Issue: Does the Education Code Permit Districts to Offer Classes

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 case-

by-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