State Superintendent of Public Instruction Tom Torlakson, the California State Board of Education, the state Department of Education and the attorney general's office all want a judge to drop a lawsuit that seeks to hold the state accountable for school districts that illegally charge students to participate in classes and extracurricular activities.
Mark Rosenbaum, chief counsel of the ACLU of Southern California, will appear today before Judge Carl West in Los Angeles County Superior Court to argue against the lawsuit being thrown out.
The ACLU says it found widespread instances of school districts charging parents and students exorbitant and improper fees for books, educational materials and extracurricular activities. The lawsuit accuses the state of failing to enforce the state's longstanding constitutional guarantee to free public education and a 1984 state Supreme Court decision that further upheld the guarantee.
In its recent filings, however, the state pushes blame for illegal fees on local school districts and says it is the Legislature's responsibility – not that of the Department of Education, Board of Education or attorney general's office – to ensure schools uphold the state's guarantee to a free education.
Attorneys for the state's education leaders further declare that the lawsuit should be dismissed because the Legislature never expressly said enforcement of the constitutional guarantee was the state's job.
"Although Plaintiffs allege that defendants 'sat idly' while school districts charged illegal fees, they do not allege what the Education defendants should have done or failed to do under current law," according to a court filing. "In short, Plaintiffs allege that the Education defendants did not prevent (local education agencies) from taking unauthorized actions – a duty the law does not impose on them."
The state Supreme Court has dismissed similar defenses. For example, the court stated when ruling in the 1992 case of Butt v. State of California:
It therefore appears well settled that the California Constitution makes public education uniquely a fundamental concern of the State and prohibits maintenance and operation of the common public school system in a way which denies basic educational equality to the students of particular districts.
The State itself bears the ultimate authority and responsibility to ensure that its district-based system of common schools provides basic equality of educational opportunity.
Kathy Christie, a vice president for the Education Commission of the States, said the issue is complicated by the fact that many educators want less bureaucracy.
"It's a tough one because there isn't a consistent level of passion about the rightness and wrongness of such a policy," Christie said. "When you start saying that (the state) should be ensuring those local entities are enforcing, there's a lot of management that has to happen to be able to pull that off."
In 2010, the American Civil Liberties Union, on behalf of students and parents, filed a class-action lawsuit [PDF] against the state contending that schools were illegally charging fees for educational materials at a disturbing rate. Then-Gov. Arnold Schwarzenegger settled with the ACLU and pledged to support a law that would create an enforcement mechanism addressing the issue.
The resulting legislation, by Assemblyman Ricardo Lara, D-South Gate, would have created a complaint process for parents and required annual audits of school districts to make sure they are not making parents and children pay for uniforms, classroom materials and extra activities, like cheerleading.
Although the bill was supported by the Legislature, Gov. Jerry Brown vetoed the measure, calling it "the wrong approach."
"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," his veto message says. "This goes too far."
ACLU counsel Rosenbaum told California Watch that the dismissal of the ACLU's latest lawsuit "would be a green light for districts to thumb their nose at our 130-year system of free schools, ending any real hope already-disadvantaged students have of using the public schools to achieve the American Dream."
He added: "We've documented that tens of thousands of children are being charged to receive books and other educational materials in their classes, resulting in a pay-to-go-to-school system, placing the brunt of our state's budget burdens on innocent children. This is a dual school system that would make Horace Mann shudder."
In November 2010, the Clovis Unified School District paid three families $250,000 to settle a 2009 lawsuit over illegal fees. About $25,000 of the settlement was set aside for 18 months in case new allegations of illegal charges surfaced, according to The Fresno Bee. Still, others have been slow to curb illegal practices, according to parents and a whistleblower who found instances of schools of not allowing non-paying students to participate in activities.