Analysis of CalSACC Report on Student Fees
(M 96-17)
BACKGROUND:
On March 21, 1996, the California Student Association of Community Colleges
(CalSACC) submitted to Chancellor Mertes a document entitled "Report on Community
College Fees". This report summarizes information gathered by CalSACC regarding
fees charged by 68 community colleges. Although some incidental issues are
addressed, the report deals primarily with charges for instructional materials, mailing
fees, fees for telephone registration, student center fees, and fees for field trips. Each
of these issues is treated separately below.
To some extent, the CalSACC report raises general legal or policy issues about fee
practices. These matters are addressed first in each section of this analysis. In a few
instances, however, the CalSACC report makes specific allegations which suggest
possible violations of law by particular colleges. In these cases, letters were sent to the
colleges in question and the responses received were considered in reaching the
conclusions related to those particular colleges.
CHARGES FOR INSTRUCTIONAL MATERIAL:
Education Code Section 76365 and Title 5 Section 59400 et seq. set forth the
circumstances under which students may be required to pay for instructional materials.
In essence, the rule is that students can be required to pay for instructional materials
which consist of tangible personal property that has continuing value outside the
classroom, provided it is not available exclusively from the district. Students can only
be required to purchase such materials from the district for health and safety reasons or
if the materials are provided at cost in lieu of other more expensive materials from
outside sources. (Title 5, Section 59400(c).)
Although the CalSACC report discusses charges for instructional materials at some
length, it does not document any widespread violation of these requirements.
Essentially, CalSACC makes three arguments to support its contention that charges for
instructional materials fees at many colleges are excessive. First, the report states that
"With the shear numbers of the listed fees, many of the materials students are required
to purchase may not be in line with the accepted definition." Second, it is pointed out
that "One-third of the colleges, approximately, see no need to charge students for items
that the college should provide." Finally, CalSACC argues that "These fees must be
curtailed so as to facilitate the availability of higher education at an affordable price."
These points may be valid, but none of them provides a basis for challenging the
legality of charges for instructional materials at particular colleges. The fact that some
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colleges charge for instructional materials in many courses does not give any real basis
for questioning the legitimacy of any given charge. Similarly, one may wonder why
College X charges for something College Y provides for free, but this does not
necessarily mean that College X is violating the law. And, of course, the fact that such
charges may contribute to making higher education unaffordable is a policy issue rather
than an allegation of illegal practices.
The report does state that with respect to some colleges "the concern is whether or not
the required instructional and materials fees are in fact implemented to be congruent
with the guidelines outlined by the Chancellor's Office produced Legal Opinion M 95-30
on Community College Student Fees." However, for the most part, the report does not
contain information sufficient to give rise to an inference that a violation may have
occurred. In most instances, the report simply lists the departments in each college
which charge for instructional materials and the amounts they charge. Some of the
charges do seem unusually high. For example, in one case, CalSACC reports that a
college charges up to $265 for a course in law enforcement, but there is nothing illegal
about such a charge provided the student receives tangible personal property worth at
least $265 which is not wholly consumed or rendered valueless and will be of
continuing value to the student outside the classroom. (See Appendix B to Legal
Opinion 95-30, entitled "Community College Student Fees--Status of the Law as of
November 1, 1995" (hereinafter "1995 Fee Memo").) Thus, a statement that a particular
college charges a given amount does not, by itself, suggest a violation, no matter how
high the charge.
In a few instances the report did allege facts sufficient to give rise to an inference that a
violation of these requirements may have occurred, and in such cases the colleges
were asked to respond to these allegations. The following is a summary of the findings
in these cases:
A. CalSACC reported that at Ohlone College students in the Music Department are
required to pay a $5 fee for use of practice rooms. The students pay $5 for a card key
for the term. At the end of the term the student receives a 50% refund, so the card
ultimately costs the student $2.50. Students are required to use the practice room 1
hour each week as part of their class grade.
This practice certainly cannot be justified as a charge for instructional materials. The
student does not receive tangible personal property of continuing value outside the
classroom. Indeed, we have previously held that a college may not require students to
have expensive equipment for use in the classroom and then offer to "rent" the
equipment to the students. (Appendix B to 1995 Fee Memo.) Technically, this is a
practice room and not a classroom, but students are required to practice in the room as
part of their class grade, so this amounts to a distinction without a difference.
It would be permissible for a college to make practice rooms available for students who
are willing to pay an optional service fee. However, we can find no authority to justify
charging a mandatory fee as described above. Ohlone College will be so advised.
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B. CalSACC reported that at Mt. San Antonio College students in drafting classes are
"required to purchase a $3 production card" and students in computer classes are
"required to purchase a $2 laser printer card" and that both of these charges are above
and beyond the instructional materials fees charged in these courses. In response to
our inquiry, Mt. San Antonio College indicated that these are optional charges for use of
printers and copiers. Students are free to purchase these services from the college,
use their own equipment, or go to an off-campus vendor.
As discussed above, a college may not charge students a fee to use expensive
equipment which must be used in the classroom. However, this is somewhat different
because students are not required to use the equipment during class and printing and
copying services are readily available through private sources which students could
use. We believe this arrangement is permissible as an optional service fee as
described in Section III of the 1995 Fee Memo.
C. CalSACC reported that students taking classes in Agriculture-Viticulture at Napa
Valley College are required to pay a fee of $75 "for purchase of wines for tasting etc."
The College confirmed that students participating in specific wine tasting classes are
required to have wines to meet necessary course objectives. Students have the option
of purchasing the wine through the instructor, at a charge of $40 to $75, depending
upon the course, or purchasing it off campus. The students in a class typically taste an
average of 250 bottles of wine during the course, each costing between $2 and $100,
so purchasing wine from the instructor is considerably less expensive. Students are
allowed to take home wine left after the tasting and some students also collect the
empty bottles.
A bottle of wine is certainly tangible personal property and students are not required to
purchase wine from the college, so this practice is permissible provided the wine is not
wholly consumed during class hours. We have previously held that students can be
required to provide food for a cooking class because each student can take the finished
product home and consume it after class. (See Appendix B to the 1995 Fee Memo.) In
this case, it is not entirely clear that every student will receive wine to take with him or
her after the class. For example, if students taste three different types of wine during a
given class session, then there would presumably be no more than three partial bottles
of wine left over so no more than three of the students could receive something of
continuing value outside the classroom. However, the College reports that students
take turns so that, over the course of a semester, most students would probably have
the opportunity to take home some left over wine and/or bottles with some continuing
value.
This is a close call, but we believe this practice probably does satisfy the requirements
of the regulations. If students did not have the option of purchasing the wine from the
instructor, they would have to purchase 250 bottles of different types of wine through
commercial sources. We can probably safely assume that most students would not
consume 250 bottles of wine during class hours, so that would ensure that each student
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receives tangible personal property of continuing value outside the classroom. Thus,
the College could legally compel students to provide their own wine, so it seems
unreasonable to preclude the College from offering students a less expensive
alternative merely because there is no guarantee that each and every student will
receive something of continuing value outside the classroom.
We will, however, recommend that Napa College ask instructors to make every effort to
ensure that left over wine is equitably distributed. In addition, the College should clearly
explain to students the options they have for purchasing wine and the way left over
wine will be distributed.
D. CalSACC reported that at Cuesta College the Counseling Department charges
students a $7 "testing fee." The College confirms that it does offer a course entitled
"Career Exploration" which consists of two assessment instruments. The students
assignments are given based on the information derived from two assessment
instruments. A mandatory $7 fee is charged to cover the actual cost to the College of
purchasing the instruments. The tests could not be obtained at lower price from any
other source. The student retains the tests and results.
Thus, this practice is permissible because the student does receive tangible personal
property of continuing value and the tests are provided at cost in lieu of requiring
purchase at the same or higher cost from outside sources.
E. CalSACC reported that at West Valley College students are required to purchase a
$5 supply card for classes in the Disabled Student Program, Fashion Design
Department, and the Interior Design Department. The College explained that the $5
fee offsets the costs of computer paper, diskettes, clothing patterns, and blueprints in
these courses. Students are allowed to keep the patterns, printouts, or blueprints and
there is no limit on the number of such materials which students can produce.
We are told that these materials must be purchased exclusively from the College
because they are either unavailable from other sources or would only be available at
much higher cost. However, the College assures us that "in the case of each of these
cards, the students receive much more than $5 of materials at the end of the class."
Thus, although these materials must be purchased from the College, it appears that the
requirements of Section 59402(c) have been satisfied.
F. Finally, CalSACC also mentions that Gavilan College charges instructional materials
fees for telecourses. The College was not asked to respond to this because, to our
knowledge, there is no prohibition on charging for instructional materials in telecourses,
provided of course that the charges are otherwise justified.
MAILING FEES:
CalSACC identified 7 colleges charging mailing fees ranging from $.50 to $3 per term.
These include Contra Costa, Diablo Valley, Los Medanos, San Bernardino, Solano,
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West Valley, Las Positas, and Ohlone. This issue had previously come to the attention
of the Chancellor's Office and our independent investigation found another three
colleges who also appear to charge this fee. These include Mission, Chabot, and
Cabrillo.
There is no express authority for requiring students, as a condition of enrollment, to
pay a fee to cover the costs of mailings to students. However, some colleges have
argued that it is permissible to charge students such a fee for mailing grade reports and
other student records because Education Code 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." This argument has some merit,
but there are several important limitations that must be observed in charging fees
pursuant to Section 76223.
First, we note that the aforementioned colleges charge a flat amount of between $.50
and $3 per term. 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. (See
Legal Opinions L 93-09, O 93-12, and O 95-01.)
Second, 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." 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.
Third, some colleges argued that the staff time and postage necessary to mail student
records could be included because Section 76223 refer to the cost of "furnishing
copies." But students who are willing to come in person to the campus to pick up grade
reports and other documents could not be required to pay for such costs and, it follows,
that students would need to be advised that they can choose this lower cost alternative.
Finally, there is nothing in Section 76223 which suggests that a college may require a
student to pay such a fee as a condition of enrollment. In legal Opinion M 95-30 we
made clear that a fee is considered mandatory if it is "required for registration,
enrollment, entry into class, or completion of the required classroom objectives of a
course." Most of the colleges surveyed reported that their mailing fee is mandatory in
this sense, but some indicated that it might be waived and the student would be allowed
to register if he or she objected to paying the fee. But even this later approach is only
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acceptable if the student is clearly informed that the fee is optional and is allowed to
decline to pay it as with the "negative check-off" system described in the 1995 Fee
Memo.
Thus, Section 76223 only authorizes a college to charge a flat rate fee for mailing costs
if:
A. students are not charged for mailing documents other than student records;
B. no student is charged an amount in excess of the actual cost of furnishing the
records he or she receives;
C. students are advised that they will not be barred from registering or enrolling
in any course if they decline to pay the fee; and
D. students are advised 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.
Moreover, even if colleges comply with these requirements, it may still be confusing for
students to have this fee designated as a "mailing fee." We strongly recommend that
fees charged in reliance on Section 76223 be designated "student record fees."
Our investigation indicated that some of the colleges charging a mailing fee may have
deviated from these requirements in some respects. However, even where
inappropriate practices have been identified, we do not believe sanctions should be
imposed. This is the first time the Chancellor's Office has provided detailed guidance
on the application of Education Code Section 76223 and it would not be reasonable to
expect all colleges to be operating consistent with the above guidelines until the Winter
1997 quarter or Spring 1997 semester.
FEES FOR TELEPHONE REGISTRATION::
CalSACC raises concerns about charges for telephone registration. However, it is
permissible to charge for telephone registration so long as it is an optional service fee
and students still have the option of registering in person at no charge. The CalSACC
report does not allege that any college has violated this requirement and, as a result, no
investigation was conducted in this area. However, all colleges are encouraged to
review their fee policies and ensure that charges for telephone registration, if any, are
clearly identified as optional.
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ENTRANCE FEES FOR FIELD TRIPS:
The CalSACC report indicates that four colleges--Diablo Valley, Lake Tahoe, Modesto,
and San Jose City--require students to pay entrance fees at plays, concerts, zoos, and
other facilities or activities visited on instructionally-related field trips.
Provisions on field trips are found in Title 5, Sections 55450-55451. As we explained in
the 1995 Fee Memo, a district cannot charge students a fee for arranging an
instructionally-related field trip. Districts may require students to pay for meals, lodging,
and other incidental expenses associated with participating in field trips. However, the
regulations also provide that no student is to be prevented from making a field trip or
excursion because of a lack of sufficient funds.
The question here is whether entrance fees to a concert, museum, etc. are "incidental
expenses" which a student can be required to pay. We believe entrance fees should
be considered incidental expenses because the rationale for requiring students to pay
for meals and lodging is equally applicable. A student who goes privately to visit a
museum in a distant city will incur certain costs for transportation, meals, lodging, and
incidental expenses, including of course, any fee for admission to the museum. For this
reason, the regulation specifies that students may be required to pay for meals and
lodging and there is no logical basis for treating entrance fees differently. On the other
hand, the student should not be asked to cover the costs associated with arranging the
group trip or paying for district employees who attend to supervise the students
because these are expenses that are beyond those an individual student would
necessarily incur going separately to the same event or activity.
Therefore, we conclude that the practices cited by CalSACC are not, per se,
impermissible. However, we note that the regulation is quite clear that no student may
be prevented from participating in a field trip because he or she lacks sufficient funds.
CalSACC did not allege that students have been excluded from attending field trips at
any college due to lack of funds, but colleges charging entrance fees are cautioned that
they must make arrangements to cover such expenses for students who cannot afford
them. Section 55450(d) specifies that district funds may not be used for this purpose if
the trip is out-of-state, so in such cases, the district would need to work with auxiliary
organizations or community groups to cover these costs.
STUDENT CENTER FEES:
Education Code Section 76375 authorizes districts to establish an annual building and
operating fee, for the purpose of financing, constructing, enlarging, remodeling,
refurbishing, and operating a student body center. The fee cannot exceed $1 per credit
hour, up to a maximum of $10 per student per year.
CalSACC reported that at Gavilan College the "student center fee exceeds the allowed
$10/year." The College confirmed that they do, indeed, charge a student center fee of
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$6 per semester or $12 per year. They acknowledge that this violates the statutory $10
maximum and have agreed to correct the situation for all future fee assessments.
CalSACC reported that Monterey Peninsula College is charging a $10 "building fee"
which is not specifically identified as a student center fee. The College indicates that
this, in fact, a student center fee. Thus, there is legal authority for charging this fee, but
all colleges are strongly encouraged to clearly identify these charges as "student center
fees" in order to avoid confusing students.
OTHER ISSUES:
A few miscellaneous problems were noted at specific colleges. These are discussed
below:
A. CalSACC reported that at Napa Valley College students are charged a $1
"mandatory accident insurance fee." The College indicates that it cannot support a fullblown health center and therefore uses this $1 health service fee to pay for accident
insurance. Students are exempted from this fee if they qualify pursuant to Education
Code Section 76355(c).
Title 5, Section 54708(f) specifically authorizes funds from a health service fee to be
used to purchase student health or hospitalization insurance. Therefore, the fee
charged by Napa Valley is legitimate, but again, it may be advisable to designate this as
a "health service fee" or a "health insurance fee" to avoid confusion.
B. CalSACC reported that Fresno City College charges health service fees to students
in off-campus classes. It appears that there is no prohibition against this practice,
provided of course that students in off-campus classes have the right to use student
health services. CalSACC did not allege that students taking off-campus courses were
denied access to health services, so no investigation was conducted in this case.
C. CalSACC reported that at Orange Coast College "All students are expected to pay
the $10 college services charge when they register." In response to our inquiry, the
College indicated that the fee is optional. Students need only to submit a waiver. After
a portion is deducted to cover collection costs in the Admissions and Records Office,
the remainder of the revenue from the fee is allocated to support various activities of
the Associated Students.
Section IV D makes clear that a student body organization can charge a student activity
fee which is clearly optional. In this case, the College assures us that "The catalog,
schedule, student handbook and registration materials all indicate that this is an
optional charge." Thus, this fee is permissible.
D. CalSACC reported that at Porterville College students are charged a "$7.50 Parking
Security Fee." The College stated that the Parking Security Fee is, in fact, just the
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regular parking fee authorized by Education Code Section 76360. Even if revenue from
this fee is used to pay for security for parking facilities, this would be permissible under
the definition of "parking services" contained in Section 76360(c). Thus, we find that
there is legal authority for this charge, but the College should consider changing the
name of the fee to avoid confusion.
CONCLUSION:
The CalSACC report provides a great deal of information about student fees of various
types at many community colleges. However, in most instances the information did not
give rise to an inference that applicable legal requirements had been violated.
The only systemic problem revealed by this report involved mailing fees. A number of
colleges are charging such a fee on the theory that it is justified by Education Code
Section 76223. That Section could be construed to authorize charging a flat rate fee for
furnishing copies of student records, but several restrictions would apply. Based on the
responses we received, it appears that several colleges may not be charging fees
consistent with Section 76223, but this is the first time we have had occasion to
comment on this question and it seems appropriate to allow districts time to come into
compliance.
The other major substantive issue raised by the report was whether students may be
required to pay entrance fees to plays, concerts, museums and similar facilities or
activities visited on field trips. The law is not explicit on this subject, but we ultimately
conclude that such fees are permissible.
Two other apparent violations were identified--one in the area of instructional materials
and one in the area of student center fees. One of these two colleges has already
agreed to modify its practices and the other will be asked to do so. Most of the other
instances which were investigated resulted in a finding of no violation, although in some
cases we have recommended approaches that may prevent confusion and/or ensure
full compliance with legal requirements.