January 22, 1999
Margaret A. Gratton, President
Orange Coast College
P.O. Box 5005
Costa Mesa, CA 92628-5005
Dear President Gratton:
I am writing with regard to allegations by a student that Orange Coast College
has been charging certain improper fees. On August 14, 1998, General
Counsel, Ralph Black, wrote to you and explained that the student specifically
alleged that the College is charging a fee of $25 per semester for use of a video
camera and editing equipment in a television production class and that a fee of
$2.50 per semester is being charged for a student identification card.
In his letter, Mr. Black also indicated that we are required to investigate such
allegations because Title 5, Section 51012 (which is a minimum condition for
receipt of state aid) prohibits community colleges from charging fees not
expressly authorized by statute. In reviewing this matter, we considered the
responses to the allegations provided in your letter of September 14, 1998, and
the additional information you and your staff provided in subsequent telephone
conversations with Mr. Black. Our conclusions are set forth below.
We first consider the use of the video camera and editing equipment in your
television production class. Your letter confirmed that students are required to
pay an “optional” fee of $25 per semester for use of the camera and editor and
that access to this expensive equipment is essential for completion of the
objectives of the course. This situation is squarely addressed in Appendix A to
our student fee memos. That appendix, which deals with charges for
instructional materials, was originally written in 1985 (just after the current
law on instructional materials was enacted) and was included in the most
recent update on student fees issued December 15, 1998, as well as in similar
updates for the past several years. It specifically states:
Margaret Gratton
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January 22, 1999
The instructional materials regulations do not address rental of equipment that
is required by a district. Rather, the regulations only address the authority of
districts to require the equipment. Generally speaking, rental of equipment
should be classified as an "optional fee," and thus would be authorized within
the parameters of the permissive code. Districts should not subsidize their
equipment budgets by renting equipment which students should not be
expected to own. For instance, it would be improper to require students to
provide a certain $5,000 television camera and then offer them the "option" of
renting one for use during the class for $20 per semester.
Thus, rental of equipment is not directly covered by the regulations on
instructional materials fees, but it is the long-established policy of the
Chancellor’s Office that a college may not circumvent those regulations by
establishing an “optional rental fee” where the equipment is essential to
completion of the course but is so expensive that students cannot reasonably
be expected to own such equipment. It appears that the $25 fee being charged
by Orange Coast College for use of video cameras and editing equipment is
contrary to this policy and should be discontinued.
We now turn to the issue of the $2.50 charge for a student identification card.
We have frequently been asked about the legality of charging a fee for a student
identification card and have indicated that there is no express statutory
authority for such a charge. We have specifically held that such a fee may not
be justified as a charge for instructional materials (see Legal Opinion 97-11)
However, your letter makes the novel argument that such a fee is permissible
under Education Code Section 76223 as a charge for verification of enrollment.
Section 76223 provides that "Any community college may make a reasonable
charge in an amount not to exceed the actual cost of furnishing copies of any
student record; provided, however, that no charge shall be made for furnishing
(1) up to two transcripts of students' records or (2) up to two verifications of
various records of students." Thus, generic materials such as published class
schedules or registration packets that do not relate specifically to an individual
student are not student records and colleges cannot charge for mailing these to
students under Section 76223.
As we understand it, your position is that, since every student automatically
receives two verifications of enrollment free of charge, you are then justified in
charging $2.50 for an identification card that can be used for subsequent
situations where the student needs to establish his or her identity and
enrollment status on or off-campus.
Margaret Gratton
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January 22, 1999
We have never considered the question of whether Section 76223 justifies
charging such a fee, but we have had occasion to rule on a similar claim that
Section 76223 authorizes a flat fee for the cost of mailing grades and other
student records. (see Legal Opinion 96-17 and Section IV. L of the December
15, 1998, update on student fees.) Our decision in that case is instructive
because it clarifies the fairly limited circumstances under which fees are
permitted by Section 76223.
First, we noted that Section 76223 states that charges may not exceed "the
actual cost" of providing the copies of student records. Thus, in order to use a
flat rate, the college would need to be able to ensure that the actual cost of the
copies provided to each and every student equals or exceeds the flat fee. This
requirement would not be satisfied simply by showing, for example, that the
total cost of providing copies of student records to all students equals or
exceeds an average of $1 per student per term.
Second, we observed that districts must carefully analyze the costs involved
when charging a fee pursuant to Section 76223. The statute makes clear that
"No charge may be made to search for or retrieve any student record." Section
76210 defines a student record as "any item of information directly related to
an identifiable student."
Finally, we held that students must be advised that they will not be barred
from registering or enrolling in any course if they decline to pay the fee and
that if they do not wish to be charged for mailing costs they may come to
campus to obtain and pay for copies of student records.
In applying these principles to the fee Orange Coast College charges for an
identification card, we find it necessary to distinguish between the use of such
a card for verifying enrollment and identity on-campus and its possible uses
outside the college setting.
As discussed above, it is not permissible under Section 76223 to charge a
student for the cost of searching for student records. Of course, there are
many situations where it is necessary to verify a person's identity or enrollment
status in order to determine eligibility for participation in college activities or
receipt of benefits or services provided through programs administered by the
college. Such determinations can be made more quickly and easily if the
person carries documentation or a card verifying that he or she is a student.
However, if the person has no such documentation and requests the college to
search its records to verify his or her enrollment, Section 76223 makes clear
Margaret Gratton
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January 22, 1999
that no fee can be charged for such a search. This does not prevent offering the
student the right to purchase a card providing quick and convenient
verification of enrollment, but this must be completely optional.
If the issue is verification of identity (as opposed to verification of student
status) the college can certainly insist that the student have an appropriate
form of identification and can even offer to furnish a card for this purpose at a
reasonable cost. However, this too must be entirely optional as there is no
statutory authorization, either in Section 76223 or elsewhere, for a mandatory
fee for an identification card.
The situation is somewhat different with respect to verification of enrollment for
other purposes. When a student needs to prove that he or she is enrolled at a
college in order to receive a discount from a local business or to qualify for a
benefit from some outside agency, he or she will need a written document from
the college and Section 76223 authorizes charging a fee for providing such
documentation, at least for the third and subsequent requests. However, there
are two significant restrictions on this authority. The fee may not be a
condition of enrollment and it can; only be imposed when the student requests
a third or subsequent verification of enrollment. You have indicated that
payment of the identification card fee is not a condition of enrollment at Orange
Coast College, but it is our understanding that students are routinely charged
this fee whether or not they ever need or request three or more verifications of
enrollment. Apparently, if the student declines to pay, he or she is not barred
from enrollment, but the college does carry the charge on its books and
considers it a debt owed by the student which would justify withholding of
grades or transcripts. This would be permissible, but only if the student
actually requests three or more verifications. Unless and until that occurs,
there is no authority for the fee and on obligation on the part of the student to
pay it.
The other problem with this fee is the flat rate. As discussed above, the
charges authorized under Section 76223 may not exceed the actual cost of
copying records. In this case, the card is furnished in lieu of copies of actual
documents verifying a student’s enrollment status, but the same principle
applies. The flat $2.50 fee would only be authorized if the college can show
that the cost of providing the third and subsequent verifications equals or
exceeds this amount with respect to each and every student. This seems
problematic at best since the number of times a student would need
verification of records would vary. Presumably, some students might never
need more than three verifications of enrollment, so the flat fee should not
exceed the actual cost of making one copy (the first two being free) of a
document which would verify a student’s enrollment status.
Margaret Gratton
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January 22, 1999
Thus, we interpret Education Code Section 76223 to mean that:
1. A community college may not charge a fee for verifying enrollment
status for purposes of determining eligibility for programs and
activities administered by the college.
2. The college may offer students the opportunity to purchase a card
verifying their identity and enrollment status for on-campus purposes,
but it must be made clear to students that purchase of this card is
completely voluntary.
3. A community college may require students to pay for verification of
enrollment for external purposes and this may be accomplished by
charging a fee for a student identification card. However, paying the
fee may not be a condition of enrollment and the fee can only be levied
after the student has requested three or more enrollment verifications.
4. If students are required to pay a flat fee for purposes described in (3),
it cannot exceed the cost of making one copy of an appropriate
document which would verify a student’s enrollment status.
In order to resolve this matter, we ask that you confirm in writing that Orange
Coast College will revise its fee policies to conform with the above
determinations effective for the Fall 1999 semester. I would appreciate
receiving your response by February 15, 1999. If you have any questions, you
may call General Counsel Ralph Black, at (916) 327-5692.
Sincerely,
Thomas Nussbaum
Chancellor
cc: Ralph Black
L 99-02