2010 DEFENDANTS THE STATE OF
CALIFORNIA AND ARNOLD
SCHWARZENEGGER, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF THE
STATE OF CALIFORNIA

By:
Jonathan E. Rich
Deputy Attorney General

Edmund G. Brown Jr.

Attorney General of California
Douglas M. Press
Senior Assistant Attorney General
Richard T. Waldow
Supervising Deputy Attorney General

Attorneys for Defendants

Dated: December ___, 2010 DEFENDANT ARNOLD

SCHWARZENEGGER, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF THE
STATE OF CALIFORNIA

By:
Daniel P. Maguire
Deputy Legal Affairs Secretary
Office of Governor Arnold
Schwarzenegger

6
 LEGISLATIVE PROPOSALS

Proposed amendments to California Education Code Sections 14501, 35186, and 41020 and
proposed addition of California Education Code Section 49010

7
 (Bill to be enacted with an urgency clause.)

[Proposed amendments are in strikethrough and underlined text.]

SEC 1. Section 14501 of the Education Code is amended to read:

14501. (a) As used in this chapter, "financial and compliance audit"

shall be consistent with the definition provided in the "Standards
for Audits of Governmental Organizations, Programs, Activities, and
Functions" promulgated by the Comptroller General of the United
States. Financial and compliance audits conducted under this chapter
shall fulfill federal single audit requirements.
(b) As used in this chapter, "compliance audit" means an audit
that ascertains and verifies whether or not funds provided through
apportionment, contract, or grant, either federal or state, have been
properly disbursed and expended as required by law or regulation or
both and includes the verification of each of the following:
(1) The reporting requirements for the sufficiency of textbooks or
instructional materials, or both, as defined in Section 60119.
(2) Teacher misassignments pursuant to Section 44258.9.
(3) The accuracy of information reported on the School
Accountability Report Card required by Section 33126. The
requirements set forth in paragraphs (1) and (2) and this paragraph
shall be added to the audit guide requirements pursuant to
subdivision (b) of Section 14502.1.
(4) Compliance with Section 49010 and the “free school guarantee” in Section 5 of Article IX
of the California Constitution.

SEC 2. Section 35186 of the Education Code is amended to read:

35186. (a) A school district shall use the uniform complaint

process it has adopted as required by Chapter 5.1 (commencing with
Section 4600) of Title 5 of the California Code of Regulations, with
modifications, as necessary, to help identify and resolve any
deficiencies related to instructional materials, emergency or urgent
facilities conditions that pose a threat to the health and safety of
pupils or staff, teacher vacancy or misassignment, and intensive
instruction and services provided pursuant to Section 37254 to pupils
who have not passed one or both parts of the high school exit
examination after the completion of grade 12, and fees, deposits, or other charges related to
participation in a curricular or extracurricular activity.
(1) A complaint may be filed anonymously. A complainant who
identifies himself or herself is entitled to a response if he or she
indicates that a response is requested. A complaint form shall

8
include a space to mark to indicate whether a response is requested.
If Section 48985 is otherwise applicable, the response, if requested,
and report shall be written in English and the primary language in
which the complaint was filed. All complaints and responses are
public records.
(2) The complaint form shall specify the location for filing a
complaint. A complainant may add as much text to explain the
complaint as he or she wishes.
(3) Except as provided pursuant to paragraph (4), a complaint
shall be filed with the principal of the school or his or her
designee. A complaint about problems beyond the authority of the
school principal shall be forwarded in a timely manner but not to
exceed 10 working days to the appropriate school district official
for resolution.
(4) A complaint regarding any deficiencies related to intensive
instruction and services provided pursuant to Section 37254 to pupils
who have not passed one or both parts of the high school exit
examination after the completion of grade 12 shall be submitted to
the district official designated by the district superintendent. A
complaint may be filed at the school district office, or it may be
filed at the schoolsite and shall be immediately forwarded to the
designee of the district superintendent.
(b) The principal or the designee of the district superintendent,
as applicable, shall make all reasonable efforts to investigate any
problem within his or her authority. The principal or designee of the
district superintendent shall remedy a valid complaint within a
reasonable time period but not to exceed 30 working days from the
date the complaint was received. The principal or designee of the
district superintendent shall report to the complainant the
resolution of the complaint within 45 working days of the initial
filing. If the principal makes this report, the principal shall also
report the same information in the same timeframe to the designee of
the district superintendent.
(c) A complainant not satisfied with the resolution of the
principal or the designee of the district superintendent has the
right to describe the complaint to the governing board of the school
district at a regularly scheduled hearing of the governing board. As
to complaints involving a condition of a facility that poses an
emergency or urgent threat, as defined in paragraph (1) of
subdivision (c) of Section 17592.72 or fees, deposits, or other charges related to participation in a
curricular or extracurricular activity, a complainant who is not
satisfied with the resolution proffered by the principal or the
designee of the district superintendent has the right to file an
appeal to the Superintendent, who shall provide a written report to

9
the state board and the complainant no later than 30 working days after the date the complaint
was received describing the basis for the complaint and, as appropriate, a proposed remedy for
the issue described in the complaint. Where a district or school has illegally required a pupil to
pay a fee, make a deposit, or make a purchase, the Superintendent’s remedy will include, but not
be limited to, requiring the district or school to fully reimburse the pupil with interest.
(d) A school district shall report summarized data on the nature
and resolution of all complaints on a quarterly basis to the county
superintendent of schools and the governing board of the school
district. The summaries shall be publicly reported on a quarterly
basis at a regularly scheduled meeting of the governing board of the
school district. The report shall include the number of complaints by
general subject area with the number of resolved and unresolved
complaints. The complaints and written responses shall be available
as public records.
(e) The procedure required pursuant to this section is intended to
address all of the following:
(1) A complaint related to instructional materials as follows:
(A) A pupil, including an English learner, does not have
standards-aligned textbooks or instructional materials or
state-adopted or district-adopted textbooks or other required
instructional material to use in class.
(B) A pupil does not have access to instructional materials to use
at home or after school.
(C) Textbooks or instructional materials are in poor or unusable
condition, have missing pages, or are unreadable due to damage.
(2) A complaint related to teacher vacancy or misassignment as
follows:
(A) A semester begins and a teacher vacancy exists.
(B) A teacher who lacks credentials or training to teach English
learners is assigned to teach a class with more than 20-percent
English learner pupils in the class. This subparagraph does not
relieve a school district from complying with state or federal law
regarding teachers of English learners.
(C) A teacher is assigned to teach a class for which the teacher
lacks subject matter competency.
(3) A complaint related to the condition of facilities that pose
an emergency or urgent threat to the health or safety of pupils or
staff as defined in paragraph (1) of subdivision (c) of Section
17592.72 and any other emergency conditions the school district
determines appropriate and the requirements established pursuant to
subdivision (a) of Section 35292.5.
(4) A complaint related to the provision of intensive instruction
and services pursuant to paragraphs (4) and (5) of subdivision (d) of
Section 37254.
(5) A complaint related to pupil fees as follows:

10
 (A) A pupil is charged a fee as a condition for registering for school or classes, or as a
condition for participation in any class or extracurricular activity, regardless of whether the class
or activity is elective or compulsory or is for credit.
(B) A pupil is required to make a security deposit or other required payment for a lock, locker,
book, class apparatus, musical instrument, uniform, or other equipment.
(C) A pupil is required to purchase materials, supplies, equipment, or uniforms associated with
a school curricular or extracurricular activity.
(f) In order to identify appropriate subjects of complaint, a
notice shall be posted in each classroom in each school in the school
district notifying parents, guardians, pupils, and teachers of the
following:
(1) There should be sufficient textbooks and instructional
materials. For there to be sufficient textbooks and instructional
materials each pupil, including English learners, must have a
textbook or instructional materials, or both, to use in class and to
take home.
(2) School facilities must be clean, safe, and maintained in good
repair.
(3) There should be no teacher vacancies or misassignments as
defined in paragraphs (2) and (3) of subdivision (h).
(4) Pupils may not be charged fees, including security deposits, or be required to purchase
equipment or materials, to participate in a class or an extracurricular activity.
(4) (5) Pupils who have not passed the high school exit examination by
the end of grade 12 are entitled to receive intensive instruction
and services for up to two consecutive academic years after
completion of grade 12 or until the pupil has passed both parts of
the high school exit examination, whichever comes first, pursuant to
paragraphs (4) and (5) of subdivision (d) of Section 37254. The
information in this paragraph, which is to be included in the notice
required pursuant to this subdivision, shall only be included in
notices posted in classrooms in schools with grades 10 to 12,
inclusive.
(5)(6) The location at which to obtain a form to file a complaint in
case of a shortage. Posting a notice downloadable from the Internet
Web site of the department shall satisfy this requirement.
(g) A local educational agency shall establish local policies and
procedures, post notices, and implement this section on or before
January 1, 2005.
(h) For purposes of this section, the following definitions apply:
(1) "Good repair" has the same meaning as specified in subdivision
(d) of Section 17002.
(2) "Misassignment" means the placement of a certificated employee
in a teaching or services position for which the employee does not
hold a legally recognized certificate or credential or the placement
of a certificated employee in a teaching or services position that

11
the employee is not otherwise authorized by statute to hold.
(3) "Teacher vacancy" means a position to which a single
designated certificated employee has not been assigned at the
beginning of the year for an entire year or, if the position is for a
one-semester course, a position to which a single designated
certificated employee has not been assigned at the beginning of a
semester for an entire semester.
(4) “Fees, deposits, or other charges related to participation in a curricular or extracurricular
activity” means fees, deposits, or charges imposed on pupils in violation of Section 49010 and
the Free Schools Clause in Article IX, Section 5 of the California Constitution, which requires
that educational opportunities be provided to all students without regard to their families’ ability
or willingness to pay fees or request special waivers.

SEC 3. Section 49010 is added to Article 5.5 of Chapter 6 (Pupil Rights and
Responsibilities) of Part 27 of Division 1 of Title 1 of the Education Code, to read:

49010. (a) A pupil enrolled in a school shall not be required to pay any fee, deposit, or other
charge in order to participate in an educational activity. All supplies, materials, and equipment
for curricular and extracurricular activities must be provided to pupils free of charge.
(b) A wavier process does not render an otherwise impermissible mandatory fee,
charge, or deposit permissible.
(c) Districts cannot establish a two tier educational system by defining a minimal
educational standard as the requirement and then offering a second, higher standard that pupils
may only reach by paying a fee or purchasing additional supplies that the school does not
provide.
(d) No school may offer course credit or privileges related to curricular or
extracurricular activities in exchange for money or donations of goods or services from the pupil
or the pupil’s parents or guardians, and no school may take away course credit or privileges
related to curricular or extracurricular activities or punish a pupil because the pupil or the pupil’s
parents or guardians did not provide money or donations of goods or services to the school.
(e) This section shall not be interpreted to prohibit an entire school, class, sports team,
or club from participating in fundraising or to prohibit schools from providing students prizes or
other recognition for participating in such activities.
(f) This section is declarative of existing law, and shall not be interpreted to prohibit
any school district or school from charging a fee, deposit, or other charge otherwise allowed by
law.
(g) For purposes of this section, “educational activity” means any activity which
constitutes an integral fundamental part of the elementary and secondary education or which
amounts to a necessary element of any school’s activity, including, but not limited to, curricular
and extracurricular activities.

SEC. 4 Section 41020 of the Education Code is amended to read:

12
41020. (a) It is the intent of the Legislature to encourage sound
fiscal management practices among local educational agencies for the
most efficient and effective use of public funds for the education of
children in California by strengthening fiscal accountability at the
district, county, and state levels.
(b) (1) Not later than the first day of May of each fiscal year,
each county superintendent of schools shall provide for an audit of
all funds under his or her jurisdiction and control and the governing
board of each local educational agency shall either provide for an
audit of the books and accounts of the local educational agency,
including an audit of income and expenditures by source of funds, or
make arrangements with the county superintendent of schools having
jurisdiction over the local educational agency to provide for that
auditing.
(2) A contract to perform the audit of a local educational agency
that has a disapproved budget or has received a negative
certification on any budget or interim financial report during the
current fiscal year or either of the two preceding fiscal years, or
for which the county superintendent of schools has otherwise
determined that a lack of going concern exists, is not valid unless
approved by the responsible county superintendent of schools and the
governing board.
(3) If the governing board of a local educational agency has not
provided for an audit of the books and accounts of the local
educational agency by April 1, the county superintendent of schools
having jurisdiction over the local educational agency shall provide
for the audit of each local educational agency.
(4) An audit conducted pursuant to this section shall comply fully
with the Government Auditing Standards issued by the Comptroller
General of the United States.
(5) For purposes of this section, "local educational agency" does
not include community colleges.
(c) Each audit conducted in accordance with this section shall
include all funds of the local educational agency, including the
student body and cafeteria funds and accounts and any other funds
under the control or jurisdiction of the local educational agency.
Each audit shall also include an audit of pupil attendance
procedures.
(d) All audit reports for each fiscal year shall be developed and
reported using a format established by the Controller after
consultation with the Superintendent and the Director of Finance.
(e) (1) The cost of the audits provided for by the county
superintendent of schools shall be paid from the county school
service fund and the county superintendent of schools shall transfer

13
the pro rata share of the cost chargeable to each district from
district funds.
(2) The cost of the audit provided for by a governing board shall
be paid from local educational agency funds. The audit of the funds
under the jurisdiction and control of the county superintendent of
schools shall be paid from the county school service fund.
(f) (1) The audits shall be made by a certified public accountant
or a public accountant, licensed by the California Board of
Accountancy, and selected by the local educational agency, as
applicable, from a directory of certified public accountants and
public accountants deemed by the Controller as qualified to conduct
audits of local educational agencies, which shall be published by the
Controller not later than December 31 of each year.
(2) Commencing with the 2003-04 fiscal year and except as provided
in subdivision (d) of Section 41320.1, it is unlawful for a public
accounting firm to provide audit services to a local educational
agency if the lead audit partner, or coordinating audit partner,
having primary responsibility for the audit, or the audit partner
responsible for reviewing the audit, has performed audit services for
that local educational agency in each of the six previous fiscal
years. The Education Audits Appeal Panel may waive this requirement
if the panel finds that no otherwise eligible auditor is available to
perform the audit.
(3) It is the intent of the Legislature that, notwithstanding
paragraph (2), the rotation within public accounting firms conform to
provisions of the federal Sarbanes-Oxley Act of 2002 (P.L. 107-204;
15 U.S.C. Sec. 7201 et seq.), and upon release of the report required
by the act of the Comptroller General of the United States
addressing the mandatory rotation of registered public accounting
firms, the Legislature intends to reconsider the provisions of
paragraph (2). In determining which certified public accountants and
public accountants shall be included in the directory, the Controller
shall use the following criteria:
(A) The certified public accountants or public accountants shall
be in good standing as certified by the Board of Accountancy.
(B) The certified public accountants or public accountants, as a
result of a quality control review conducted by the Controller
pursuant to Section 14504.2, shall not have been found to have
conducted an audit in a manner constituting noncompliance with
subdivision (a) of Section 14503.
(g) (1) The auditor's report shall include each of the following:
(A) A statement that the audit was conducted pursuant to standards
and procedures developed in accordance with Chapter 3 (commencing
with Section 14500) of Part 9 of Division 1 of Title 1.
(B) A summary of audit exceptions and management improvement

14
recommendations.
(C) Each audit of a local educational agency shall include an
evaluation by the auditor on whether there is substantial doubt about
the ability of the local educational agency to continue as a going
concern for a reasonable period of time. This evaluation shall be
based on the Statement of Auditing Standards (SAS) No. 59, as issued
by the AICPA regarding disclosure requirements relating to the
ability of the entity to continue as a going concern.
(2) To the extent possible, a description of correction or plan of
correction shall be incorporated in the audit report, describing the
specific actions that are planned to be taken, or that have been
taken, to correct the problem identified by the auditor. The
descriptions of specific actions to be taken or that have been taken
shall not solely consist of general comments such as "will implement,"
"accepted the recommendation," or "will discuss at a later date."
(h) Not later than December 15, a report of each local educational
agency audit for the preceding fiscal year shall be filed with the
county superintendent of schools of the county in which the local
educational agency is located, the department, and the Controller.
The Superintendent shall make any adjustments necessary in future
apportionments of all state funds, to correct any audit exceptions
revealed by those audit reports.
(i) (1) Commencing with the 2002-03 audit of local educational
agencies pursuant to this section and subdivision (d) of Section
41320.1, each county superintendent of schools shall be responsible
for reviewing the audit exceptions contained in an audit of a local
educational agency under his or her jurisdiction related to
attendance, inventory of equipment, internal control, and any
miscellaneous items, and determining whether the exceptions have been
either corrected or an acceptable plan of correction has been
developed.
(2) Commencing with the 2004-05 audit of local educational
agencies pursuant to this section and subdivision (d) of Section
41320.1, each county superintendent of schools shall include in the
review of audit exceptions performed pursuant to this subdivision
those audit exceptions related to use of instructional materials
program funds, teacher misassignments pursuant to Section 44258.9,
information reported on the school accountability report card
required pursuant to Section 33126 and shall determine whether the
exceptions are either corrected or an acceptable plan of correction
has been developed.
(3) Commencing with the 2010-11 audit of local education agencies pursuant to this section
and subdivision (d) of Section 41320.1, each county superintendent of schools shall include in
the review of audit exceptions performed pursuant to this subdivision those audit exceptions
related to compliance with Section 49010 and the “free school guarantee” in Section 5 of Article

15
IX of the California Constitution and shall determine whether the exceptions are either corrected
or an acceptable plan of correction has been developed.
(j) Upon submission of the final audit report to the governing
board of each local educational agency and subsequent receipt of the
audit by the county superintendent of schools having jurisdiction
over the local educational agency, the county office of education
shall do all of the following:
(1) Review audit exceptions related to attendance, inventory of
equipment, internal control, and other miscellaneous exceptions.
Attendance exceptions or issues shall include, but not be limited to,
those related to revenue limits, adult education, and independent
study.
(2) Review audit exceptions related to school fees pursuant to paragraph (3) of subdivision (i).
(2)(3) If a description of the correction or plan of correction has
not been provided as part of the audit required by this section, then
the county superintendent of schools shall notify the local
educational agency and request the governing board of the local
educational agency to provide to the county superintendent of schools
a description of the corrections or plan of correction by March 15.
(3)(4) Review the description of correction or plan of correction and
determine its adequacy. If the description of the correction or plan
of correction is not adequate, the county superintendent of schools
shall require the local educational agency to resubmit that portion
of its response that is inadequate.
(k) Each county superintendent of schools shall certify to the
Superintendent and the Controller, not later than May 15, that his or
her staff has reviewed all audits of local educational agencies
under his or her jurisdiction for the prior fiscal year, that all
exceptions that the county superintendent was required to review were
reviewed, and that all of those exceptions, except as otherwise
noted in the certification, have been corrected by the local
educational agency or that an acceptable plan of correction has been
submitted to the county superintendent of schools. In addition, the
county superintendent shall identify, by local educational agency,
any attendance-related audit exception or exceptions involving state
funds, and require the local educational agency to which the audit
exceptions were directed to submit appropriate reporting forms for
processing by the Superintendent.
(l) In the audit of a local educational agency for a subsequent
year, the auditor shall review the correction or plan or plans of
correction submitted by the local educational agency to determine if
the exceptions have been resolved. If not, the auditor shall
immediately notify the appropriate county office of education and the
department and restate the exception in the audit report. After
receiving that notification, the department shall either consult with

16
the local educational agency to resolve the exception or require the
county superintendent of schools to follow up with the local
educational agency.
(2) If the auditor determines, in the audit of a local educational agency for a subsequent year,
that an exception related to school fees has not been corrected or that the local education agency
has a new audit exception related to school fees, the auditor shall immediately notify the
appropriate county office of education, the Controller, the Superintendent, and the Director of the
Department of Finance. Based on this notification, the Controller shall withhold one percent of
the amount authorized to be used for administrative costs [General Administration function
codes 7000–7999] from the next principal apportionment to the local educational agency, until
such time as the agency reimburses all illegally-collected fees, with applicable interest.
(m) (1) The Superintendent shall be responsible for ensuring that
local educational agencies have either corrected or developed plans
of correction for any one or more of the following:
(A) All federal and state compliance audit exceptions identified
in the audit.
(B) Any exceptions that the county superintendent certifies as of
May 15 have not been corrected.
(C) Any repeat audit exceptions that are not assigned to a county
superintendent to correct.
(D) All audit exceptions related to school fees. An audit exception related to school fees shall
not be deemed corrected until the local educational agency has, at a minimum, fully reimbursed
parents, guardians, and pupils, with interest. The amount of interest shall be calculated based on
the date the fee was collected and the applicable interest rates applied to actual cash held in the
local education agency's bank.
(2) In addition, the Superintendent shall be responsible for
ensuring that county superintendents of schools and each county board
of education that serves as the governing board of a local
educational agency either correct all audit exceptions identified in
the audits of county superintendents of schools and of the local
educational agencies for which the county boards of education serve
as the governing boards or develop acceptable plans of correction for
those exceptions.
(3) The Superintendent shall report annually to the Controller on
his or her actions to ensure that school districts, county
superintendents of schools, and each county board of education that
serves as the governing board of a school district have either
corrected or developed plans of correction for any of the exceptions
noted pursuant to paragraph (1).
(n) To facilitate correction of the exceptions identified by the
audits issued pursuant to this section, commencing with 2002-03
audits pursuant to this section, the Controller shall require
auditors to categorize audit exceptions in each audit report in a
manner that will make it clear to both the county superintendent of
schools and the Superintendent which exceptions they are responsible

17
for ensuring the correction of by a local educational agency. In
addition, the Controller annually shall select a sampling of county
superintendents of schools and perform a followup of the audit
resolution process of those county superintendents of schools and
report the results of that followup to the Superintendent and the
county superintendents of schools that were reviewed.
(o) County superintendents of schools shall adjust subsequent
local property tax requirements to correct audit exceptions relating
to local educational agency tax rates and tax revenues.
(p) If a governing board or county superintendent of schools fails
or is unable to make satisfactory arrangements for the audit
pursuant to this section, the Controller shall make arrangements for
the audit and the cost of the audit shall be paid from local
educational agency funds or the county school service fund, as the
case may be.
(q) Audits of regional occupational centers and programs are
subject to the provisions of this section.
(r) This section does not authorize examination of, or reports on,
the curriculum used or provided for in any local educational agency.
(s) Notwithstanding any other provision of law, a nonauditing,
management, or other consulting service to be provided to a local
educational agency by a certified public accounting firm while the
certified public accounting firm is performing an audit of the agency
pursuant to this section must be in accord with Government
Accounting Standards, Amendment No. 3, as published by the United
States General Accounting Office.

18
 Exhibit – Sample Classroom Notice as
Amended by Legislative Proposals

The Legislative Proposals would add the underlined text in paragraph #4 below.

19
Sample Williams Complaints Notice
CDE, T07-005 English, Arial font
Page 20 of 38

[California Department of Education]

[Categorical Programs Complaints Management]
[Legal and Audits Branch (July 2006)]

Parents, Guardians, Pupils, and Teachers:

Pursuant to California Education Code Section 35186, you are hereby notified that:

1. There should be sufficient textbooks and instructional materials. That means each
pupil, including English learners, must have a textbook or instructional materials, or
both, to use in class and to take home.

2. School facilities must be clean, safe, and maintained in good repair.

3. There should be no teacher vacancies or misassignments. There should be a

teacher assigned to each class and not a series of substitutes or other temporary
teachers. The teacher should have the proper credential to teach the class, including
the certification required to teach English learners if present.

Teacher vacancy means a position to which a single designated certificated

employee has not been assigned at the beginning of the year for an entire year or, if
the position is for a one-semester course, a position to which a single designated
certificated employee has not been assigned at the beginning of a semester for an
entire semester.

Misassignment means the placement of a certificated employee in a teaching or

services position for which the employee does not hold a legally recognized
certificate or credential or the placement of a certificated employee in a teaching or
services position that the employee is not otherwise authorized by statute to hold.

4. Pupils may not be charged fees, including security deposits, or be required to

purchase equipment or materials, to participate in a class or an extracurricular
activity.

5. A complaint form may be obtained at the school office, district office, or downloaded
from the school’s Web site at [district adds Web site address]. You may also
download a copy of the California Department of Education complaint form from the
following Web site: http://www.cde.ca.gov/re/cp/uc.

20
REGULATORY PROPOSALS

21
Proposed Addition of Section 198XX.X to Standards and Procedures for Audits of California
K‐12 Local Education Agencies [Title 5, Div. 1.5, Ch. 3, California Code of Regulations]

§ 198XX.X. Student Fee Revenues.

(a) For fiscal year 2010-11 and each fiscal year thereafter, perform the following procedures:
(1) Determine whether the school district or county office of education has collected revenue
derived from fees, deposits, charges or levies issued to students:

A. Charges for optional attendance as a spectator at a school or District sponsored activity.

(Hartzell, 35 Cal.3d 899, 911, fn. 14).
B. 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).
C. 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).
D. Charges for required medical and accident insurance for athletic team members, so long as
there is a waiver for financial hardship. (Education Code § 32221).
E. Charges for the rental or lease of personal property needed for District purposes, such as caps
and gowns for graduation ceremonies (Education Code § 38119).
F. 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).
G. 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).
H. 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).
I. 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).
J. Fees for transportation of pupils to places of summer employment. (Education Code §
39837).
K. Tuition fees charged to pupils whose parents are actual and legal residents of an adjacent
foreign country or an adjacent state. (Education Code §§ 48050-52).
L. Tuition fees collected from foreign students attending a District school pursuant to an F-1
visa, equal to the full unsubsidized per capita cost of providing education during the period of
attendance. (8 USC § 1184(m)(1)).
M. Fees for an optional fingerprinting program for kindergarten or other newly enrolled students,
if the fee does not exceed the actual costs associated with the program. (Education Code §
32390).
N. Fees for community classes in civic, vocational, literacy, health, homemaking, and technical
and general education, not to exceed the cost of maintaining the community classes.
(Education Code §§ 51810 and 51815).
O. Deposits for band instruments, music, uniforms and other regalia which school band
members take on excursions to foreign countries. (Education Code § 38120).

22
 P. Charges for eye safety devices, at a price not to exceed the district's actual costs, in specified
courses or activities in which students are engaged in, or are observing, an activity or the use
of hazardous substances likely to cause injury to the eyes. (Education Code § 32033).
Q. 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)).
R. Medical or hospital insurance for field trips that is made available by the school district.
(Education Code § 35331).
S. 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).
T. Charging for the parking of vehicles on school grounds. (Vehicle Code § 21113).

(b) If the school district or county office of education collected revenue derived from fees,
deposits, charges or levies issued to students that are not listed in subparagraphs (A)-(T) of
paragraph (1) of subdivision (a) of this section, include a finding in the Findings and
Recommendations section of the audit report showing the full amount of revenue collected and
accrued interest as disallowed.

NOTE: Authority cited: Sections 41020 and 41344 of the Education Code and Section 350 of Title V
of the California Code of Regulations.

23
Letter and Guidance to be sent to all County
and District Superintendents and Charter
School Administrators re: Student Fees

24
 November [xx], 2010

[ADDRESS]

Dear Superintendent [xx],

As you may know, a group of students recently filed a lawsuit in Los Angeles Superior
Court, alleging that many California public schools are illegally charging students mandatory
fees to participate in educational activities. The State of California and I were the only
defendants named in the suit, Doe, et al. v. State of California, et al., Case No. BC445151 (Los
Angeles Superior Court).

I am concerned about these allegations, and therefore I ask you to immediately review
your district’s policies and the practices of its schools to ensure that students are not charged any
illegal fees.

Article IX, Section 5 of the California Constitution states: “The Legislature shall provide
for a system of common schools by which a free school shall be kept up and supported in each
district.” In Hartzell v. Connell, 35 Cal.3d 899, 913 (1984), the Supreme Court of California
unambiguously held that this provision prohibits public schools from charging mandatory fees
for educational activities.

In guaranteeing “free” public schools, article IX, section 5 fixes the precise extent
of the financial burden which may be imposed on the right to an education – none.
A school which conditions a student’s participation in educational activities upon
the payment of a fee clearly is not a “free school.”

Id. at 911. The Court concluded that educational activities include both curricular and
extracurricular activities. See id. The Court also flatly rejected the argument that a fee-waiver
policy allows schools to charge fees for educational activities: “Educational opportunities must
be provided to all students without regard to their families’ ability or willingness to pay fees or
request special waivers.” Id. at 913. Thus, whenever a public school offers a curricular or
extracurricular program to students, the California Constitution requires that the school provide
all materials, supplies, and equipment – whether they are necessary or supplementary to the
program – to students free of charge.

The constitutional prohibition against requiring public school students to pay fees or
purchase materials for educational activities is codified in Education Code § 60070, which
prohibits school officials from requiring students to purchase instructional materials, and
reinforced by Title 5, Section 350 of the California Code of Regulations, which prohibits schools
from requiring students to pay any fee, deposit or other charge not specifically authorized by

25
law.1 Public schools may solicit and accept donations from parents or the broader community,
so long as the fundraising program is voluntary and contributing is not a requirement for
participating in an educational activity.

My administration is evaluating options to establish a state-level process that will help

identify impermissible fees to help ensure that districts and schools honor the free schools
guarantee. I hope that the process we establish will also provide guidance to school districts on
how they can raise additional money to support educational programming without resorting to
illegal school fees.

In the meantime, I ask you to review your district’s policies, to evaluate your schools’
practices, and to ensure that no students in your district are being required to pay fees or to
purchase materials or equipment for curricular and extracurricular activities.2 Please feel free to
contact [xx] if you have any questions.

Sincerely,

Enclosures

1
Although there are a few statutory exceptions authorizing public schools to charge students fees for
certain services or materials, these are narrow and quite limited. For example, schools can charge all students for
transportation to and from school and from summer employment (Education Code §§ 39807.5 & 39837), for food
served to students (Education Code §§ 38082 & 38204), for lost or damaged school property (Education Code §
48904), for school-provided insurance for field trips (Education Code § 35331), and for medical and accident
insurance for students participating in sports (Education Code § 32221). Schools also may charge students for field
trips and science camps, but they cannot prevent a student from participating for non-payment (Education Code §§
35330 & 35335). Additionally, if students create items in class and are allowed to take those items home with them
as personal property, schools may charge students for the direct cost of materials (Education Code § 17551).
Schools also can charge various fees for adult education (Education Code §§ 52612, 52615, & 60410) and
community education courses (Education Code §§ 51810 & 51815).

None of these exceptions appears to justify the fees alleged in Doe v. State, which include requiring
students to purchase required text and workbooks for academic courses; charging lab fees for science classes;
charging material fees as a condition for enrolling in fine art classes; and requiring students to purchase school-
issued P.E. uniforms. Additionally, they do not justify charging fees or requiring students to purchase equipment to
participate in extracurricular activities.
2
As you review internal policies and practices with your legal counsel, you may find the enclosed advisory
produced by the Fiscal Crisis and Management Assistance Team (FCMAT) and the list of other potential resources
useful starting points. My office is providing these materials for informational purposes only. The California
Department of Education is in the process of updating its Fiscal Management Advisory 97-02 (dated October 30,
1997) regarding “Fees, Deposits, and Other Charges.”

26
Letter Enclosure #1

27
http://www.fcmat.org/stories/storyReader$2261 (as of November 29, 2010)

FCMAT

What fees, if any, can be charged to students?

Question: The high school and the middle schools are currently charging the student fees listed
below.

$10 Science Lab Fees

$40 Cooking class fees

$20 Ceramics, Jewelry, Arts, and Wood shop fees

$45 Choir class

$25 Band class

AP exam fees (unknown at this time)

These lab fees provide funding for disposable, consumable materials used in each class.
Students are allowed (and encouraged) to take home whatever they make/test/produce in their
classes. Science teachers feel that the science lab fees should be treated as a shop fee so that lab
fees can be charged just like home economic, jewelry, and wood shop class in accordance with
Ed Code section 17551.

But some teachers think the students should not take any bio-hazardous waste home because of
the safety reason.

In 1992, the board approved the science fees. It is not included in the board policy but an
approval was noted in board minutes. The teachers now understand the free school guarantee
because I have shared the Fiscal Management Advisory 97-02 but they still feel that they have an
approval to charge certain fees from the board. I don't see any additional funding to offset the
current student lab fees but I also don't want any lawsuit from parents.

Please advise.

Response: The California Constitution provides for a free school system. Since 1874, the
California Supreme Court has interpreted this to mean that this entitles students to be educated at
the public’s expense. Title 5, California Code of Regulations, section 350, specifically states:

28
 "A pupil enrolled in a school shall not be required to pay any fee, deposit, or other
charge not specifically authorized by law."

The State Board of Education has reiterated that no fees are to be charged except where
specifically authorized by law. This understanding is based on the authority in Article IX,
Section 5 of the California Constitution. The Attorney General has also made it clear in many of
their opinions that school districts cannot levy fees as a condition for participation in any class,
whether elective or compulsory. Such unallowable fees include security deposits for locks,
lockers, books, class apparatus, musical instruments, uniforms or other equipment. Clearly,
students may not be charged fees for participation in either curricular or extracurricular
activities. And, whenever a particular curriculum or extra curricular program is adopted, all
supplies, both necessary and supplemental, must be provided free of charge by the district.

The district cannot establish a two tier educational system by defining some minimum
educational standard as the requirement and then tell students that "there is also a second, higher
standard which you can strive for, if you pay for rent, or provide some specified additional
supplies which the school does not provide."

The Education Code specifically authorizes certain fees which are not forbidden by the Code of
Regulations Title 5 prohibition. The following fees can be levied as authorized in the following
Education Code Sections:

Transportation to and from school as it is a non-educational activity. Education

Code section 39807.5

o Fees for transportation for extra curricular activities are not legal
as it is an integral part of some of these activities. If participation
in an extra curricular activity requires transportation and if the
school district provides it, it may not collect fees for it.

o By law, school districts must exempt from transportation charges

pupils of parents and guardians who are indigent as set forth in
rules and regulations adopted by the board. Furthermore, no
charge shall be made for the transportation of disabled students.

o The sum of state aid received for home to school transportation

and the parent fees collected may not exceed actual operating cost
of home to school transportation for each fiscal year. Education
Code section 39809.5

Transportation of pupils to places of summer employment. Education Code

section 39837

Charges for food served to pupils. Education Code sections 38082 (formally
39872), and 38084 (formally 39874)
29
 Sale of materials purchased from the incidental expense account to pupils in
classes for adults if provided in the governing board regulations. The proceeds of
all such sales shall be deposited in that account. Education code section 52615

Class materials can be sold to persons enrolled in adult classes. This may
include materials necessary for making of articles by students enrolled in adult
education. The materials shall be sold at no less than the cost to the district. Any
article made is then the property of the person who made it. Education code
sections 52612, 52615 and 17552

Charges can be imposed for textbooks used in adult classes or a refundable

deposit can be imposed on loaned books. Education code section 60410

Insurance for field trips. School districts must provide, or make available,
medical or hospital insurance for pupils participating on any excursion or field
trip, and the cost incurred by the school district "may be paid from the funds of
the district, or by the insured pupil or his or her parent or guardian." Education
Code section 35331

Lost or damaged books or other district supplies. If students fail to return

school property loaned to the pupil, or willfully cut, deface or otherwise injure
school property, the parent or guardian is liable for all damages not to exceed
$10,000. Education Code section 48904

o When the minor and parent are unable to pay for the damages or
to return the property, the school district or private school shall
provide a program of voluntary work for the minor in lieu of
payment of monetary damages.

Fees for adult school classes. Education Code section 52612.

o No fees are allowed for English and citizenship for foreigners,

classes in elementary subjects, and classes for which high school
credit is granted when taken by a person holding a high school
diploma.

o Adults may be charged a fee but high school students may not,
even though they may be enrolled in the same class.

o Adults may be charged for all or part of the costs of

transportation. Education Code section 39801.5.

Tuition fees charged to pupils whose parents are actual and legal residents of an
adjacent foreign country or an adjacent state. Education Code sections 48050,
48051 and 48502
30
 Apprentices shall not be charged fees of any kind in any district providing
instruction under Section 3074 of the Labor Code. Education Code section
48053.

Materials can be sold to a student for property the student has fabricated from
such materials for their own use as long as the price does not exceed direct cost of
the materials used and provided that the school district governing board has
authorized such sales pursuant to an adopted board policy. This applies to classes
such as wood shop or sewing where an item is taken home by the students, but not
when the items remain at school. It also does not apply to food in home economic
classes which is eaten as part of the course work. Education Code section 17551.

o This section does not authorize a blanket general fee to cover

multiple items nor does it mean an obligation to purchase the item.
This section must be read together with the constitutional free
school guarantee and the statutes requiring schools to provide
necessary school supplies and instructional materials. Whenever
students fabricate products in a class such as wood shop or sewing,
the wood or cloth for such products must be furnished free of
charge. If the student decides to take a particular item home, then
the law authorizes the district to sell that item to the student for the
cost of the materials. If the student does not want to take an item
home, then the district would keep the item and cannot charge or
otherwise penalize the student.

o The school district is recommended to have board adopted

policies and guidelines which specify the conditions for
implementing this section, keeping in mind the free school
guarantee.

Fees for an optional fingerprinting program for kindergarten or other newly

enrolled students can be assessed to the parent or guardian who chooses to
participate. The fee cannot exceed the actual costs associated with the program.
Education Code section 32390.

Students may be charged fees for community classes in civic, vocational,

literacy, health, homemaking, and technical and general education, not to exceed
the cost of maintaining the community classes. Governing boards may expend
from the district’s general fund any money that is budgeted for community
services to establish and maintain community service classes. Education Code
sections 51810 and 51815

o These community classes may be held at any time during the

school year as determined by the governing board. Education
Code section 51812
31
 o Community courses are not intended to teach required courses
that K-12 students must complete as part of their instructional
programs. They usually include classes in music, drama, art,
handicraft, science, literature, nature studdy, nature contacting,
aquatic sports, athletic and other such classes of general interest to
the community. These classes are primarily intended for adults
and are only open to minors who the governing board believes
would profit from such classes.

o Community service classes cannot be used as K-12 summer

school, except for the incidental attendance of students with special
interest in the subjects being taught.

o Schools are lawfully authorized to charge fees for community

service classes. But, in order to charge a fee for driver’s training,
schools must design their driver training programs to be
community service and not for the benefit of high school students.
(This principal would apply to any type of community service
class.) Education Code sections 51815 and Driving School
Association vs. San Mateo School Districts. 11 Cal App 4th
(1992), and California Association for Safety Education vs. Brown
30 Cal. App 4th (1994)

Fees for several statutory child care programs under certain conditions, while
precluding charges to children’s families whose children are enrolled in the state
preschool program or for services to severely handicapped children. A similar
before and after school child supervision program is authorized to charge fees to
participants as long as "no needy child who desires to participate shall be denied
the opportunity to participate because of inability to pay the fee". Education Code
sections 8263(f), 8250(d), 8265, 8487, 8488(b)

Actual cost of duplication of public records or student records. The California

Public Records Act authorizes public agencies to charge direct costs of
duplication for its records. The direct cost of duplication standard also applies to
reproductions of the prospectus of school curriculum. Education Code section
49091.14

o Direct costs of duplication phrase allows a local agency to

recover only the actual cost of copying documents and does not
include ancillary tasks associated with the retrieval, inspection and
handling of the file from which the copy is extracted. North
County Parents Organization et al vs. Department of Education 23
Cal App4th (1994)

32
 o School districts must specify the cost, if any, which will be
charged to the parent for reproducing copies of records in a
parental notice upon enrollment and in the annual notification of
parents of their rights required by the Education Code 48980.
Education Code 49063(h)

Charges for medical and accident insurance for athletic team members who can
afford to pay. All members of the athletic team must have such insurance.
Education Code section 32221.

o Whenever the school board determines that a team member or

parent or guardian are financially unable to pay the costs of
insurance protection, then the governing board shall require the
costs of the protection to be paid either out of funds of the district
or the student body.

Fees for field trips and excursions may be charged in connection with courses of
instruction or school related social, educational, cultural, athletic, or school band
activities. But, no pupil shall be prevented from making the field trip or excursion
because of lack of sufficient funds. Education Code section 35330.

o The governing board shall coordinate efforts of the community

service groups to supply funds for pupils in need of them.

o No student may be left behind due to insufficient funds, nor may

a student be left behind for failing or refusing to participate in
fund-raisers.

Fees for outdoor science camp programs. The fee cannot be mandatory - no
pupil shall be denied the opportunity to participate in a school camp program
because of nonpayment of the fee. Education code section 35335

o No student may be left behind due to insufficient funds, nor may

a student be left behind for failing or refusing to participate in
fund-raisers.

California law provides "Writing and drawing paper, pens, inks, blackboards, blackboard erasers,
crayons, lead pencils and other necessary supplies for the use of the schools shall be furnished
under direction of the governing boards of the school districts"(Education Code section 38118).
Based on this section, the Attorney General has concluded that materials and mechanical
drawing sets for art classes, cloth for dressmaking classes, wood for carpentry classes, gym suits
and shoes for physical education classes, bluebooks necessary for examinations, and paper on
which to write a theme or report when such a theme or report is a required assignment must be
furnished by school district without charge as necessary supplies. Such supplies appear to be
supplies that must be available to students in order to participate in regular classroom work in the
33
particular subjects involved. The State Department of Education supports this view. The general
rule as stated by the Attorney General is that "supplies must be furnished free of cost to students
when the supplies are what might be termed school supplies and are necessary in order for the
students to pursue a course of study". So rather than state what materials a school district is not
obligated to furnish, the Attorney General limits the discussion to the question above.

The Attorney General’s use of term school supplies does exclude those items or materials that
are essential regardless of whether or not the person is a student. For example, a district is not
obligated to furnish corrective lenses and clothes as these items are needed whether or not the
person is a student.

Also, since school districts are required to furnish necessary supplies, they are also responsible
for regular upkeep and maintenance of those supplies. Attempts to impose an unconditional
obligation on pupils to maintain and repair school district equipment are too broad. However, a
student may be charged for damage of personal property loaned to a pupil where he or she
willfully cuts, defaces, or otherwise injures the property as a result of pupil misconduct. This
law allows the district to impose requirements for proper care and usage and consequent liability
for mishandling, but not liability where damage may result from normal wear and tear, or from
an intervening cause or a third party.

Districts can recommend, and even make available, strictly optional materials for the students’
personal benefit. The law allows parents or other individuals as well as school districts to
directly purchase instructional materials from the state adopted lists (Education Code section
60310). Also, teachers may make available a list of suppliers for tutorials, books, supplemental
educational materials, or sell inexpensive quality paperback literature for leisure reading.
Teachers may encourage students to use appropriate study aids as long as these purchases are
strictly optional and in no way part of the regular instructional program. If such things are not
part of the adopted curriculum or part of an established extracurricular program, and there is no
penalty for failure to use or purchase these materials, such materials are not necessary supplies.
The opposite arises, though, when such enrichment literature or materials are used as
supplemental instructional material for a class or is an established part of an extracurricular
activity as it then becomes a necessary supply which must be provided or loaned free of charge.
Its not whether or not a grade is assigned that is the crucial point. It is the participation that
counts and whether or not the material used in the instructional or extracurricular activity
becomes a necessary school supply.

Basically, the opinions of the Attorney General indicate that charges may not be levied for the
following:

A deposit in the nature of a guarantee that the district would be reimbursed for
loss to the district on account of breakage, damage to, or loss of school property

An admission charge to an exhibit, fair, theater or similar activity for instruction

or extracurricular purposes when a visit to such places is part of the district’s
educational program
34
 A tuition fee or charge as a condition to enrollment in any class or course of
instruction, including a fee for attendance in a summer or vacation school, a
registration fee, a fee for a catalog of courses, a fee for an examination in a
subject, a late registration or program change fee, a fee for the issuance of a
diploma or certificate, or a charge for lodging.

Membership fees in a student body or any student organization as a condition

for enrollment or participation in athletic or other curricular or extracurricular
activities sponsored by the school (ASB cards may be sold to allow discounts or
free entrance to games and social events).

Instructional materials must be furnished without charge to elementary and high

school students. Adults may be assessed a charge for books not to exceed their
true cost to the district. Education Code sections 60070 and 60410.

Fees to enroll and/or participate in activities of career technical student

organizations which are part of a career technical class or course or instruction
offered for credit. Education Code section 52375.

Pupils shall not be charged for transportation associated with activities of career
technical student organizations which are part of a career technical class or course
of instruction offered for credit when those activities are integral to assisting the
pupil to achieve the career objectives of the class or course. Education Code
section 52373

o The exception to this is when the transportation is between the

regular full time day schools that they would attend and the regular
full time occupational training classes attended by them as
provided by a regional occupational center or program. Education
Code section 39807.5.

On April 20, 1984, the Hartzell vs. Connell California Supreme Court decision raised serious
questions about the imposition of non-statutory fees for extracurricular activities. The lead
opinion on this matter is that fees may be charged for activities that are recreational, but not for
those that are educational. Since extracurricular activities are described in the opinion as an
integral component of public education, they are a part of the educational program, and thus
must be free. The court further stated that the "…imposition of fees as a precondition for
participation in non-statutory educational programs offered by public high school districts on a
non-credit basis violates the free school guarantee. The constitutional defect in such fees can
neither be corrected by providing waivers to indigent students nor justified by pleading financial
hardship." It is also the opinion of CDE and the Hartzell opinion that a school district may not
charge a fee or require students to purchase necessary materials even if the district maintains a
special fund to assist students with financial need or waives such fee or charge for students with
financial need as the fee or charge still remains a condition for all other students not being
assisted financially. A fee waiver policy for needy students does not make the fee allowable.
35
For the subject of gym or physical education clothes, Education Code section 49066 states that
"No grade of a pupil participating in a physical education class may be adversely affected due to
the fact that the pupil does not wear standardized physical education apparel where the failure to
wear such apparel arises from circumstances beyond the control of the pupil", such as lack of
sufficient funds. The California Department of Education has stated the position that a school
district may require students to purchase their own gym clothes of a district specified design and
color so long as the design and color are of a type sold for general wear outside of school. Once
the required gym uniforms become specialized in terms of logos, school name or other similar
characteristics not found on clothing for general use outside of school, they are considered
school supplies and the district must provide the uniforms free of charge.

In specific answer to your question, FCMAT is not able to provide legal advice, but since you
are worried about the current charges, review the information we have provided above and see
how the current charges that are occurring line up with the above information. And, if you have
concerns about what is truly legal or not legal after reviewing the above, you should check with
your legal counsel. Although staff is mentioning Education Code section 17551, this section
does not allow for fees to be charged up front…basically this code section means that all students
can make the items regardless of paying fees or material charges, but at the end of the year if
they want to bring the items home the district can charge for the actual cost of materials in
making the item. This code does not authorize the class fees up front as all students are entitled
to make the same items, whether or not they have money to do so.

Also, remember that board policy can be stricter than the law, but the law takes precedence over
board policy if they are in disagreement. Again, this is why you should get your legal counsel
involved.

2/13/07

36
Letter Enclosure #2

37
Informational Resources regarding Student Fees in California K-12 Public Schools
1) The California Department of Education (CDE) Fiscal Management Advisory 97-02
dated October 30, 1997 (which superseded Fiscal Management Advisory 87-03)
currently being revised by CDE

2) “Guidelines for Student Fees” document produced by the Tulare County Counsel, dated
December 7, 2004
(available at http://wwwstatic.kern.org/gems/fcmat/StudentfeesguidelinesTulareC.pdf as
of November 19, 2010)

3) San Diego Unified School District’s Guidelines and Resources re: Student Fees:
(available at http://www.sandi.net/2182201151777237/ as of November 19, 2010)

4) Hartzell v. Connell, 35 Cal.3d 899 (1984)

5) California Attorney General Opinion No. 04-501, (September 14, 2004)

(available at http://ag.ca.gov/opinions/pdfs/04-501.pdf as of November 19, 2010)

6) California Constitution, Article IX, Section 5

7) California Code of Regulations, Title 5, Section 350

38