Our nation's public schools represent the highest and most revolutionary ideal of American democracy that through education open on an equal basis to all, every child can achieve his or her full potential as consequence of merit and hard work. The California Constitution, like the constitutions of every state in the Union, accordingly entitles the children of this State to a free and equal education. But, as an investigation by the ACLU of Southern California released today has found, there is no system of free public education in California: public schools throughout the State openly ignore this constitutional right by requiring students to pay fees and purchase assigned materials for academic courses and for school-sponsored extracurricular activities.
Since its adoption in 1879, Article IX, Section 5 of the California Constitution has required that the State provide a system of free public schools. In 1984, the California Supreme Court ruled unequivocally in Hartzell v. Connell that "[i]n guaranteeing 'free' public schools, article IX section 5 fixes the precise extent of the financial burden which may be imposed on the right to an education 'none.' Accordingly, public schools cannot charge students or families any fees as a condition for participating in 'educational programs,' including both curricular and extracurricular activities. Our investigation, however, uncovered more than 50 public school districts in which at least one high school openly acknowledges on its website that students must pay fees in order to participate in educational programs. The illegal fees that we discovered include numerous mandatory fees related to core academic courses that fulfill high school graduation requirements requiring students to purchase required text and workbooks for academic courses, charging lab fees for science classes, charging material fees for fine arts classes, and requiring students to purchase school-issued P.E. uniforms. They also included many instances where schools charge students hundreds, and in some cases thousands, of dollars to participate in school-sponsored extracurricular activities.
Despite the venerable vintage of the right to a free public education and the Supreme Court's clear ruling in 1984 that fees for educational programs are illegal, the State has done nothing as its public school districts blatantly violate the free schools guarantee by requiring students to pay fees and purchase assigned materials for academic courses. Accordingly, together with the ACLU of Northern California, the ACLU of San Diego and Imperial Counties, and the law firm Morrison & Foerster LLP, we filed a lawsuit today on behalf of two public school students, who are proceeding under pseudonyms, that seeks to compel the State to establish a system for monitoring school districts and ensuring they comply with the free schools clause. Because the State is the ultimate guarantor of students''' right to a free and equal education, it is the State'''s responsibility to ensure that 'free' means 'free.'
As the facts of this case demonstrate, the State's abdication of this responsibility has real and appreciable impacts on children across California: students who are unable to pay the fees or purchase the materials are disadvantaged academically and overtly humiliated by teachers and school officials. For example, Plaintiff Jason Roe was required to purchase an English workbook, a Chemistry lab manual, a Spanish language workbook, and a student agenda. Jason's mother was informed by a school official that, if Jason did not purchase an English workbook, the only way he could access a school-provided copy to complete homework assignments was by going to the school library after school. Because Jason's family could afford to pay only a portion of the fees for these required materials, Jason was compelled to start school without his Chemistry manual and Spanish workbook.
Although our investigation and the lawsuit we filed today cast an important spotlight on this widespread and illegal practice, it is important to keep in mind the context in which public schools are operating today. School districts' pursuit of this plainly illegal funding stream is a symptom of the broader dysfunction of the State's finance and governance system for public education and underscores the failure of leadership in state government to ensure that schools are provided the resources necessary to provide a free and equal education. With an ever-shrinking allocation of funding from the state 'over $1500 per student over the last two years according to some estimates' school districts face unprecedented challenges as they search for a way to offer the educational programming that we as citizens expect our public schools to provide. Although this does not excuse schools' resorting to an illegal means of raising funds, it highlights the reason we all must advocate to ensure our public schools receive from the State the resources necessary to achieve the democratic ideal of helping all children, regardless of their socio-economic status, race, or national origin, to achieve their full potential.
Civil liberties are most vulnerable at times of crisis