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California must keep free education truly free

As California's public schools have lost state funding, they've increasingly turned to a sort of 'pay to learn' system. It's unconstitutional.

May 24, 2011

The California Constitution is unequivocal: "A general diffusion of knowledge and intelligence" is essential to the "preservation of the rights and liberties of the people." Therefore, it says, the state shall provide a free education to its children.

That provision — Article IX — was enacted at the Constitutional Convention of 1878-79. Today, California has nearly 10,000 taxpayer-supported public schools serving just over 6 million students. Gratis.

Except for one little hitch. It's true that you can enroll and attend class at a California public school without paying an entrance fee or a tuition bill. But what if the teacher tells you that it's going to cost $90 to purchase the novels that you must read to pass AP English, or that you have to pay $30 for your Spanish workbook? Is your education still free? What if you want to join the basketball team but the school hits you with a $50 uniform fee? Is basketball part of your education, and if so, can the school make you pay to play?

Charging for instructional materials as well as for art, music and sports programs is increasingly common in the state's public schools, according to the American Civil Liberties Union, which last year filed a lawsuit arguing that such fees violate Article IX. In December, a tentative settlement was reached with the Schwarzenegger administration, but it was rejected by the judge in the case on technical grounds. So Assemblyman Ricardo Lara (D-Bell Gardens) has proposed legislation to reaffirm that student fees are illegal and to set up an enforcement mechanism; his bill, AB 165, will be considered by the Assembly Appropriations Committee on Friday.

Not surprisingly, many schools are displeased at the thought of losing the fees. They have already absorbed more than $18 billion in state cuts over the last three years, resulting in shorter school years and larger class sizes as well as reductions in program offerings for students. Further cuts could be ahead if the Legislature rejects Gov. Jerry Brown's plan to extend the 2009 temporary tax hikes. As the crisis has deepened, schools have turned to fees, among other things, to replace some of the lost dollars. Now they're at risk of losing that money too, which they say could require them to cut still more academic programs and extracurricular activities.

California was once near the top of the national list in per-pupil spending, but it is now close to the bottom. So it's tempting to see student fees as a reasonable stopgap measure to help pick up some of the slack. But charging fees to students to offset budget cuts is not legal, just as it would not be legal to announce that in an effort to make ends meet, schools will no longer accept students of Filipino descent, or girls. Student fees deny opportunities to low-income students and put them at an academic disadvantage. Nearly 30 years ago, the California Supreme Court reached exactly that conclusion.

"Under the California Constitution … access to public education is a right enjoyed by all — not a commodity for sale," the court ruled in Hartzell vs. Connell in 1984. "Educational opportunities must be provided to all students without regard to their families' ability or willingness to pay fees…. This fundamental feature of public education is not contingent upon the inevitably fluctuating financial health of local school districts. A solution to those financial difficulties must be found elsewhere."

That was the correct decision a generation ago, and it is the correct decision today. It applies, the court held, not just to lab fees and book fees for traditional academic classes but to extracurricular activities as well, because they are an "integral component" of a child's education. In an effort to find middle ground, some have suggested keeping the fees while providing a waiver for low-income students, but the court rejected that idea in 1984 too. After all, why should poorer families have to request charity every time they can't pay for a workbook? And besides, if the Constitution says schools must be free, then they must be free for everyone, rich or poor.

Schools still have fundraising options that will meet constitutional scrutiny. They can solicit voluntary donations for general needs or for specific programs such as the basketball team or the ninth-grade class trip. While it's true that a voluntary system may not raise as much as a mandatory one, at least it's legal.

The rules banning fees do not have to be carried to a ludicrous level. Just because sneakers are required for gym class doesn't mean the school needs to pay for them. That would defy common sense. Other costs, such as pencils and three-ring binders, traditionally fall on parents as well, and don't seem to cause a significant problem. Furthermore, it would not be reasonable for non-school organizations — such as the PTA or booster clubs or organizations that use school buildings after hours for activities unrelated to regular academic or official extracurricular activities — to be barred from charging fees.

The basic rule, however, is that a public school education is free. It's true that California's schools are underfunded and that they need more money if they're going to provide a first-class education. But charging students to participate in academic and extracurricular programs is not the answer. That's why the Legislature should pass AB 165.

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