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March 22, 2002
PARENTS CHALLENGE L.A. SCHOOLS' FEES
By Amy Tatko
Daily Journal Staff Writer
LOS ANGELES - Esther Michel doesn't mind buying school gym clothes for her two daughters every year. What she does resent is their school's requirement that the clothes have the school logo. That essentially forces Michel and other parents to buy the clothes from the school.
"I'm a single parent, so it makes it a little bit harder when they charge extra and you have to buy them from the school," said Michel, whose girls are in seventh and eighth grades at Mount Gleason Middle School. For the past few years, Michel has shelled out $114 each year to outfit both girls for physical education class as the school requires.
"It does anger me a bit that you can't buy them anywhere else," she said. "At Kmart, you could find really good prices on gym shorts."
The situation so angered parent Carlos L'Dera that he has filed a claim on behalf of himself, his child and other parents and students who say the Los Angeles Unified School District charges them illegal fees for such items as PE clothes, sports team and band uniforms, supplies, and student identification.
The plaintiffs are demanding that the district stop illegal fees immediately and establish a reserve fund of at least $2 million to repay students from whom schools collected the supposedly unlawful fees, according to the claim.
Cynthia Beckwith, assistant general counsel at the school district, would not comment on the specific allegations and said the district is reviewing the claim.
"We're going to look very carefully," Beckwith said. "At this point in time, I don't believe that the allegations in the review are well-founded."
Beckwith insisted that neither the district nor any school requires students to purchase specific clothing or pay any fees.
"We believe that, based on the review [of the claim] that we have done so far, the school district's policy and practice is in accord with all of the law on this issue, including the Hartzell case," Beckwith said.
L'Dera's claim aims to recover damages from the period between September 1997 and Jan. 31 of this year, when the claim was filed. Although L'Dera and his lawyer contend the school district has been charging the fees since the 1960s, the claim covers only recent years because the statute of limitations is four years, said L'Dera's attorney, Richard Ackerman of the United States Justice Foundation.
The United States Justice Foundation is a nonprofit organization for public interest and legal action that was founded in 1979 by attorneys who wanted to advance conservative views in the courts. Among its high-profile cases was a suit filed in December 2001 on behalf of power consumers against Gov. Gray Davis and other parties regarding the energy crisis and alleging unfair business practices.
The district puts the money it earns into the general fund to use as it wishes, Ackerman said - a practice that he contends is common throughout California.
"In theory, you could go up and down the state and find rampant activity like this," he said. "This is an absolute clear violation of the law, and they know it. They can't say they don't know it. It's just like if you're doing 80 mph on the freeway and you get caught, you can't say you didn't know the speed limit was 65."
A 1984 California Supreme Court ruling in Hartzell v. Connell, 35 Cal.3d 899 (1984), Ackerman said, provides the legal direction to schools on fees.
In Hartzell, the high court ruled, "[T]his court holds that the imposition of fees for educational activities offered by public high school districts violates the free school guarantee. The constitutional defect in such fees can neither be corrected by providing waivers to indigent students, nor justified by pleading financial hardship."
The ruling interprets the relevant section of the California Administrative Code, stating that it "bars school districts from charging fees for educational extracurricular activities."
It also says the legislative counsel has interpreted the code section to include no fees for school athletics, musical instruments used in extracurricular band, special uniforms and club dues, Ackerman said.
"The effect on the poor kids is probably the most disturbing part of it, not to mention that it's illegal," Ackerman said. "That's an incredible burden to place where you've got just incredibly, incredibly poverty-stricken neighborhoods [such as in Los Angeles]. It's sickening to think about it."
A settlement was reached recently in a similar class action, Amy v. Pasadena Unified School District, BC239034 (L.A. Super. Ct., filed Oct. 24, 2000), that also was brought by the Justice Foundation. The case involved gym uniforms, band fees, cheerleading outfits, student identification cards and some school supplies, according to an attorney for the school district, Dana McCune of McCune & Harper in Los Angeles.
"From top to bottom, they can't charge for them," McCune said. "You can't require students to purchase something other than the essentially generic physical education clothing."
McCune could not say how long Pasadena had been charging students for the items and services, but the 2000 lawsuit covered a recent two-year period, he said.
The attorney would not disclose details of the settlement, which was reached in November 2001 and approved by a Los Angeles Superior Court judge on Jan. 29. L'Dera said that he is familiar with the suit and that it had settled for $300,000.
"It's going to be a minuscule number of claims submitted and moneys distributed," McCune said.
Pasadena has been in full compliance with the state law for about a year now and no longer charges any impermissible fees, McCune said.
Although Hartzell seems clear, it is not always obvious whether a school may charge for a particular item or service, he said. For example, in the Pasadena case, the parties involved had to consider every school supply involved, deciding item by item which the schools could not charge students for.
"The lines are not often as clear and distinct as we would like," McCune said. "Hartzell really is our guiding light. Frankly, school districts have to some extent been somewhat tardy in enforcing the rules that seem to be set forth in the Hartzell case."
Ackerman and L'Dera are encouraged by the track record.
"We do see merit in the [Los Angeles Unified School District] case because we won one against Pasadena," said Ackerman, who was one of the lawyers representing the plaintiffs in Amy. Another troubling aspect of the fees is that they tip the scales to discourage less fortunate students from participating in activities that may help them get into college, he said.
"The poor and minorities are affected most by this because they can't afford to participate in these activities," Ackerman said. "How fair is that? As long as you can afford to participate in these activities that can get you into college, great."
L'Dera said he intends to file a lawsuit seeking class status if the district rejects his claim. The school district has six months to respond to the claim, Ackerman said. If the district denies it, then L'Dera and the others have six months to file a lawsuit.