Down with the Cap & Gown? Recent CDE Guidance Requires School Districts to Reconsider Options for Graduation Attire

As adopted in 1879, the California Constitution includes a “free school guarantee”: “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.”  (Cal. Const. art. IX, § 5.)  The Supreme Court has interpreted Article IX of the California Constitution to mandate education for all students at public expense.  (See Ward v. Flood (1874) 48 Cal. 36, 51.) Section 350 of Title 5 of the California Code of Regulations and Education Code section 49011 prohibit school districts from charging fees unless “otherwise allowed by law.” Exceptions allow fees in certain, specific circumstances, with certain limitations. The California Department of Education’s Fiscal Management Advisory 12-02, dated April 24, 2013, Pupil Fees, Deposits, and Other Charges, describes circumstances when fees may or may not be permitted.

In an Addendum to Fiscal Management Advisory 12-02 dated October 4, 2013, CDE advised that school districts (and other public K-12 educational entities) may not require students to purchase or pay for a cap and gown if wearing a cap and gown is a condition of participation in a graduation ceremony. Because the Supreme Court has held a high school graduation ceremony to be “an integral part of the educational process,” CDE determined high school graduation is an “educational activity” for which a school fee cannot be charged.  (Addendum 12-02, citing Sands v. Morongo Unified School District (1991) 53 Cal.3d 863, 873–874.)

While school districts and other public K-12 educational entities may rent gowns and provide them free of charge to students pursuant to Education Code section 38119, CDE will find a district violates the pupil fee statutes if it requires students to purchase a cap and gown to participate in the graduation ceremony. If students are required to wear a cap and gown, the district must supply the cap and gown to students; districts may not limit distribution of district-provided caps and gowns to students who are unable to pay. Although students may choose to purchase a cap and gown from a vendor, they cannot be required to do so.

In light of this recent guidance, school districts and other educational entities that host graduation ceremonies where caps and gowns are required must assess their options to ensure compliance with the school fee laws. Districts may choose to discontinue use of the ceremonial graduation garb, or may opt to provide caps and gowns to all students who do not wish to purchase or rent their own.  It remains to be seen whether the centuries-old “Pomp and Circumstance” graduation traditions will soon be history.

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