Legislative changes such as revenue limits, changes in the equalized aid formula and general tightening of school funding have led some school districts to explore the use of "user fees" to supplement their budgets. Proponents argue that such fees can result in lower local taxes and increased services for students. Opponents argue that fees place a burden on poor and middle income families, thereby denying them equal educational opportunities. The Wisconsin Constitution, Art. X, sec. 3, limits the school district's authority to assess these fees except under limited circumstances. Therefore, great care must be taken to ensure that any "user fees" are legally authorized. This information sheet is designed to explain what those limits are and answer the most common questions that arise in this area.
The Wisconsin Constitution, Art X, Sec. 3 states:
"The legislature shall provide by law for the establishment of district schools ... such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years...";
This clause of the constitution was interpreted by the Wisconsin Supreme court in State v. Sinclair, 65 Wis. 2d 179 (1974). In reaching its conclusions, the Supreme Court reviewed what types of services were included in "free education" at the time of the adoption of the Constitution in the mid 1800's. At that time, the school building, equipment and teachers were included but books and supplies were not. Using that as a bench mark, the court concluded that public schools may charge fees for or sell books and items of a similar nature, except in cases of indigency. The court also authorized charges for social and extra-curricular activities because they are not "necessary elements of a high school career."
Among the items the court determined must be provided without charge were microfilm readers, electronic listening devices and similar "apparatus" items. The court also concluded that any course that is credited for graduation, even if it is not required for graduation, must be provided without charge. The school may assess fees for the specific materials necessary to complete the coursework, such as books, but it may not charge for instructional time, such as teacher salaries, apparatus, building costs or maintenance.
Thus, user fees, if permitted by statute, are constitutional as long as they are not intended to defray the cost of instruction, buildings, building maintenance and "apparatus". State statutes list specific fees that are or are not authorized. The following statutes authorize fees:
- Sec. 118.03 (2) permits schools to sell textbooks to students.
- Sec. 118.04(3) permits schools to charge nonresident tuition for summer school classes.
- Sec. 118.155(2) requires the parent or person sponsoring religious instruction to pay the costs of transportation to and from the release time for religious instruction.
- Sec. 118.04(4) permits schools to charge "reasonable fees for social, recreational or extracurricular summer classes and programs which are neither credited toward graduation nor aided under 121.14(1) [summer school aid].
- Sec. 118.05(2) permits fees to be charged for conservation camps.
- Sec. 120.10(15) permits a school district's annual meeting to authorize the school board to furnish textbooks under conditions prescribed by the annual meeting or by the school board.
- Sec. 120.13(10) permits a school board to furnish school meals to pupils and pay for the meals out of school district funds. The school board may charge pupils and staff for the cost of the meals.
- Sec. 120.13(13) permits a school board to charge a reasonable fee for attendance at pre-kindergarten classes but the fee or a portion may be waived for any person unable to make payment.
- Sec. 120.13(14) permits a school board to charge fees for all or part of the cost of a day care program established pursuant to sec. 120.13(14).
- Sec. 120.13(19) permits a school board to charge a fee to cover all or part of the costs associated with community programs and services that are outside the regular curricular and extracurricular programs for pupils.
- Sec. 120.13(27m) does not require schools to pay for the transportation of indigent students who are not required to be transported under 121.54.
- Sec. 121.41 permits a school board to establish and collect reasonable fees for any driver education program or part of a program which is neither required nor credited toward graduation. The fee may be waived for indigent pupils.
- Sec. 121.54(7) permits a school board to charge for transportation to extracurricular events.
- Sec. 121.545 permits a parent or guardian to contract with a school board and pay to the school board a fee sufficient to cover the transportation costs for pupils not required to be transported pursuant to sec. 121.54(1) - (6) and 121.57.
The following statutes prohibit fees:
- Sec. 121.54(8) prohibits a school board from charging pupils or their parents for transportation that the school district is required by law to provide.
- Sec. 120.12(11) makes it a duty of the school board to provide books and school supplies for indigent children residing in the district.
- Sec. 120.12(22) requires school districts to pay for advanced placement exams for any pupil enrolled in the school district who is eligible for free or reduced -priced lunches under 42 U.S.C. 1758.
- Sec. 120.12(17) requires school districts to pay the tuition of students attending the UW system if the course being taken is not available at the school district and the student will receive high school credit for the course.
- Sec. 118.55(5) requires school districts to pay for tuition, fees, books and other necessary materials of courses taken at the UW or the WTCS by the pupil pursuant to sec. 118.55, and the lesser of actual cost or net cost as determined pursuant to sec. 118.55(5)(c)(2), Stats., for courses taken at a private institution of higher education by the pupil pursuant to sec. 118.55.
Based upon the Sinclair case, the above statutes and Opinions of the Attorney General, "User Fees" generally fall into one of the five following categories:
Category I - Fees are not permissible for any student in the school district for the following:
- Tuition/instruction costs
- Teacher salaries or benefits
- Buildings, maintenance
- Teaching apparatus - such as computer hardware and software, microfilm readers, projectors, industrial arts equipment (presses, saws, etc.) home economic equipment (stove, sewing machine, etc.), art equipment (kilns, dark room, etc.)
- Course fees for any course which is either required for graduation or given credit towards graduation, or aided under 121.14.
- Transportation as required by 121.54(8).
Category II - Indigent students must be provided the following:
- Text books
- "School supplies" (pens, pencils, paper)
- Advanced placement tests
Category III - Charges permissible for non-indigent students:
- May sell or rent text books and workbooks
- School supplies, pens, paper
Category IV - Charges permissible for any student, regardless of indigency:
- Social and extracurricular activities, as they are not necessary elements of a high school career.
- Individual use items - towels, gym suits, band instruments
Category V - School District has discretion to charge fees for the following:
- Meals for staff and students
- Pre-kindergarten: fees may be charged or waived for students unable to pay
- Classes which are not required for graduation and for which no credits toward graduation are given
- Transportation to and from extracurricular activities
- Before and after-school daycare
Before school boards implement user fees, the board must consider the ramifications. For example, user fees can be challenged by the person being assessed the fee or by tax payers affected by the fee. As a result of fees being implemented throughout the state, 1993 Senate Bill 458 was introduced. This bill would have authorized school districts to set fees that were consistent with statutory and constitutional guidelines, however, before doing so, the board would have been required to have a written policy explaining the fees and hold a public hearing prior to adopting the policy. While this bill did not come to a vote, it is indicative of a legislative concern. Most school boards have policies on fees and they may hold public hearings on them but they are not now required to do so.
In summary, the authority of the school board to assess user fees is powerful but limited. Care must be taken to use this authority judiciously. Copies of local board policies on school fees should be available on request.
Frequently Asked Questions
- How much can the district charge for allowable fees?
Fees must be supported by the actual cost of the provided service. For example, a general fee of $30 per student to cover miscellaneous school supplies would probably not be legal. However, if it is supported by evidence that each child receives at least $30 worth of school supplies that would otherwise be provided by the parent, the fee is allowable. A school district may face challenges if it offers a discounted price or volume discount for families with more than one child in the district. If the district wants to provide such a discount, it should be based upon indigency or need rather than cost.
- Can a school district get a waiver of limitation of school board authority in order to authorize user fees that are prohibited by statute?
Waivers are limited to legally permissible fees and the waiver can be granted only after a public hearing within the district. Furthermore, the Department of Public Instruction cannot issue waivers in instances where the waiver would violate the Wisconsin Constitution. Because the prohibitions listed in the statutes are based upon the Wisconsin Constitution's grant of an education that is free and without charge for tuition to all children, it is rare that a waiver could be granted. For example, fees for teacher salaries are unconstitutional and a request for a waiver for that purpose would be denied. When a fee is constitutionally permissible, such as a textbook fee for non-indigent students, the fee must be limited to the actual cost of the textbook. If the school district requested a waiver to charge more than the actual cost, it would be denied.
- Can a school district charge students for driver's education?
If the student is given credit toward graduation, if the class is required for graduation, or if the class is aided under s. 121.14 (summer school), the district may not charge for instruction or for the use of any apparatus necessary to the instruction, such as vehicle cost or simulator cost. It may charge non-indigent students for the book and/or workbook required or any other personal/individual use item that is associated with the class.
- Can a school district charge students for summer school?
There shall be no cost to the resident student or parent beyond incidental supplies, textbook or similar items (workbooks) if the district claims state aid under s. 121.14 [State Aid for Summer Classes]. Additionally, if the student is a resident of the district and the class is necessary for a grade promotion, high school graduation, or is given credit toward graduation, the district may not charge for the instruction, building costs or apparatus. If the class is not required, credited or aided, the fees must be based upon the actual cost of the class. Fees may not be used to subsidize other classes or students. Items for which fees are charged must be legally permitted and actually purchased for summer school use.
- Can a school district withhold records or grades if a fee has not been paid?
No. The federal Family Education Rights and Privacy Act (FERPA), 20 U.S.C. 1232g and its implementing regulations 34 CFR 99), and state law, sec. 118.125(2)(a) and (b), mandate that pupils and their parents have access to and be given copies of their pupil records. In cases of transfer to another school, sec. 118.125(4), Stats., requires public schools to transfer records within 5 days of such a written request from the parent, adult student or the new school. There is no specific provision in either federal or state law that allows the public school district to withhold records, including a diploma, for failure to pay a fee or fine. While two new general provisions expanding school board powers were added to state law in 1995, and these arguably might support the view that now records could be withheld under state law for failure to pay fees, there was no such change under FERPA. Thus withholding records could still jeopardize any federal funding the district receives and could result in a court challenge to the practice. The approved method for recovery of unpaid fees is small claims court.