Regarding Student Fees, Donations and Fundraising
Recently the issue of fees, charges, deposits, donations and fundraising related to courses and activities has been at the forefront of public attention locally and nationally. This document is provided by District Legal Services as a guide for District staff and parents, with the twin goals of school-community cooperation to support programs and legal compliance while providing that support. Taken as a whole, the intent of this Guidance 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.
This Guidance contains five sections. The first briefly summarizes the general rule precluding mandatory fees, charges and deposits for educational activities. The second section provides a chronological summary of the development of the law – i.e. the development of the general rule described in the first section. Following that, in Section III, is a point-by-point summary of the exceptions to the general rule that specifically allow fees and charges for certain activities. The two final sections address related topics that are often associated with discussions and debate on the issue of fees, and are key elements in the lawful support of valued educational programs – the topics of donations and fundraising activities for programs, classes, schools, etc.
I. Summary of Rule
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. Chronological Summary of the Development of the Rule
III. Exceptions: Permissible Mandatory Fees/Charges/Deposits
The following are specific exceptions to the prohibition on fees, charges and deposits at the kindergarten through 12th grade level (some legal provisions related to child care programs and adult education are not listed here). These fees, charges and deposits are legally permissible because they are specifically permitted by law. (Note: This list is based on legal authorizations, but the inclusion of a permissible fee, charge or deposit on this list does not necessarily mean that District schools currently assess the fee, charge or deposit). The following fees, charges, and deposits are permissible:
As is referenced above, 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.” As is also noted above, 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 voluntarily.
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.