Unexpected Veto of Student Fee Legislation (AB 165) Should Not Result in Reduced Vigilance

On Saturday, October 8, 2011 Governor Brown vetoed AB 165, the student fee legislation that would have codified existing student fee restrictions and authorizations, added student fee monitoring to the existing Williams settlement accountability and oversight processes, and resolved the ACLU’s class action lawsuit against the state.  The veto was a surprise to most who followed the bill through the legislative process, especially in light of the list of statewide organizations that either supported the bill or took a neutral position.

The Governor’s veto message was revealing.  He mentioned that the legislation “responds to a lawsuit filed by the ACLU against the state,” but he implied the finger should be pointed not at the state but elsewhere: “Local district compliance with this right [to a free public education] is essential, and those who fail should be held accountable.”  He stated, however, that in his opinion AB 165 “takes the wrong approach to getting there,” concluding: “The bill would mandate that every single classroom in California post a detailed notice and that all 1,042 school districts and over 1,200 charter schools follow specific complaint, hearing and audit procedures, even where there have been no complaints, let alone evidence of any violation.  This goes too far.”  The message appears clear -- do not punish all districts for the practices of some districts.  (See complete veto message here)

By not requiring the time and expense associated with the multiple accountability and oversight measures in the legislation, the veto provides some welcome relief for districts who are already struggling to do what is right for kids with too few resources to provide the programs those kids deserve.  The other side of that coin is that the stay on the ACLU lawsuit will likely be lifted, the litigation will resume, and local districts and school programs may face a new wave of individualized scrutiny.  As we have commented in several forums, in our opinion the student fee “landscape” has changed permanently, and those who have pushed this issue in local districts and at the state level will continue to do so.  We advise districts to keep in place those processes and practices designed to educate staff and support organizations about the requirements of the “free school guarantee,” and to thereby avoid violations.The substantive law remains as it was based on the Supreme Court's 1984 decision in Hartzell v. Connell and Title 5 regulations: under the California constitution, school districts may not charge for educational activities, including extracurricular activities that are an "integral component" of the educational program, nor may they use waivers based on inability to pay as a way around prohibition.  Under Title 5, school districts may charge only those fees that are specifically authorized by law.

In July, the judge overseeing the ACLU lawsuit stated his "intent to defer briefing on the Demurrers [filed by the State Defendants] as long as it appears AB 165 is headed for passage," but that he would "reset the briefing schedule and hearing date" if that changes.  In the weeks and months ahead we will monitor the ACLU lawsuit, and other developments in fee monitoring around the state, and report on developments as they occur.

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