O 94-25
Issue: Does the Education Code permit districts to offer classes
in noncredit and in community service classes in the same subject
area? If so, may a fee be charged for the community service
classes?
Conclusion: The Education Code permits both noncredit and
community service classes in the same area. The ability to
charge a fee for the community service class may depend on the
facts and circumstances of the offering because the California
Constitution may be implicated.
Issue: Does the analysis or result change if the proposed
community service class is an ESL class?
Conclusion: The analysis and result does not change if the
subject matter of the community service class is ESL.
Discussion: This issue requires a consideration of four
statutes. The first statute defines the parameters of adult
education (noncredit) classes. The second statute defines the
parameters of community service classes. The third statute
establishes the scope of the restriction on charging student
fees. The fourth statute authorizes fees for classes which are
ineligible for state apportionment.
These statutes have evolved over a number of years. To avoid
possible confusion over section number changes or language
inconsistencies as the statutes evolved, the pertinent statutes
will be referred to respectively as the "noncredit" section, the
"community service" section, the "fee restriction" section, and
the "fee authorization" section.
Noncredit Section. The current section describing noncredit
offerings is 78401. Noncredit instruction may be offered in
"civic, vocational, literacy, health, homemaking, technical and
general education." Nothing in the statute suggests that courses
in the listed areas can be offered only in the noncredit mode.
Community Service Section. Community service classes may be in
"civic, vocational, literacy, health, homemaking, technical and
general education, including, but not limited to, classes in the
fields of music, drama, art, handicraft, science, literature,
nature study, nature contacting, aquatic sports and athletics.
These classes shall be designed to provide instruction and to
contribute to the physical, mental, moral, economic, or civic
development of the individuals or groups enrolled therein."
(Section 78300.)
Community service classes were first authorized by the
Legislature in 1965 and after the adoption of the noncredit
section. (Stats. 1965, c. 842.) Note that the basic scope for
noncredit and community service classes is identical: "civic,
vocational, literacy, health, homemaking, technical and general
education." The community service section further requires that
the "classes . . . contribute to the physical, mental, moral,
economic, or civic development of the individuals or groups
enrolled therein."
Based on the foregoing, it is clear that the noncredit section
does not create any sort of monopoly on subject matter of
courses. The same subject matter is appropriate in both
noncredit or community service offerings.
In 1992, the parallel statutory authority for noncredit and
community service classes was judicially recognized. The nature
of a community service class was explored when the authority of a
school district to charge high school students community service
fees for a driver training classes was challenged. (Driving
School Association of California v. San Mateo Union High School
District (1992) 14 Cal.Rptr.2d 908, 11 Cal.App.4th 1513.)
In Driving School, the school district had, for years, offered
driver training classes (i.e., behind-the-wheel classes) as well
as driver education classes. Driver training is considered the
"laboratory phase of driver education." When the state withdrew
funding for driver training, the district offered the class for a
fee as a community service class. "The course was available to
all members of the community above the age of 15 who paid the
required fee but was offered at a time and place suited to the
convenience of high school students. Most sections met after
high school hours between 3:30 and 5:30 p.m. for four days a week
over a three-week period. Two sections met for an intensive
twenty-four hours of instruction during spring vacation. All
classes were held either at Mills High School or San Mateo High
School. The adult school did not offer high school credit for
the class but rather a certificate of completion that would
qualify minors to apply for a driver's license." About 90% of
the students taking the class were high school students.
The Driving School case confirms that general education classes
may be offered as either or both noncredit and community service
classes. "Though the two statutory schemes include different
financing provisions and certain other distinctions, it is
immaterial for many purposes whether a course if offered under
the authority of one or the other or both." (Id., at 913.)
Accordingly, offering classes in the noncredit mode does not
prohibit community service classes in the same subject matter.
The question of whether any class, including ESL classes, may
properly be offered as community service classes requires an
analysis of whether the proposed class "fits" within the
statutory description of a community service class and whether it
is offered in accordance with the standards for community service
classes defined in Section 55002 of Title 5. It seems clear that
an ESL class could fall within a defined community service area
(e.g., general education) and contribute to various of the types
of development described in Section 78300 (e.g., mental
development, economic development, civic development). In
addition, the class must be properly established under 5 CCR
55002 at an individual district. Whether that has been done
would require a factual analysis of the circumstances at that
district.
Fee Restriction Section. Section 76380 ("fee restriction"
section) prohibits the charging of "nonresident tuition or any
fee or charge of any kind" for certain classes. The restriction
applies to "An adult enrolled in a noncredit course...."
Thus,
there are three conditions related to the fee restriction
section: (1) an enrolled adult, (2) taking certain types of
courses, (3) in the noncredit mode.
By contrast, the community service section specifically
authorizes the charging of a fee for community service classes.
Although the fee restriction section describes certain types of
courses, this description is expressly for purposes of
determining which noncredit courses must be offered without a
fee. The fee restriction section includes no indication that it
applies in any way to community services classes.
It is true that at one point, the fee restriction section was
much broader than it is at present because it applied to "adults
enrolled in all classes." However, in 1976, the fee restriction
was amended to cover "an adult enrolled in a class for adults."
(Stats. 1976, c. 323.) As noted above, it currently applies to
"an adult enrolled in a noncredit course" and does not alter the
ability to conduct fee-based community service classes.
Authorization to Charge Fees for Classes Ineligible for
Apportionment. In 1976, a section was added to permit districts
to charge fees for classes which were not eligible for
apportionment. (Stats. 1976, c.323.) Then, as now, the
authority relates to a "class," without a specified limitation on
the type of class offered.
Section 76385 provides: "A student enrolled in a class offered by
a community college district which is not eligible for state
apportionments may be required by the governing board of the
district maintaining the class to pay a fee for such class. The
total revenues derived from the fee shall not exceed the
estimated cost of all such classes maintained."
The placement of this fee authorization section directly
following the fee restriction section suggests that it, like the
fee restriction section, applies only to noncredit courses.
Despite its placement, this fee authorization is not expressly
limited to a "noncredit class" as is the fee restriction section.
Rather, it provides broad authority for a fee for any class which
is not eligible for state apportionment. This section provides
additional support for the ability to collect a fee for classes
offered as community service classes.
There is a caveat, however, to the assessment that Section 76385
bolsters the ability to charge a fee for a community service
class. The fee authorized in the community service class section
is expressly related to community service classes: "a fee not to
exceed the cost of maintaining community service classes."
Conversely, the fee authorized for classes ineligible for state
apportionment "shall not exceed the estimated cost of all of
these classes maintained." To the extent that there may be a
conflict respecting the amount of the fee, the community service
section is more specific and should control.
Constitutional Considerations: Is there a constitutional
prohibition to fee-based community service classes? Although a
statute may authorize a fee, the statute itself or the
implementation of the statute may offend the California
Constitution and be improper on that basis.
In 1991, the office issued an opinion to the Long Beach Community
College District which concluded that the right to a free public
education guaranteed under the California Constitution was
implicated when credit classes were offered as community service
classes and a fee was charged. That opinion relied in part on a
1978 opinion of the California Attorney General which considered
a mandatory community college student body fee. (61 Opinion of
the Attorney General 75.)
The 1978 Attorney General's opinion that the fee "could threaten
the state's system of free public education" is not persuasive
today.
First, the California Constitution actually contains two
sections: the first directs the Legislature to "provide for a
system of common schools by which a free school shall be kept . .
. ." (California Constitution, Article IX, SEC. 5, emphasis
added); and the second states in pertinent part "The Public
School System shall include all kindergarten schools, elementary
schools, secondary schools, technical schools, and State colleges
. . . ." (California Constitution, Article IX, SEC. 6.) Note
that the "free school" designation appears in SEC. 5 and applies
to "common schools;" it does not appear in SEC. 6, which
describes the "public school system." The Attorney General cites
no authority for equating the two descriptions.
The Attorney General did not included community colleges in a
SEC. 5 analysis in an earlier opinion wherein the scope of
"free schools" was considered to end at the 12th grade level:
"Article IX, section 5 of the California Constitution calls for
the Legislature to 'provide for a system of common schools by
which a free school shall be kept up and supported in each
district at least six months in every year. . . .' Pursuant
thereto, the Legislature has adopted a comprehensive scheme which
requires school districts to provide and maintain certain courses
of study in grades 1 through 12 (Education Code, Part 26,
chapters 1 & 2, 51000 et seq., 51200, et seq.) in regular day
schools for 175 days each year." (70 OAG 282 (1970), emphasis
added.)
Second, when the Attorney General Opinion was issued in 1978, the
character of community colleges was not so clearly defined as it
is today. When the community colleges were first authorized, as
junior colleges, they were part of the secondary system. That
characteristic no longer applies. AB 1725 clearly established
the California Community Colleges as part of the "postsecondary
education system." At the time of the AG's opinion, Section 52
did include community colleges as secondary schools. However,
the Section was amended in 1990 to delete community colleges from
the definition. The analysis of the Attorney General, to the
extent it was based on community college districts being
secondary schools, is inapplicable.
The "common school" direction to the Legislature was implemented
by a bill passed April 4, 1870. The law applied to persons
between five and twenty-one years of age. The California Supreme
Court interpreted this law and stated that "The opportunity of
instruction at public schools is afforded the youth of the State,
enacted in obedience to the special command of the Constitution
of the State, directing that the Legislature shall provide for a
system of common schools, by which a school shall be kept up and
supported in each district, at least three months in every year,
etc. (Art. 19, Sec.3.)." (Ward v. Flood (1874) 48 Cal.36, 50.)
In other words, the "system of common schools" was designed for
the "youth" of the state, those between the ages of 5 and 21.
(At the time, the age of adulthood was 21.)
Although the application of the "free schools" provision to
community colleges is uncertain, an analysis of that provision,
if applicable, would still not automatically preclude charging a
fee for a community service class. A fee does not offend the
"free school" requirement unless the fee is charged for an
educational activity subject to the requirement.
Even where a fee is expressly authorized by statute, it may still
be invalid if it violates the "free school guarantee." In 1992,
the California Supreme Court considered the application of the
"free schools" provision to a transportation fee which was
specifically authorized by statute. (Arcadia Unified School
District (1992) 2 Cal.4th 251, 5 Cal.Rptr.2d 545.) The Court
determined that the free school guarantee extended to
"educational activities" which constitute an "integral
fundamental part of the elementary and secondary education" or
are "necessary elements of any school's activity." The Court
noted that school-provided transportation was not an educational
activity and was "not a necessary element which each student must
utilize or be denied the opportunity to receive an education."
The transportation fee was upheld.
Because the instant analysis involves the ability to charge a fee
in a community service class, and such a fee is specifically
authorized by statute, the Arcadia analysis is applicable
(assuming the free school provision applies to community college
districts).
Driving School, referenced above, considered fee-based community
service classes using Arcadia analysis. Like the Arcadia
situation, Driving School involved a challenge to a fee
authorized by statute. Unlike Arcadia, it involved a fee for
instruction as opposed to a fee for a noninstructional activity
(transportation). The Driving School challenge was not based on
the authority to offer driver training classes as community
service classes; the challenge was directed to the fee charged
for the classes.
The Driving School Court first looked at whether an "educational
activity" was involved. It determined that the "educational
character of an activity should be determined in light of the
purpose of the free school guarantee of preparing youth for
citizenship, and the question whether an activity corresponds to
this legislative purpose should be resolved in a manner
consistent with the values and judgments implicit in our system
of law." (At 915.) Note that even though the driver training
class involved instruction, the Court still analyzed its
"educational character." The Court determined that safe driving
is related to good citizenship and therefore related to the
purpose of the free school guarantee. As a consequence, it had
an educational character.
If the purpose of the free school guarantee is to prepare
"youths" for citizenship and applies to community college
districts exactly as stated in Driving School, the analysis for
"educational character" is quite abbreviated: does the activity
prepare youths for citizenship? Because most community college
district enrollees are not "youths," the analysis would end there
because no educational character would be found.
If, on the other hand, an analysis of community college offerings
must be made in light of the purpose of the community college
system, that purpose must be defined. The purpose of community
colleges is different from that of the K-12 system. The missions
of community colleges are stated in Section 66010.4. While the
primary mission for school districts is to prepare youths to be
good citizens, the primary mission for community college
districts is "academic and vocational instruction at the lower
division level. . . ."
Whether a given community service class
is related to this primary mission as opposed to the K-12 mission
would likely govern whether the activity has an "educational
character." Such an assessment would need to be made on a caseby-case basis.
If an "educational character" is found, the next question is
whether the class is "an integral component" of public education.
The Driving School Court determined that driver training was the
laboratory phase of driver education, a course given by the
school for credit toward graduation. However, the Court stated
that the critical consideration of whether it was "an integral
component" was that the driver training courses were offered
"after school hours or during spring vacation, on high school
premises, to classes composed overwhelmingly of high school
students." Based on these considerations, the Court found the
classes, even though offered as community service classes were an
"integral component of the public education offered to high
school students." Therefore, the classes could not be offered
for a fee.
Although the facts of a particular community service class may
affect the analysis, there are striking differences between the
Driving School case and the general proposal to offer ESL classes
as community service classes. First, the ESL class must be
related to the purpose of the free school guarantee. Depending
on its enrollees (minors or adults) and level (13th grade or
below) the free school purpose may be different. Assuming there
is a relationship to the purpose sufficient to find the activity
to be "an educational activity," there must still be an analysis
of whether the class is "an integral component" of public
education.
As to the "integral component" analysis, Driving School
demonstrated numerous factual events which linked the driver
training class to the high school driver education offering. It
is difficult to see how a community service class, offered under
the minimal standards of rigor for such courses, could supplement
credit courses offered only after rigorous development and
approval processes have occurred. Without a significant tie to
the primary purpose of offering credit instruction, the "integral
component" element is missing. If, for example, there were a
credit course which could not be taken without having first taken
a community service ESL class, it is possible that the community
service ESL class could become an "integral component" of public
education. Whether this is even a factual possibility is not
known at this time.
Summary. Based on the foregoing, it is clear that classes in the
same subject matter may be offered as both noncredit and
community services. This would include ESL classes if the ESL
classes fit in the respective definitions and are properly
established at the district level. The fee restriction section
applies to adults in noncredit classes and does not limit the
subject matter of community service classes or the ability to
charge fees for community service classes. The "free schools"
guarantee is arguably not applicable to community college
districts to the extent they are not offering 1-12 instruction to
minors. To the extent that classes offered as community service
classes could be subject to the "free schools" restriction on
fees, fees would still be allowed unless the community service
class is directly and integrally tied to the district's credit
offerings.