Guidelines for District Staff and Parents Regarding Student Fees, Donations and Fundraising
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.
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,
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
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.
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
– The California Constitution provision known as the “free school
guarantee” was adopted in its current form – “The Legislature shall
provide for a system of common schools by which a free school shall be
kept up and supported in each district at least six months in every
year, after the first year in which a school has been established.”
(Ca. Constitution, Article IX, Section 5).
- 1940 – The State
Board of Education adopted a regulation designed to implement the “free
school guarantee,” which states, in full: “A pupil enrolled in a school
shall not be required to pay any fee, deposit, or other charge not
specifically authorized by law.” (Title 5, California Code of
Regulations (CCR), § 350).
- 1942 – The California Attorney
General issued an opinion stating, among other things, that school
districts may not require security deposits for locks, lockers, books,
class apparatus, musical instruments, uniforms, or other equipment, and
that students may not be required to pay a membership fee in any
student body organization as a condition of participation in curricular
or extracurricular activities. The Attorney General also concluded that
all “necessary school supplies” for a course or course of study must be
provided by the school district. The Attorney General distinguished
necessary supplies from those that are needed regardless of whether or
not the person is a student – e.g. glasses, clothes, etc.
(Ops.Ca.Atty.Gen. No. NS-4114).
- 1979 – The California
Legislative Counsel issued an opinion interpreting the 1940 State Board
regulation (Title 5, CCR § 350), concluding that fees for musical
instruments used in extracurricular band, special uniforms used in
extracurricular activities, club dues, and extracurricular athletic
teams violate Section 350 and the “free school guarantee.”
(Ops.Cal.Leg.Counsel No. 17036 [November 16, 1979]).
- 1979 –
The California Department of Education (CDE) issued a position paper
stating that requiring membership fees as a condition of participation
in athletics or other educational activities violates the “free school”
guarantee as applied by Title 5, CCR section 350. (CDE Guidance on
Fees, Deposits and Charges in the Public Schools).
- 1982 – The
California Legislative Counsel issued another opinion interpreting
Title 5, CCR section 350, concluding that fees for school-sponsored
extracurricular activities are unconstitutional. The opinion stated
that even though such programs are not required by law, “once the
programs are provided, the governing board has no authority to impose a
fee, charge or deposit for the program.” (Ops.Cal.Leg.Counsel No. 18293
[October 13, 1982]).
- 1984 – The California Supreme Court decided Hartzell v. Connell,
a challenge to the imposition of fees for extra-curricular activities
by a public school district, imposed by a district to address a funding
shortage due to declining enrollment and the passage of Proposition 13.
(35 Cal.3d 899). The Court concluded that the “free school guarantee”
extends to all programs that are “educational in character,” and that
extracurricular activities such as sports, drama, vocal and
instrumental music programs are “educational in character.” The Court
stated that “the free school guarantee reflects the people’s judgment
that a child’s public education is too important to be left to the
budgetary circumstances and decisions of individual families.” The
Court also concluded that:
- An activity need not result in course credit to be “educational in character.”
- A waiver process based on financial need or inability to pay does not make an otherwise impermissible fee permissible.
5, CCR section 350 is a reasonable interpretation of the “free school
guarantee,” and a valid exercise of authority of the State Board of
- The Legislative Counsel and CDE opinions addressed above were accurate summaries of the law.
- 1992 – The California Supreme Court concluded, in Arcadia Unified SD v. State Department of Education,
that a state law authorizing the charging of transportation fees does
not violate the “free school guarantee,” because transportation is not
an educational activity and the law contains a waiver provision for
indigent students. (2 Cal.4th 251).
- 1992 – A California appellate court concluded, in Driving School Assn. of Ca. v. San Mateo Union High SD,
that a high school district does not have the authority to charge high
school students under 18 a fee for driver training courses offered
through the district’s adult education program, despite the existence
of a statutory authorization to charge fees for adult school classes.
(11 Cal.App.4th 1513).
- 1994 – A California appellate court concluded, in Ca. Assn. for Safety Education v. Brown, that fees charged to students for driver training violate the “free school guarantee.” (30 Cal.App.4th 1264).
– The California Attorney General issued an opinion concluding that a
school district may not require the parents of students with unexcused
absences to reimburse the district for its reduction in state funding
caused by the unexcused absences. (80 Ops.Cal.Atty.Gen. 107).
- 1997 – The CDE issued a further position paper regarding fees, updating it in the wake of Hartzell and Arcadia,
and reinforcing the 1942 Attorney General opinion. (CDE Guidance on
Fees, Deposits and Charges in the Public Schools, Advisory 97-02).
– The California Attorney General issued an opinion concluding that a
school district may refuse to use school funds to pay for the annual
cleaning and repair of football equipment if the funds to purchase the
equipment were raised through private, voluntary donations. (81
- 2004 – The California Attorney
General issued an opinion concluding that a school district may not
charge a $20 application fee to cover the costs of processing an
interdistrict attendance request submitted by a student from another
school district, because the fee is not authorized by a statute and
therefore violates Title 5, CCR section 350. (87 Ops.Cal.Atty.Gen 132).
III. Exceptions: Permissible Mandatory Fees/Charges/Deposits
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:
- Charges for optional attendance as a spectator at a school or District sponsored activity. (Hartzell, 35 Cal.3d 899, 911, fn. 14).
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
- 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).
for required medical and accident insurance for athletic team members,
so long as there is a waiver for financial hardship. (Education Code §
- 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).
- Charging for the parking of vehicles on school grounds. (Vehicle Code § 21113).
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).
fees charged to pupils whose parents are actual and legal residents of
an adjacent foreign country or an adjacent state. (Education Code §§
- 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)).
- 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).
- 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).
for band instruments, music, uniforms and other regalia which school
band members take on excursions to foreign countries. (Education Code §
- 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).
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.
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.
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.