AGO 1973 No. 11 - May 10 1973
DISTRICTS ‑- SCHOOLS ‑- TUITION AND FEES ‑- AUTHORITY OF SCHOOL DISTRICTS TO CHARGE VARIOUS FEES
(1) Except as provided for in RCW 28A.58.240 relating to certain adults and nonresident children, school districts are not authorized to charge a general tuition fee for attendance at their publicly maintained elementary or secondary schools (kindergarten through twelfth grade); and, except as provided in RCW 46.81.070 relating to traffic safety education, they may not charge any special fees for attendance at particular courses offered within such publicly maintained K-12 programs.
(2) School districts may not charge for the use of their school buses on field trips or like excursions which are a part of their curricular educational activities; charges are required, however, in connection with any extracurricular uses of these school buses.
(3) Any class of school district may provide free use of textbooks or other materials and supplies to all of its students; a first class school district must do so when directed by the electors under RCW 28A.59.190 (9), and it may do so for the children of indigent parents even when not providing them for all of its students as a matter of discretion under RCW 28A.58.103.
(4) Where a school district does not provide free use of textbooks or other materials and supplies, it may require that these items be purchased by, or for, the students at bookstores or other commercial retail outlets; however, the district cannot require students to purchase such textbooks or other materials and supplies from the district itself.
(5) A school district which loans free textbooks or other materials and supplies to its students may charge a refundable deposit fee to cover possible loss or damage.
(6) Except in the case of a first class school district in response to an order of its voters under RCW 28A.59.190 (9), a school district may either provide its students with necessary magazines or other periodicals for class use free of charge or it may require them to be provided by those students through their resources or those of their parents; a first class district under RCW 28A.59.190 (9) may provide these materials without charge to the [[Orig. Op. Page 2]]children of indigent parents even though it does not do so, generally, for all of its students.
(7) Students desiring to participate in an optional graduation ceremony, or to obtain optional class pictures or acquire an optional yearbook may be required to rent a cap and gown to be worn in such ceremony or to pay for these other items.
(8) School districts are authorized to provide medical or disability insurance coverage for their students at cost to the assenting students or their parents, but they may not require any of their students to participate in any such insurance program.
(9) School districts are authorized to operate lunchrooms and to charge for lunches sold therein.
(10) Discussion of circumstances under which penalties may be imposed for nonpayment of legally authorized fees; and of the recovery of fees illegally charged.
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May 10, 1973
Honorable Lorraine Wojahn
State Representative, 27th District
3592 East Kay Street
Tacoma, Washington 98404
Cite as: AGO 1973 No. 11
Dear Representative Wojahn:
By letter previously acknowledged you have requested an opinion of this office with regard to the authority of public school districts in this state to charge various fees. We paraphrase your questions as follows:
(1) To what extent may a school district charge any of the following described categories of fees?
(a) General tuition charges for attendance at its publicly maintained elementary or secondary schools.
(b) Tuition charges or fees for certain special courses or class programs offered at such schools.
[[Orig. Op. Page 3]]
(c) Fees for the transportation of students on field trips or to interscholastic athletic events or the like.
(d) Fees for the use of district-owned textbooks, manuals and workbooks, classroom equipment, consumable supplies, materials used in home economics or shop classes, lockers or towels used in connection with physical education classes, or other district-owned materials and supplies.
(e) Fees for required magazines or other periodicals used in class where the items in question do not belong to the district.
(f) Fees for optional items not owned by the district such as class pictures, yearbooks, or graduation cap and gown rentals.
(g) Fees for medical insurance coverage of students participating in athletic programs or the like.
(h) Charges for lunches served in school lunchrooms.
(2) If a fee is one that may legally be imposed by a school district, may a student be penalized or may his participation in a school activity be restricted as a result of his nonpayment of that fee?
(3) Will a school district be liable to return any fees unlawfully collected after their illegality has been determined?
We answer these questions in the manner set forth in our analysis.
We begin by noting the definition of "common schools" which appears in RCW 28A.01.060 as follows:
"'Common schools' means schools maintained at public expense in each school district and carrying on a program from kindergarten through the twelfth grade or any part thereof including vocational educational courses otherwise permitted by law."
[[Orig. Op. Page 4]]
Your questions, as we understand them, are limited to the legality of charging the described fees in these publicly maintained schools ‑ as distinguished from such public higher educational institutions as our state colleges and universities, or community colleges. See,Litchman v. Shannon, 90 Wash. 186, 155 Pac. 783 (1916), wherein the Washington court specifically upheld the validity of charging tuition fees for attendance at the University of Washington on the ground that such higher educational institutions are not a part of the "common school" system under the following provisions of Article IX, § 2 of the state Constitution:
"The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. . . ."
In so holding the court said, at p. 190:
". . . While it may be true (though it is not now necessary to so determine) that, as to the common schools, the fourth paragraph of art. 26 may mean that such schools shall be open andfree to all the children of the state, we do not believe that it applies to the university of the state. . . ." (Emphasis the court's.)
Also to be preliminarily noted is the earlier case of School District v. Bryan, 51 Wash. 498, 99 Pac. 28 (1909), in which the court, in holding that moneys in the state's common school fund could not be used to pay for certain courses being taught at a state normal school (i.e., teachers college), stated in dicta, at page 504, that:
". . .a common school, within the meaning of our constitution, is one that is common to all children of proper age and capacity,free, and subject to and under the control of the qualified voters of the school district. . . ." (Emphasis supplied.)
[[Orig. Op. Page 5]]
Because of this language in the Bryan case it has been suggested to us that the imposition of most, if not all, of the fees described in your first question should be labeled asunconstitutional where charged at the common school level ‑ now encompassing kindergarten through the twelfth grade where maintained at public expense in accordance with RCW 28A.01.060, supra. Accord, the recent cases ofPaulson et al., v. Minidoka County School District No. 331, et al., 93 Idaho 469, 463 P.2d 935 (1970); Bond v. Ann Arbor School District, 383 Mich. 693, 178 N.W.2d 484 (1970); andGranger et al., v. Cascade County School District No. 1, Mont. , 499 P.2d 780 (1972). However, while this assertion may well have some degree of validity in any case involving an attempt to impose a general tuition fee for attendance at this level of schools,1/ we are not inclined to base our present opinion upon this constitutional premise for several reasons.
First, we observe that each of these several cases from other jurisdictions involved state constitutional provisions which, unlike our Article IX, § 2, supra, make express reference to free public or common schools. See, Idaho Constitution, Article IX, § 1; Michigan Constitution, Article VIII, § 2; and Montana Constitution, Article XI, § 1. Thus, each of these cases is, to this extent, potentially distinguishable from any which might raise similar issues in our own state.
Secondly, there is the factor that although the Washington court inSchool District v. Bryan, supra, spoke of a "common school" as being "free," we have already noted that in [[Orig. Op. Page 6]] Litchman v. Shannon, supra, decided some seven years later, the court expressly reserved judgment on this point.
And thirdly, we believe it proper in this opinion (as in all others) to be guided by the well-established principle that the utilization of a constitutional basis for deciding a question of law is to be avoided whenever the issue presented can be determined on some other basis instead. See, 16 Am.Jur.2d, Constitutional Law, § 111, and cases cited therein. Insofar as the question presented by your current request are concerned, we need not consider the constitutionality of any of the various charges or fees which you have listed because, without ever reaching this question, we may readily determine the validity of such charges through application of certain fundamental principles respecting the sources of legal authority which pertain to all school districts in this state ‑ as municipal corporations.
As we have said on numerous occasions in the past,2/ whenever any questions are raised regarding the powers of a common school district it must be remembered that such a district, as a municipal corporation, has only those powers expressly granted by the legislature, those necessarily or fairly implied or incident to the powers granted, and those essential to the declared objects and purposes of the district. Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School Dist. No. 24, 178 Wash. 637, 35 P.2d 78 (1934). Moreover, insofar as the specific question of the imposition of fees by public agencies is concerned, this office has long adhered to the rule that:
"Fees are collectible only when and to the extent authorized by law, . . ."3/
Thus, if no statute directly or by necessary implication authorizes a particular fee being charged by a school district to students attending its common schools, such fee may not, legally, be charged.
[[Orig. Op. Page 7]]
(a)General Tuition Charges:
In paraphrasing your first question we have broken down into some seven separate categories the long resume of listed charges or fees which accompanied your letter, in addition to which we have added an eighth covering the related subject of school lunches. The first two of these cover the imposition of some form of tuition ‑ either a general tuition charge or a special tuition fee for certain courses ‑ to be paid for attendance at a publicly maintained elementary or secondary school or at some particular course offered by that school.
In AGO 65-66 No. 113,supra, we addressed ourselves to essentially this same question and concluded that no general tuition fee could be charged by a district for attendance at such elementary or secondary schools except in the case of attendance by adults or by certain children residing in another school district ‑ relying upon a statute now codified as RCW 28A.58.190 which provides as follows:
"Except as otherwise provided by law, common schools shall be open to the admission of all persons between the ages of six and twenty-one years residing in that school district."
In the case of adults, however, as well as children residing in another school district which also carries the grades for which they are eligible to enroll, we made note in this prior opinion of another statute dealing, specifically, with such cases. This statute, now codified as RCW 28A.58.240, provides in material part as follows:
"Any board of directors may make agreements with adults wishing to attend school or with the directors of other districts for the attendance of children in the school district of either as may be best accommodated therein: Provided, That unless such arrangements are approved by the state superintendent of public instruction, a reasonable tuition charge, fixed by the state superintendent of public instruction, shall be paid by such students. [[Orig. Op. Page 8]] All tuition money must be paid over to the county treasurer within thirty days of its collection for the credit of the district in which such students attend."4/
As stated in footnote 1 above, although a reference was also made in this opinion to a "general acceptance" ofSchool District v. Bryan, supra, as indicating a constitutional barrier to any imposition of such general tuition charges on children residing within the district whose common schools they are attending, the opinion itself was predicated on statutory provisions then in effect, and not upon this constitutional premise. Moreover, since the date of its issuance the initial conclusion above stated has, in effect, beenstatutorily confirmed by the legislature through its 1969 amendment to another code section, RCW 28A.58.230. By [[Orig. Op. Page 9]] § 9, chapter 130, Laws of 1969, the legislature amended this section to read as follows:
"Every school district shall admit on a tuition free basis all persons of a school age who reside within this state, and do not reside within another school district carrying the grades for which they are eligible to enroll: . . ." (Emphasis supplied.)
Similarly, in the specific case of kindergartens, RCW 28A.35.010 provides that:
"The board of directors of any school district shall have power to establish and maintainfree kindergartens in connection with the common schools of said district for the instruction of children between the ages of four and six years, residing in said district, and shall establish such courses of training, study and discipline and such rules and regulations governing such kindergartens as said board may deem best." (Emphasis supplied.)
(b)Tuition or Fee Charges for Certain Courses:
We turn, next, to the matter of special tuition charges for admission to certain special class programs offered by a given school district within its common school system. For the most part, irrespective of whether the imposition of any such charges would raise the same specter of possible unconstitutionality as would an [[Orig. Op. Page 10]] attempt to impose a general tuition charge at the common school level, our answer here must be the same as in the case of general tuition charges. With but one exception, no authority has been granted to school districts by the legislature to charge tuition or fees for attendance at particular classes offered by the district as a part of its kindergarten through twelfth grade common school program ‑ irrespective of whether or not the course in question is offered as a part of the basic educational program of the district ‑ and hence, consistent with the foregoing analysis, no such charges may be made.
The single current exception to this conclusion involves courses in driver's training (now statutorily referred to as "traffic safety education") under the following provisions of RCW 46.81.070:
"(1) Each school district offering a course in traffic safety education shall, in such manner as the superintendent of public instruction may direct, keep accurate records of the cost thereof. Subject to RCW 46.81.060 each school district shall be reimbursed from the traffic safety education account: Provided, That the state superintendent shall determine the approximate per pupil cost of traffic safety education and may reimburse up to seventy-five percent of the estimated per pupil cost of traffic safety education. Per pupil cost of traffic safety education shall include the per pupil cost of vehicles used exclusively in traffic safety education programs and simulators used in such programs amortized by school districts over a sixty-month period.
"A simulator is any automobile driver training device approved by the superintendent of public instruction to be used for purposes of traffic safety education instruction under simulated [[Orig. Op. Page 11]] driving conditions.
"(2) The directors of any school district or combination of school districtsshall establish a traffic safety education fee, which fee when imposed shall be required to be paid by any duly enrolled student in such school district prior to the enrollment in a traffic safety education course. Traffic safety education fees collected by a school district shall be deposited with the county treasurer to the credit of such school district, to be used to pay costs of the traffic safety education course." (Emphasis supplied.)
This fee, notably, is not only authorized but is required. It must be paid by all students enrolled in a driver's training course in the public schools. But other than this fee and the nonresident or adult tuition fee provided for by RCW 28A.58.240,supra, no charges may currently be imposed for admission to the kindergarten through twelfth grade courses of any publicly maintained elementary or secondary school in this state ‑ not necessarily because any and all such charges would be unconstitutional but simply because of a present lack of the requisite statutory authority.5/
[[Orig. Op. Page 12]]
Although no fees may be charged for attendance at publicly maintained elementary or secondary schools in this state except as above indicated, a school district under some circumstances is required by law to charge for the use of its school buses in transporting students to school sponsored activities. The applicable statute is RCW 28A.24.055 which, after providing for the basic use of school buses to transport children to and from school without charge, states that:
"When commercial charter bus service is not reasonably available to a school district, the state board of education may authorize the use of school buses and drivers hired by the district for the transportation of school children and the school employees necessary for their supervision to and from any school activities within or without the school district during or after school hours and whether or not a required school activity, so long as the school board has officially designated it as a school activity. For any extra-curricular uses, the school board shall charge an amount sufficient to reimburse the district for its cost." (Emphasis supplied.)6/
Nothing in this statute authorizes a school district to charge for bus transportation in connection with those field trips or like excursions which are undertaken as a part of the district's curricular educational activities; however, if the trip involves an extra-curricular activity such as going to an out-of-town high school football game, etc., the statute not only permits but requires a charge to be imposed ". . . sufficient to reimburse the district [[Orig. Op. Page 13]] for its cost."
(d)Fees for Textbooks or Supplies:
The next category of fees to be considered is that of charges imposed for the use of textbooks or other materials or supplies owned by the school district and either loaned or sold to the student.
This subject was also considered by this office in AGO 65-66 No. 113,supra. As indicated therein (see pages 3-6), the general statutory authority granted to the boards of directors of all classes of school districts with respect to textbooks and supplies is set forth in a statute now codified as RCW 28A.58.103, which provides in pertinent part as follows:
"Every board of directors, unless otherwise specifically provided by law, shall:
"(1) Prepare, negotiate, set forth in writing and adopt, policy relative to the selection of instructional materials. Such policy shall:
". . .
"(f) Provide free text books, supplies and other instructional materials to be loaned to the pupils of the school, when, in its judgment, the best interests of the district will be subserved thereby and prescribe rules and regulations to preserve such books, supplies and other instructional materials from unnecessary damage."
In addition, in the case of first class school districts only,7/ a statute now codified as RCW 28A.59.180 provides in pertinent part as follows:
"Every board of directors of a school district of the first class, in addition to the general powers for directors enumerated in chapter 28A.58 RCW or elsewhere in this title, shall have the power:
[[Orig. Op. Page 14]]
". . .
"(9) To provide free textbooks and supplies for all children attending school, when so ordered by a vote of the electors; or if the free textbooks are not voted by the electors, to provide books for children of indigent parents, on the written statement of the city superintendent that the parents of such children are not able to purchase them."
As we also pointed out in this prior opinion, these two statutes were construed together inHand v. School Dist. No. 1, 118 Wash. 439, 203 Pac. 940 (1922), in which the court held that if the voters of a first class district, by proper election, were to order free school books to be furnished, the effect of such a vote would be the removal of the school board's discretionary power and the substitution of a mandate to the district to furnish free textbooks and supplies to all of its students. We then summarized our opinion on this question by making the following three points:
(a) All classes of school districts have authority to loan textbooks and supplies to students when, in the judgment of the governing board of directors,
". . . the best interests of the district will be subserved thereby, . . ."
(b) In the case of a first class district this permissive authority becomes mandatory pursuant to a vote of the electors under RCW 28A.59.180 (9), supra.
". . . where the district (not having been directed to the contrary by its electors, in the case of a first class district) determines not to 'loan' textbooks and supplies to its students it follows, in our opinion, that the district, . . . may require that the students provide the same for their own use through purchase from such bookstores or other commercial retail outlets as carry the books and materials in question. . . ."
[[Orig. Op. Page 15]]
Of this last explained alternative to the provision of free textbooks and supplies by the school district, we then stated, significantly, that:
". . . This requirement does not legally change the 'free' characteristic of our public schools. . . ."
in support of which we quoted with approval from Segar v. Board of Education of the School Dist. of the City of Rockford, 317 Ill. 418, 148 N.E. 289 (1925), as follows:
". . . A system of schools, which permits all persons of school age residing in the district to attend classes and receive instruction in the subjects taught, without a tuition charge, provides free schools, and the fact that the parents of pupils financially able to do so are required to provide their children with text-books, writing materials, and other supplies required for the personal use of such pupils does not change the character of the school." (Emphasis supplied.)
We then said, however, that while a district which retains discretionary authority in this area of textbooks and supplies could require its students to obtain these materials through outside purchase, ". . . the district cannot require students to purchase the same from the district" ‑ citing another prior opinion, AGO 51-53 No. 494 [[to J. C. Merkel, Prosecuting Attorney, Kitsap County on March 12, 1953]], a copy of which you will also find enclosed.8/
It is worth noting, we think, that the Illinois case upon which we relied in AGO 65-66 No. 113,supra, also arose in a state which, like those of Idaho, Michigan and Montana, is governed by a Constitution expressly requiring the maintenance of a system offree public schools. See, Article [[Orig. Op. Page 16]] VIII, § 1 of the Illinois Constitution of 1870 (in effect at the time of the Segar case in 1925), together with the corresponding provisions of Article X, § 1 of the present, 1970, Illinois Constitution. In addition, although it is true that the Idaho and Montana courts have more recently held an imposition of fees for the use of textbooks to the unconstitutional inPaulson et al., v. Minidoka County School District No. 331, et al.,supra, and in Bond v. Ann Arbor School District, supra, it is further to be observed that these cases involved the charging of such feesby the district and not merely a requirement (as hypotheticated inSegar) that all parents financially able to do so provide their children with textbooks, etc., from their own resources.
Finally, while also still on the subject of charging for the use of textbooks or other materials or supplies, we expressed another conclusion in AGO 65-66 No. 113,supra, which is pertinent here. Relying on so much of RCW 28A.58.103, supra, as permits a school district in providing for the free use of textbooks and supplies to
"'. . . prescribe rules and regulations to preserve such books and supplies from unnecessary damage . . .'"
we concluded that such a district might lawfully charge a reasonable deposit fee to cover possible damage done to any such books or supplies thus loaned by the district to its students. Accord,Segar v. Board of Education, supra, in which this proposition was specifically upheld and in support of which the court made the statement above quoted as to the legality of requiring parents financially able to do so themselves to provide their children with textbooks, writing materials or other supplies. Such a fee must, however, be refundable at the time the books or supplies are returned ‑ less any amounts retained by the district to cover any such damage actually done to the particular materials.
Again, we have reviewed all of the pertinent statutes and other authorities involved in this portion of our prior, 1966, opinion and have found no significant changes. Accordingly, as with the matter of general tuition charges, we reaffirm this prior opinion as it relates to this subject as well. Except for the imposition of a refundable deposit fee to cover damage or loss of loaned textbooks, materials or supplies, school districts may not charge for [[Orig. Op. Page 17]] the use of such items ‑ a conclusion which we would regard as being equally applicable to lockers or towels used in connection with physical education classes. They may, however, require their students and/or parents of those students to provide such items through their own resources, except in the case of first class districts in any instances where the district has been ordered by its electors to provide the subject items without charge.
With respect to first class districts another point which was not specifically noted in this 1966 opinion should here be commented upon. Under RCW 28A.59.180 (9),supra, such districts, even when not ordered by the voters to provide free textbooks and supplies for all children, and when not doing so as a matter of discretion under RCW 28A.58.103, supra, may do so,
". . . for children of indigent parents, on the written statement of the city superintendent that the parents of such children are not able to purchase them."
(e)Fees for Required Magazines or other Periodicals:
(f)Fees for such Optional Items as Class Pictures, Yearbooks, or Cap and Gown Rentals:
(g)Fees for Medical Insurance Coverage:
These three categories of charges also involve fees of one kind or another which are made for either the purchase or the rental of some form of tangible or intangible personal property; i.e., magazines or other periodicals used in class, class pictures, yearbooks, graduation caps and gowns, and finally, medical insurance coverage of one kind or another. Unlike the items considered above, however ‑ such as textbooks or classroom equipment loaned to the students by the school district ‑ the things here to be considered are not owned by the district but, instead, are either purchased or rented by the students from outside agencies; e.g., a commercial photographer who takes and sells pictures of the various classes in school, or a newspaper publisher who sells a subscription to his paper to the students for their use in a current events class. Thus, although "fees" may also be charged here, and be collected by the school districtas agent for the private vendor involved, these are actually fees charged by that vendor and not by the district.
[[Orig. Op. Page 18]]
First to be dealt with are such things as magazines or newspapers to which a student may be required to subscribe as part, for example, of a current events study undertaken as a part of a social studies course. We think the analysis to be applied here is precisely the same as that which we earlier applied to textbooks and classroom materials. Unless it is a first class school district which has been ordered by its electors to provide these materials without charge to the students under RCW 28A.59.180 (9),supra, a school district may either do so in the exercise of its sound discretion under RCW 28A.58.103 when, in the judgment of the board,
". . . the best interests of the district will be subserved thereby . . ."
or it may require them to be provided by the students through their resources or those of their parents. And, again, a first class district under its special statute may provide these materials without charge to the children of indigent parents even though it does not do so, generally, for all of its students.
As for optional items as class pictures, yearbooks, or graduation cap and gown rentals, we turn to another prior opinion of this office, AGO 61-62 No. 48 [[to Herbert H. Davis, Prosecuting Attorney, Benton County on July 21, 1961]], copy enclosed. Relying onValentine v. Independent School Dist., 191 Iowa 1100, 183 N.W. 434 (1921), we there concluded that although a school district could not withhold the diploma of a student who refused to obtain (rent or purchase) and wear a cap and gown in a high school graduation ceremony, it could deny such student the privilege of participating in that ceremony.
Similarly, although a school district may not require any of its students to purchase either individual or class pictures taken by a private, commercial photographer, it may exclude those students who do not do so from having their pictures in its school yearbook where this book is made up (in pertinent part) of individual or class pictures thus taken. And likewise, although no students may be required to purchase a yearbook, those that want such a book may be required to pay for it through purchase from the publisher.9/
This leaves us, then, with the question of medical or other insurance premiums which, again, are not fees imposed by [[Orig. Op. Page 19]] the school district but, rather, are charges made by a private entrepreneur.
RCW 28A.58.420, as last amended by § 1, chapter 9, Laws of 1973, Ex. Sess., grants the following express authority to all classes of school districts:
"The board of directors of any of the state's school districts may make available liability, life, health, health care, accident, disability and salary protection or insurance or any one of, or a combination of the enumerated types of insurance, or any other type of insurance or protection, for the members of the boards of directors, the students, and employees of the school district, and their dependents. Whenever funds shall be available for these purposes the board of directors of the school district may contribute all or a part of the cost of such protection or insurance for the employees of their respective school districts and their dependents. The premiums on such liability insurance shall be borne by the school district. The premiums due on such protection or insurance shall be borne by the assenting school board member or student. All contracts for insurance or protection written to take advantage of the provisions of this section shall provide that the beneficiaries of such contracts may utilize on an equal participation basis the services of those practitioners licensed pursuant to chapters 18.22, 18.25, 18.53, 18.57 and 18.71 RCW." (Emphasis supplied.)
Under this statute it is clearly permissible for a school district to enter into contracts with insurance companies dealing in any of the types of insurance listed whereby such insurance coverage will be extended to, among others, students enrolled in its schools. In the case of certain insurance coverage for its employees the district may further pay all or a portion of the required premiums itself; on the other hand, where coverage (other than liability insurance) is also made available by the district to its students they (or their parents) are required by the statute to pay these chargesif they have assented to this coverage. There is, however, nothing in this or any other statute which would empower a school district to require any of its students to participate in an insurance program offered thereunder where they have not voluntarily assented to do so.
[[Orig. Op. Page 20]]
(h)Charges for Lunches:
Although not specifically listed in your request, we believe it appropriate here finally to pass upon another item resulting in the imposition of monetary charges in the public schools of this state; namely, the operation of lunchrooms by most school districts. Of course, without some specific statutory authorization one would have to conclude, on the basis of the principles hereinbefore cited with respect to the source of school district powers, that the operation of such facilities is not legally permissible ‑ particularly where, as is common practice throughout the state, charges are imposed for the lunches which are served therein. Fortunately, however, such an obviously "earth shaking" conclusion is not necessary at this time for, on the basis of a long-standing statute now codified as RCW 28A.58.136, the operation of such lunchroom facilities by any class of school district may be sustained. This statute provides (insofar as is here material) as follows:
"The directors of any school district may establish, equip and operate lunchrooms in school buildings for pupils, certificated and noncertificated employees and for school or employee functions: Provided, That the expenditures for food supplies shall not exceed the estimated revenues from the sale of lunches, federal lunch aid, Indian education fund lunch aid, or other anticipated revenue, including donations, to be received for that purpose. Operation for the purposes of this section shall include the employment and discharge for sufficient cause of personnel necessary for preparation of food or supervision of students during lunch periods and fixing their compensation, payable from the district general fund, or entering into agreement for the preparation and service of food by a private agency."
Manifestly, the reference to "revenues from the sale of lunches" which appears in the proviso to this statute constitutes an implicit grant of authority to a school district operating such a lunchroom to charge for the lunches which are sold in this facility.
[[Orig. Op. Page 21]]
Beyond asking for our opinion with respect to the legality of the various categories of fees or charges listed in your request, you have asked two further questions, the first of which we have paraphrased as follows:
If a fee is one that may legally be imposed by a school district, may a student be penalized or may his participation in a school activity be restricted as a result of his nonpayment of that fee?
Without question a student may not be penalized for nonpayment of a fee which his school district had no legal authority to charge. Accord,Paulson et al., v. Minidoka County School District No. 331, et al.,supra. In the case of legally imposed fees, however, the answer to your question will obviously depend upon the nature of the particular fee involved and its purpose.
In AGO 61-62 No. 48,supra, we were asked, among others, the following question:
"'Is it legally permissible to withhold transmission of a student's transcript to another public school in the State of Washington because of failure of the student to settle his obligations for fines, lost books, etc., before withdrawal?'"
We responded to this inquiry in the following manner:
"It is our opinion that if the board of directors of a school district were to adopt a rule or regulation under which it would refuse to transmit a student's credits to a school to which the student has transferred until fees for lost books were paid, the rule would be struck down by the courts as being arbitrary and capricious if the same were ever tested.
"Furthermore, if such rule and regulation were adopted and a student was prevented from enrolling in the proper class in the district to which he transferred, the rule, [[Orig. Op. Page 22]] under certain circumstances would conflict with our compulsory education law (chapter 28.27 RCW) and with the statutory right of every child between the ages of six and twenty-one years to attend the public schools in the district in which he resides."
We believe that his view of the matter is entirely valid insofar as either a denial of such things as a transcript or nonadmission to a class is concerned ‑ except, of course, where payment of the fee is specifically stated to be a condition precedent for attendance at that class as in the case of traffic safety education under RCW 46.81.070, supra. However by the same token, if the penalty imposed is simply a denial of the specific service or item for which the fee is required ‑ e.g., refundable deposit fees for textbooks or locker keys ‑ then, obviously, the item in question may be withheld until the fee is paid.
Finally you have asked:
Will a school district be liable to return any fees unlawfully collected after their illegality has been determined?
By this question we assume you have reference to an adjudication by a court of competent jurisdiction that a particular fee has been charged by a school district without lawful authority. In such a case, barring the availability to the district of a defense such as the equitable doctrine of laches or the running of a statute of limitations, recovery pursuant to a court judgment would logically be available ‑ once the illegality of the fee was there determined.
We would not, however, presume to suggest that such a result will necessarily follow in all instances simply by reason of our issuance of this opinion. While we always strive for a correct legal analysis and result in all of our opinions and hope that they will serve as guidance to the various state or local governmental agencies about which they are written, we are ever cognizant of the fact that an attorney general's opinion is advisory only and does not have the binding effect of a court decision. Perhaps the [[Orig. Op. Page 23]] most that can be said of the legal force and effect of an opinion such as this (over and above the impact which its substance may have upon a court) is that a public official continuing to act in a manner contrary to an attorney general's opinion may no longer be able to assert hisgood faith as any sort of a defense to liability for the action thus taken. See, e.g.,Bond v. Ann Arbor School District, supra, in which the Michigan court found that the defendant school district had not acted in good faith in continuing to charge certain fees after the attorney general of that state had issued his formal opinion indicating their illegality.
This completes our consideration of all of your questions. We trust this opinion will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/See, AGO 65-66 No. 113 [[to Frank B. Brouillet, State Representative on October 13, 1966]], copy enclosed, in which we cited School District v. Bryan, supra, in saying in a footnote that
". . . it has been generally accepted in this state that no [general] tuition charge may constitutionally be charged to such students. . ."
as reside within the school district whose common schools they are attending. As will be pointed out below, however, we did not there base our conclusion with respect to the legality of such tuition charges on this constitutional premise but rather upon a lack of statutory authority.
2/See, e.g., AGO 59-60 No. 105 [[to Pat Nicholson, State Representative on March 10, 1960]]; AGO 59-60 No. 113 [[to Damon R. Canfield, State Representative on April 19, 1960]]; AGO 59-60 No. 129 [[to John Panesko, Prosecuting Attorney, Lewis County on July 1, 1960]]; AGO 63-64 No. 130 [[to Louis Bruno, State Superintendent of Public Instruction on December 12, 1964]]; and AGO 65-66 No. 113 [[to Frank B. Brouillet, State Representative on October 13, 1966]], supra.
3/Accord, AGO 63-64 No. 19 [[to Lincoln E. Shropshire, Prosecuting Attorney, Yakima County on April 22, 1963]], quoting with approval from 67 C.J.S., Officers, § 90, p. 328.
4/Accord, AGO 61-62 No. 26 [[to Wayne Roethler, Prosecuting Attorney, Cowlitz County on May 2, 1961]], and our recent opinion of October 3, 1972, to the prosecuting attorney of Pierce county [[to Ronald L. Hendry, and Informal Opinion AIR-72575]], both involving the procedures to be followed in any utilization of this statute. See, however, § 11, chapter 130, Laws of 1969, now codified as RCW 28A.58.245, which has modified even this authorization for the imposition of tuition to the extent of providing that:
"Notwithstanding any other provision of law, the state superintendent of public instruction is directed and authorized to develop and adopt rules and regulations to implement such voluntary, tuition free attendance programs among school districts that he deems necessary for the expressed purpose of:
"(1) Providing educational opportunities, including vocational skills programs, not otherwise provided;
"(2) Avoiding unnecessary duplication of specialized or unusually expensive educational programs and facilities; or
"(3) Improving racial balance within and among school districts: Provided, That no voluntary, tuition free attendance program among school districts developed by the superintendent of public instruction shall be instituted unless such program receives the approval of the boards of directors of the districts."
5/We take cognizance, in stating this conclusion, of the recently enacted provisions of chapter 138, Laws of 1973, under which
". . . any school district is authorized to provide community education programs in the form of instructional, recreational and/or service programs on a noncredit andnontuition basis, excluding fees for supplies, materials, or instructor costs, for the purpose of stimulating the full educational potential and meeting the needs of the district's residents of all ages, and making the fullest use of the district's school facilities: . . ." (Emphasis supplied.)
This statute, while barring tuition charges, perse, does allow charges for supplies, materials orinstructor costs as a part of the programs thereby authorized, but from our reading of it the statute does not appear to be keyed to the formal K-12 common school operations of the district.
6/In addition, although again not directly related to your questions, this statute has recently been amended by chapter 45, Laws of 1973, to allow a district to contract out its buses also for use in transporting elderly persons, provided that the terms of any such contract call for full reimbursement to the district for all costs related to such transportation.
7/See, RCW 28A.57.140 with respect to the classification of school districts in this state.
8/See, however, RCW 28A.58.103 (2), which inferentially authorizes a school district providing the free use of textbooks, to sell those books, instead, to those students desiring to purchase them ‑ presumably in order to be free to mark them up in the course of study and to retain them after completion of the particular course.
9/Another example of this type of "fee" situation would be that of concert or theater tickets sold through the schools (but not by them) to students desiring (but not required) to attend a special performance for school children.