October 12, 2010

By Adam Dauksas

On September 30, 2010, in the case of Sherman v. Township High School District 214, the Illinois Appellate Court delivered an opinion clarifying the right of school districts to charge fees to offset the cost of education, holding that a $350 driver’s education course fee did not violate the free education clause of the Illinois Constitution.

District 214 submitted a waiver application to ISBE requesting that the General Assembly waive the “reasonable fee, not to exceed $50” limit on driver’s education fees in the School Code.  District 214 claimed that the revenue to be generated by a $350 fee was necessary to help offset the $993 per-student cost of the driver’s education program. AfterdeterminingthatDistrict214’swaiverapplicationwasincompliancewithallapplicableSchoolCode requirements, ISBE submitted the application to the General Assembly.  In turn, the General Assembly granted District 214’s waiver request.   Sherman’s lawsuit claimed,  among other things,  that a $350 fee for the school’s driver’s education course violated the free education clause of the Illinois Constitution.

Regarding the free education claim, the Court concluded that Sherman did not demonstrate that the legislature ever intended for driver’s education to be absolutely free.  The Court stated, “[w]hen [the legislature] talked about tuition-free, they were speaking of book fees, book rentals and PE equipment,” not driver’s education.  Moreover, the Court rationalized that the School Code explicitly provides that a “school district may charge a reasonable fee” for driver’s education courses, thus further illustrating that such courses were never intended to be free.

The Court, however, limited the scope of its ruling by stating that although “driver’s education is not covered by the free education clause, this does not mean that other electives are also excluded.”  Accordingly, the determining factor as to the constitutionality of charging a school fee appears to be whether the fee involves educational services, which must be provided to students for free, or non-educational services and school supplies, for which reasonable charges may properly be assessed.

Factors to review when deciding whether a fee will withstand legal challenge include whether the course is:

  1. required or an elective;
  2. supervised by teaching personnel or non-certified staff; and/or,
  3. originally subject to a fee as declared in the School Code.  The more a fee appears to be associated with primary instruction, as opposed to a charge for a supplemental service, the more likely the fee will be deemed to have violated the state constitution’s free education clause.  Further, nothing in the Court’s opinion impacts a district’s obligation to grant fee waivers as required by the School Code and ISBE regulations.

If you have questions regarding your fee-based programs, or if you need assistance in developing and implementing a policy pertaining to student fees, please do not hesitate to contact Scariano, Himes and Petrarca.