Request By:
Honorable John J. Slattery, Jr.
General Counsel
Kentucky Education Association
101 W. Walnut Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Assistant Attorney General
As General Counsel for the Kentucky Education Association you have asked the Office of the Attorney General to consider some of the existing problems concerning implementation of the law relating to money to be used by schools in lieu of student fees. You related that the executive budget passed by the General Assembly in its 1976 regular session contains an item in the amount of $4,400,000 for the 1976-77 school year (HB 374, § 38m). As you stated, this allocation is entitled "Replacement of Student Fees" and provides that the money is: "To be distributed to local school districts in accordance with appropriate administrative regulations to be promulgated by the Department of Education, for the replacement of student fees."
You further noted that the Department of Education has adopted regulation 702 KAR 1:090 which provides that the money allotted will be distributed on the basis of average daily attendance in the schools.
You stated the problem facing teachers and school systems is based primarily on the question of what constitutes "student fees." You related it was your understanding that students may be required to pay for materials, supplies, etc., if they become the property of the student. For example, a student in industrial arts class could be required to pay for lumber that is used to make bookshelves when the bookshelves would become the property of the student, or for dress material in a sewing class, or paints and canvas in an art class. However, you indicated the issues regarding what are student fees may essentially be brought into two categories:
1. There are school systems in the state which have applied a strict definition and stated that all money paid by students is to be considered "student fees." This policy applies even to the examples cited above.
May a board of education prohibit payment by students for things other than "student fees" solely under the authority of HB 374, § 38m and 702 KAR 1:090?
2. Is payment for the following listed items or activities permissible and not prohibited by the subject legislation and regulation?
Payment by a student for:
(a) Senior class trip
(b) School annual or yearbook
(c) Field trips to museums, concerts, etc.
(d) Workbooks in connection with a particular text or course of study
(e) Subscriptions to supplemental reading material in a course such as "Weekly Reader," "Science World," etc., where the subscription is in the name of the student and becomes the property of the student.
This office, in OAG 75-619, copy attached, concluded that a local board of education has the authority to charge a reasonable fee for general school supplies. This opinion was written prior to the appropriation by the 1976 General Assembly made to work toward the replacement of student fees. Clearly the budgeted amounts for the current and next school year will not serve to entirely pay the expenses for which students have been charged in the past. Thus, the questions you have presented chiefly ask for this office to list those items for which students may still be charged a fee and for which they may not. We do not feel it is appropriate for this office to make such a list. We do believe it appropriate nevertheless to make reference to those guidelines established by the State Board of Education regulation.
The administrative regulation, 702 KAR 1:090, specifically states that its function is "to provide guidelines for the distribution and use of funds appropriated for replacement of instructional fees. " (Emphasis ours.) From the line of cases on the issue of charging student fees listed in OAG 75-619, supra, we believe it is discernable that fee schedules are usually capable of being broken down into two types -- curriculum or instructional fees and extracurricular or school activities fees. What are curriculum or instructional fees has been viewed against the test of whether the charge is for "necessary elements of any school's activity" or the "integral fundamental part of the elementary and secondary education" test. See Bond v. Public Schools of Ann Harbor School District, 383 Mich. 693, 178 N.W. 2d 484 (1970). On the other hand are the charges for materials outside of or in addition to the regular academic courses or curriculum of a school. Id. It would clearly seem that the State Board of Education believes the appropriation from the General Assembly is for replacement of the curriculum-instructional type of fee. This position is further buttressed by a statement of policy from Dr. James B. Graham, State Superintendent of Public Instruction, copy attached, which was mailed to all of the local superintendents under a cover memorandum dated June 16, 1976. This policy statement reads as follows:
"No pupil shall be charged a fee for the enrollment in, completion of, or full participation in any regular public day school program, grades one through eight; or in any course required by State Board of Education regulations for high school graduation, excluding fees for items of personal attire, use of musical instruments, or for materials or equipment which shall remain the property of the pupil. Any portion of the state allotment to the local school district for fee replacement, not utilized in the elimination of student fees as above described, shall be used toward reduction or replacement of any other type of fees, deposits, rentals, or service charges."
Therefore, in as direct a response as we can make to your questions, we believe you are correct in your assessment that the budget was intended by the General Assembly, and so taken by the State Board of Education and Superintendent of Public Instruction, to proscribe denial of a particular course of study to the student because that course might have prohibitive fees connected with it. We further agree with you that the appropriation was not intended to eliminate optional and nonacademic school activities charges required to be paid for by a student. Until a larger appropriation is made for the replacement of a wider scope of student fees, we do not believe students will escape being charged for materials for courses and projects which are not required or for activities which are optional or extra-curricular unless a local board of education appropriates local education dollars for such purposes.