OAG Kameen Attachments

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(72 Op. Att'y

PUBLIC LIBRARIES

Mrsr PRO\'JDE ACCESSTolXFOR)lA

TION

RESOl'RCES VlITHOUT

CHARGE

BUT MAY

IMPOSE

FEES

FOR AXCILLARYCOXYE~IEXCES.

December

9 ,

1987

foe Gordon, Esquire

Committee on Aiiministroiioe, Executive,

On behalf of the Committee, you have requested our opinion on

of fees by public libraries. Specifically, you have

(i) whether State law permits county public libraries to

(ii) if it does, what services are

For the reasons stated below, we conclude that the public libra

of this Stat~ generally must provide access to their informa

resources without charge, regardless of the format in which

1

However, public libraries may

the use of ancillary conveniences like copiers,

and computers for management of personal data.

on the use of library resources. A proposed regulation of

Board of Education

on

library services, now before the

is consistent with this construction of the statute.

I

Introduction

Public libraries have their historical antecedents in the public

In the early 1800's, school district libraries

by statute in New York State. The school dis-

This conclusion confirms prior advice on the matter.

Letter

from Assistant Attor

General Richard E. Israel to Delegate Joan B. Pitkin (February 20, 1987).

,

. \ . ~

~'-t

,

Gen. 262]

263

trict library "did much to establish certain principles which

formed the basis of dur present public system. For one thing, it

provided for taxation for free library service and also for state aid

to libraries, both important milestones in library history. Even

more significant, perhaps, it recognized the library as an educa

tional agency, an extension of the system of public education be

yond the formal instruction offered by the schools." C. Joeckel,

The Government

of

the American Public Library

12

(1935). By

the mid-nineteenth century, public libraries as we know them to

day were essentially developed and defined.

I

In Maryland, the General Assembly has declared expressly

that· "public library resources and services are essential compo

nents of the educational system." ED §23-lOl(a)(l).

2

This legisla

tive finding reflects a long-accepted understanding of the educa

tional role of public libraries: "[These] institutions form an

integral part of a system of free public education and are among

its most efficient and valuable adjuncts," the Court of Appeals

wrote more than a half-century ago. A government has "no more

important duty or higher purpose," the Court of Appeals contin

ued, "than to provide free public libraries for the benefit of its in

habitants." Johnson v. Mayor and City Council

of

Baltimore, 158

Md. 93, 103-04_(rn30).

Under ED §23--301, a county governing body may establish a·

public library system, governed by a board of trustees or equiva

lent agency. The local board of library trustees is responsible for

the daily operation of the county libraries, subject to the over

sight power of the State Board of Education. ED §§23-104 and

2

Public libraries in the State of Maryland have a venerable history. In 1696, the Mar

yland Assembly passed one of the earliest pieces of colonial library legislation, provid

ing

that

Rev. Thomas Bray's Annapolitan Library, consisting of 1,095 volumes, should

be housed in a public office at the State House in Annapolis so that "any person desir

ous to study or read any of these said books may have recourse thereunto and the use

thereof." E. Stone, Am.erican Library Development, 1600-1899, at 211 (1977) C'Li

brary Development"). In 1704, the G1;1neral Assembly passed an "act for securing the

Parochial Libraries of this Province,"'which provided for a province-wide library sys

tem, called "parish libraries," under the general control of the church, with local com

missioners appointed by the Governor.

Library Development

at 212.

In Chapter 377 of the Laws of Maryland i872, the General Assembly enacted a com

prehensive revision of the laws on public education. One section of that law provided

that, "[f]or the

further

encouragement of education, district libraries ought to be es

tablished in each school-house district

... "

out of funds appropriated for school pur-

poses. I


2/34


3/34

266

[72 Op.

Att'y

generally

Annotation, Validity of Exaction of

Fees

rom

Children

Attending Elementary

or

Secondary Public Schools,

41

A.L.R.3d 752 (1972, 1987 Supp.). For example, one court ap

proved a school board's charging of fees for an after-hours pro

gram of supervised activities, because the program was merely

"a supplemental educational experience." Kiddie Korner Day

Schools, Inc.

v.

Charlotte-Mecklenburg Bd.

of

Educ., 285 S.E.2d

110, 114 (N.C. App. 1981) (emphasis in original). See also, e.g.,

Ambroiqqio

v.

Board

of

Educ., 427 N.E.2d 1027 (Ill. App. 1981);

Hamer

v.

Board

of

Educ., 292 N.E.2d 569 (Ill. App. 1973) ; Sneed

v. Greensboro City Board ofEduc., 264 S.E.2d at 112-13.

Other courts reject efforts to parse the educational offerings of

a school into those that are central and those that are merely sup

plemental. Under a broad reading of a "free schools" guarantee,

"all educational activities-curricular or 'extracurricular'

offered to students by school districts" are to be free of charge.

Hartzell

v.

Connell,

679

P.2d

35, 43

(Cal. 1984). See also, e.g.,

Granger

v.

Cascade County School Dist.,

499 P.2d 780, 786

(Mont.

1972)

(fee invalid if "a given course or activity

[ is]

reason

ably related to a recognized academic and educational goal").

However, even decisions that reflect so broad a view of "free

schools" acknowledge that fees may be charged for activities that

are merely recreational or social-that is, activities outside even

an expansive definition of a school's educational mission. See, e.g.,

Paulson v. Minidoka County School Dist. No. 331, 463 P.2d 935,

938 (Ida. 1970). As the California Supreme Court put it: "Educa

tional activities are to be distinguished from activities which are

purely recreational in character. Examples of the latter might in

clude attending weekend dances or athletic events." Hartzell

v.

Connell, · 679 P.2d at 43 n. 14. Moreover, items that are customar

ily furnished by students for their own personal use are also

viewed as outside the scope of a "free schools" requirement. See

Board

of

Educ.

v.

Sinclair, 222 N.W.2d at 148.

B. Maryland Law

Article VIII,

§1

of the Maryland Constitution provides that:

"The General Assembly ... shall by Law establish throughout

the State an efficient System of Free Public Schools; and shall

provide by taxation, or otherwise, for their maintenance." See

also ED §1-201 ("There shall be throughout this State of Mary

land a general system of free public schools ....

").

The constitu-

~ f .

Gen.

262]

267

tional requirement, "means that the schools must be open to all

without expense." Clark

v.

Maryland Institute, 87 Md. at 661.

We are not aware of any reported case that identifies the range

of activities embraced by the term "free"

in'

Article VIII,

§1.

Hence, we cannot say whether Maryland courts would go as far

as courts in some states in categorizing the activities that must

be offered without charge. But, whatever the outer limits of Mar

yland's "free public schools" guarantee, we are safe in saying that

anything directly related to aschools curriculum must be availa

ble to all without charge.

T o

borrow the North Dakota Supreme

Court's formulation, whatever is an "integral

part

of the educa

tional system" must be free.

Cardiff

v.

Bismarck

Public

School

Dist., 263 N.W.2d 105, 113 (N.D. 1978).

Moreover, the "free schools" requirement is not limited to tra

ditional curricular offerings.

4

In 57 Opinions of the Attorney

General 176 (1972), this office concluded that a county was prohib

ited from charging a fee of $25 per student to underwrite the cost

of its driver education program, which was part of the school cur

riculum. "[T]he concept of charging fees to public school students

... [for] courses in the public schools," the Attorney General

wrote, "is contrary to constitutional and statutory principles re

garding free public education." 57 Opinions of the Attorney Gen

eral at 177.5

III

Free Libraries

Public libraries in Maryland "are essential components of the

educational system." ED §23-lOl(a)(l). Accordingly, we believe

that the core principle identified by the Court of Appeals and ap-

~

4

In a different context, the Court of Appeals has recognized

that

modern educational

needs are more diverse than those of the nineteenth century, and the construction of

the provisions of the Constitution dealing with the public schools ought likewise to be

construed flexibly. Clauss v. Board

of

Educ.,

181

Md. 513, 522-23 (1943).

The opinion implied that fees for instruction outside a school's courses would not nec

essarily be forbidden. In its regulations, the State Board of Education authorizes local

boards to charge a fee "for any driver education program or portion of a program of

fered outside of the established school day or school year." COMAR 13A.04.03.05A(l).


4/34

268 0

[72 Op.

Att'y

plied by this office to schools ought to apply to libraries as well: A

fee may not be imposed for a service that is part of the institu

tion's basic mission. As this office's driver education opinion sug

gests, when a school's curriculum expands to meet modern needs,

even a nontraditional course must be offered without charge.

Applying this principle to the myriad of services offered by

modern public libraries is not easy. Certainly, a library may not

charge a patron who wishes to borrow a copy of Othello, any more

than a public school may charge tuition for an English course. But

may a library exact a fee when a patron borrows a film of the play

on videocassette or a recording of the Verdi opera on compact

disc, or searches a computer data base to locate references to

Othello in recent works?

In our view, these differences in form-that is, in the techno

logical embodiments of human knowledge and art-are immate

rial. All are to be "free," because all are an integral part of a pub

l ie library's contemporary role.

Quantum leaps in technology, unimaginable even 100 years

ago, have made it possible to provide access to more timely infor

mation in far less space than printed material can provide. But

new tools and new methods of providing a service

do

not change

the basic task. When a librarian searches indexes and other ·

sources of information to assist a patron, the librarian is carrying

out a fundamental aspect of library service, regardless of

whether the search involves books or computer data bases.

Similarly, the lending of videocassettes, filmstrips, recordings,

and other entertainment media is a library service that must be

provided without charge, even though their format is not the

printed word and their purpose is entertainment. Public libra

ries long ago yielded to the reality that the artifacts of modern

culture do not arrange themselves into nice categories.

6

In our view, the purpose of the "free service'; requirement of

ED §23-305(b)(l) is to assure that patrons are not charged for

ac-

6

Librarians once debated whether fiction should be included in public library collec

tions. Library Journal, Sep.-Oct. 1879, at 367. The debate itself now seems quaint. As

the first Director of the Enoch Pratt Free Library observed, perhaps with equal

parts insight and resignation: "The public library is most connected with the civiliza

tion of the

age-so

closely that the two are becoming almost inseparable." Steiner,

The Future of the Free Public Libi·ary, Library Journal, Dec. 1890, at 45.

·\.~

• • • . t,

,.,~

. . • . • .

•

~

~

Gen. 262]

26

cess to a library's information resources, no matter what form

technology conveys the information.

7

The State Board's propose

regulation applies this concept in detail and therefore properl

implements the statute.

Our conclusion that all informational resources of a public

l

brary must be provided without charge does not mean that ever

library service must be free. Some activities or services that ar

offered in a library, like some activities or services in a schoo

might not be an integral part of its educational mission. For ex

ample, although lending books and other materials is at the cor

of a library's function, providing a patron with a permanent per

sonal copy of material is not; therefore, a library may charge fo

copying service.

In addition, the State Board has the authority to decide tha

various other conveniences may be subject to charge. In its pro

posed regulation, the State Board directs that each county li

brary board describe its "[c]harges for utilities or convenience

available to library users, such as copying machines, coin

operated typewriters or other equipment, and pay computers fo

experienced users." COMAR 13A.05.04.06A(3).

Fees m ay also be imposed as a means of enforcing restrictions

on patron use of otherwise free material. Libraries have histori

cally placed limitations on the numbers of items permitted to b

borrowed as well as

on

the duration of borrowing. Limitations o

this kind are obviously necessary if libraries are to "provide the

widest possible access to library and information resources o

this State" and to "[e]nsure more effective and economical ser

vices to all library users." ED §23-101(b)(2). These restrictions

would become meaningless if libraries lacked the power to en

force them through charges. The "free library service" require

ment in ED §23-305(b){l) has never been understood to prohibit

fees of this kind, and we do not construe it that way

now.

7

The Attorney General of Clrliforniahas characterized the import of that state's "free

library service" requirement similarly: "If the transaction involves the satisfaction

with library resources, of a patron's request for information (whether for education

recreation, or entertainment purposes), such transaction is a 'library service."

61

Op

Att'y

Gen.

512 (Cal. 1978).

See a.ls;Op.

Att'y.

Gen.

26-84 W i : 5 . 1984).

8

The classic charge is a per-day fine for overdue books. Its contemporary analogu

wouldbe a charge for an "excess" computersearch-Le., beyond reasonable, generally

applicable imits of cost or time.

See

proposed COMAR 13A.05.04.06A(2).


5/34

~~~~~~~~~~~~- ; - ~~~~~~~~~~~~~~~ - - -

270

[72 Op.

Att'y

IV

Conclusion ·

In summary, it is our opinion that the public libraries of this

State generally must provide access to their information re

sources without charge, regardless of the format in which the in

formation is presented. However, public libraries may charge fees

for the use of ancillary conveniences like copiers, typewriters,

and computers for management of personal data. They may also

charge fees when a patron exceeds reasonable limitations on the

use of library resources. The proposed regulation of the State

Board of Education on library services is consistent with this con

struction of the statute.

J'. JosEPH CuRRAN, JR,,

Attorney

General

CHlllSTINE STEINER, Assistant Attorney General

JACK SCHWARTZ

Chief Counsel

Opinions and Advice

Editor's Note: Since the issuance of this opinion, the General

Assembly added the following provision to ED §23-305 : "In Balti

more and Prince George's Counties, the board of library trustees

may permit a library to charge fees for the rental of video cas

settes." ED §23-305(b)(2).

See

Chapter 773 (Senate Bill

782).

Laws of Maryland 1988.

Gen. 271] 271

,

PUBLIC OFFICERS :

"OFFICE OF PROFIT" GENERAL ASSEMBLY-POLICE 0FFICER

SIMULTANEOUSSERVICE As MEMBER OF. HOUSE OF DELE

GATESAND OFFICER OF UNIVERSITY OF MARYLANDPOLICE

FORCE PROHIBITED.

January

13,

1987

The Honorable R. Clayton Mitchell, Jr.

Maryland House

Of

Delegates

·

You

have requested our opinion on whether a person who has

been elected to the House of Delegates may continue to serve as

an officer of the University of Maryland Police Force after taking

the oath of office as a Delegate.

For the reasons stated below, we conclude that simultaneous

service as a member of the House of Delegates and an officer of

the University of Maryland Police Force is prohibited by Article

35 of the Maryland Declaration of Rights. Accordingly, upon tak

ing the oath of office as a Delegate, the member will have aban

doned, by operation of

l aw ,

his position as a police officer.

I

Discussion

Article

35

of the Declaration of Rights provides, in pertinent

part, that "no person shall hold, at the same time, more than one

office of profit, created by the Constitution or Laws of this State

. . .

"

When a person who holds one office of profit accepts a sec

ond office of profit, the first office is deemed to have been aban

doned. Hetrich v. County Commissioners, 222 Md. 304, 308

(1960); Truitt v. Collins, 122 Md. 526, 530 (1914);

59

Opinions of

the

Attorney

General

121, 127 (1974);

48 Opinions

of

the Attorney

General 323, 324

(1963).

This office has summarized the criteria for determining an "of

fice of profit" as follows:

"l. The position was created by law and involves con

tinuing and not occasional duties.


6/34

272

(72 Op. Att'y

2.

The holder performs an important public duty.

3.

The position calls for the exercise of some portion of

the sovereign power of the State.

4.

The position has a definite term for which a commis

sion is issued and a bond and an oath are required.

5. The position is one of dignity and importance." 59

Opinions ofthe Attorney General

154, 156 (1974).

See Board

of

Supervisors

of

Elections v. Attorney General,

246

Md. 417, 439

(1967). See also, e.g., 65 Opinions of the Attorney

General

285, 286

(1980).

Of these tests, "the single most impor

tant characteristic of a public officer is that the 'public servant

exercise[s] in his own right some of the sovereign powers of gov

ernment for the benefit of the public."' 68

Opinions of the Attor

ney General

358, 361 (1983) (quoting

Dunca11,

v.

Koustenis,

260

Md.

98,

105

(1970)).

Members of the General Assembly unquestionably hold an "of

fice of profit." 50

Opinions of the Attorney General 57,

63

(1965).

Therefore, the determinative question is whether an officer of the

University of Maryland Police Force also holds an office of

profit.1

Under §13-107(b)(l) of the Education Article, "[a] University

of Maryland police officer is and has all the powers of a peace and

police officer in this State." Applying the pertinent criteria, we

have no doubt that a police officer-including a University of

Maryland police officer-holds an office of profit.

A police officer exercises a portion of the sovereignty of the

State through the authority to enforce the criminal laws. Moreo

ver, an officer takes an oath of office and plainly performs impor

tant public duties that are continuing in nature. As the Court of

Special Appeals observed:

"[A] police officer has been held to be a public official

even though the officer does not generally serve for a

fixed term . . . . The police officer does, however, take

an oath, exercise on a daily, if not minute-to-minute ba

sis, some of the powers of the State and exercises those

1

A

University of Maryland police officer receives a salary. Therefore, the office is "of

profit." S < < 60 Opinion« cf/he Atiorncy General I2t, 124 (1 175).

' " I .

"-

~ ; ; . • .

. · - r

Gen.

271]

27

powers for the benefit of the public." Macy v. Heverin,

44 Md. App. 358, 362

(1979).

See also 22 Opinions of the Attorney General 473

(1937) (const

bles, as "peace officers," hold office of profit); 22

Opinions

of

th

Attorney

G e ne r al 470 (1937) (special policeman, "endowed wi

all the powers of common law constables and City policemen

holds office of profit).

II

Conclusion

In summary, it is our opinion that a police officer-including

University of Maryland police officer-holds an "office of profit

within the meaning of Article

35

of the Declaration of Right

Therefore, simultaneous service as a member of the General A

sembly and a University of Maryland police officer is prohibite

A police officer who takes the oath of office as a member of th

General Assembly thereby abandons the former position.

2

J. JOSEPH CuRRAN, JR., Attorney General

JACK SCHWARTZ

Chief Counsel

Opinions and Advice

. •

2

In light of this conclusion, we need not consider another constitutional restriction

the holding of a second office by a member of the General Assembly.

See

Article I

§

11.

See generally 59 Opini,ms of the Attorney General

121

(1974).


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#/JS

J. JOSEPH CURRAN. JR.

ATTORNEY GENERAL

ROBERT A. ZARNOCH

ASSISTANT

ATTORNEY GENEF=l AL

COUNSEL TO THE GENERALASSEMBLY

RALPH S. TYLER

NORMAN E. PARKER. JR.

DEPUTY ATiOANEYS GENERAL

THE ATTORNEY GENERAL

OF

MARYLAND

RICHARD E. ISRAEL

KATHRYN M. ROWE

SANORA J. COHEN

ASSISTANTATTORNEYS GENERAL

OFFIGEOF

COUNSEL, TO THE GENERAL ASSEMBLY

1

04

LEG ISLATIVE SER VIC ES

8UILD NG

90 STATE C 1R C LE

hNNAPOLIS.

MARYLAND.21401-1991

8 ' . < > . L T I M O R E &

LOCAL CALLING AREA

(410) 841-3889

ED'd'J'Gt·;}'TQ'.',j ) T . 1 :

WASHINGTON METROPOLITANAREA (301) 858-3889 . --··-- "'

- · · · ·

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- - - . . . - · · · . . .

··-y

FoR DEAF-ANNAPOLIS.

(410) 841-3814-0.C.

METRO,

(301)

858-38_1,

fl u r : : : ; t · :

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March

7,

1995

/

r l

c - ~ .

i C u ; - . - ; ~ : ; ~ - r i u i

i;

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. : : : . . ,

i . . : : J

I L i L . : : J I . . : : . )

The Honorable Barbara A. Hoffman, Chairman

Committee on Budget and Taxation

100 Senate Office Building

Annapolis, Maryland 21401-1991

Dear Senator Hoffman:

This is in response to your request for advice of counsel on the constitutionality

of Senate Bill 413, a bill which allows county school boards to charge students

a

fee for

a driver education·course. To the extent this bill authorizes the charging of a fee for a

driver education course offered during the. established school day, it would violate the

free public school requirement of the State Constitution.

Senate Bill 413 amends Section 7-412 of the Education Article, which provides that

each county board of education may offer instruction in the safe operation of a motor

vehicle to high school students who are at least 15 vears old. Each board is to determine

- .

whether the course is an elective or a required course. Senate Bill 413 amends this

section of the law to provide that each county board may require students who are

enrolled in the course to pay a fee to cover the cost. The question has arisen. whether

there

is a

constitutional objection to charging such

a

fee.

Section

1

of Article VIII of the State Constitution requires the General Assembly

to establish and maintain "a thorough and efficient system of Free Public Schools." In

interpreting this provision, the Court of Appeals has said that it "means that schools must

be open to all without expense.

11

State of Maryland ex rel. Clark v. The Maryland


8/34

The Honorable Barbara A. Hoffman

March 7, 1995

Page 2

Institute for the Promotion of the Mechanic Arts, 87 Md. 643, 661 (1898). This office

has said that at the very least "anything directly related to a school's curriculum must be

free." 72 Opinions of the Att~rney General 262, 267 (1987). Reflecting the

constitutional requirement, there is a statutory requirement that "There shall be

throughout this State a general system of free public schools." Md. Code, Education

Article, Sec. 1-201.

Citing both the constitution and statutory requirements for free public schools, this

office concluded that

a

county board's proposal to charge

a

fee to students for a driver

education course was contrary to these principles. 57 Opinions of the Attorney General

176-177 (1972). A copy of this

opinionis

enclosed. However, a subsequent opinion

observed that

it

could be implied from the 1972 Opinions that "fees

for

instruction outside

the school's courses would not necessarily be forbidden" 72 Opinions of the Attorney

General 262, 267 n.

5

(1987). The 1987 Opinion noted that the regulations of the State

Board of Education authorized "local boards to charge a fee for 'any driver education

program or portion of a program offered outside of the established school day or school

year.'

COMAR 13A.04.03.05A-(1)." Ibid. The present regulation forbids charging a

fee for a , driver education course offered during the regular school· day. COMAR

13A.04.03.06. Impliedly charging a fee for driver instruction after the regular school

day is permitted.

As a statute, Senate Bill 413 could, of course, qualify the statutory requirement for

free public schools. However, such

a

statute

is

still subject to the constitutional

requirement for free public schools. In m y judgment, authorizing a school board to

charge a fee for a driver education course which is offered during the established school

day is contrary to this constitutional requirement. However, it has been understood that

such a fee could be charged for driver instruction which is offered after the regular school

day.

Sincerely,

Richard E. Israel

Assistant Attorney General

REI:ss

Hoffman

enclosure


9/34

57

Opi ni ons o f i t l 1 e At t orney Ge~eral 176

17( i

;ATION -- CIJAltGJNc; OF

LABORA.T()Jty Fm;;

rnit

Inuvnn

1·:1,ucATION IN

l'llBLIC SCllOOL.

St>plen1hP1·

1 l, I l'i~.

B.

J V .

Mike Drnto rnn

I/ otrs«

(I_(

/)t'/1'fTl1( 'S.

han~ requested an opnuon of this oflice concerning

of charging a "laboratory fee"

to

help under

lho rns], of lhP

drin•r

cdural.iou

pr111.1-ram

in l'rirH't?

. 1 1 1 1 1 1 t ~ - -

You i11lish l l1r11111.d1011l

tlu-

Stale

a

lhoro11gli and t•lli

8>·::;l1)m of Free Pul

ilie

Schuols and shall

pro,·ih' lo l


10/34


11/34

OFFICE OF THE ATTORNEY GENERAL

Educational Affairs Division

2

St. Paul Place 19th Floor

Baltimore Maryland 21202

410)

576-6465

MEMORANDUM

J ul y

20,

1995

TO:

Margaret Tr ader

FROM: Val Cl out i er ¢cL

SUBJECT:

Dr i ver Educat i on Academ c Cr edi t

Thi s i s t o advi se you t hat I have revi ewed the over vi ew

descr i bi ng l ocal school syst ems opt i ons when i mpl ement i ng t he

r egul at i ons on dr i ver educat i on . f e e s and academ c cr edi t .

I

bel i eve t hat t he t hr ee opt i ons t hat ar e l i st ed ar e consi st ent wi t h

t he i nt ent of t he regul at i ons as wel l as wi t h t he const i t ut i onal

pr ovi si on on f r ee publ i c educat i on.

Pl ease cal l me i f you have any quest i ons or i f

I

may be of

£ur t her assi st ance i n t hi s mat t er .

VVC/ t l w

c : Owen Crabb

t l w\ vvc\ t r ader . mem


12/34


13/34

Maryland State Department of

, . : , ,

.

EDUCATION

Nane» : S .

Grasmick

Stw'1·

Superintenden:

of

Schools

200 Wr;rt.Buitimore

Stree:

RtZ{rimo~,

Maryland 21201

Phom: (410)

767-0J OO.

TTY/TDD

(410)

333-6442

June 20, 1995

Driver Education Academic Credit

This overview describes how the following two portions

of

the current

Maryland State Department of Education driver education bylaw are

put

into

practice:-

Bylaw 13A.04.03.06-Fees: A fee may not be charged

for any part of a public school driver education program

offered during the regular school day.

Bylaw 13A.04.03.07-Academic Credit: Academic

credit may not be awarded i f

a fee

is charged for a

public

school dr iver educa t ion ·program

offered during

the

established

school year .

Local school systems have three options when imp lement ing these bylaw

provisions:

•

'When an approved driver education course is provided as a semester course

offering during the regular school year, academic credit may be awarded

i f

no

student fee is charged. ·

•

When a student fee is charged

for

an app rove d driver

educa t ion

course

offered

during the regular school year , no academic credit may be awarded.

•

When an approved driver education course is offered outside the regular

school

year,

a student fee may be charged and academic credit may be

awarded.

DEFEES.WPD

~'" 'I 'm


14/34


15/34

/


. . , . . . EDUCATION

NanC"J ' S. Grasmick

Sime· Superintendent

nf

Schools

200 WL"~· t Baltimor« Stree:

Rn.frimartt,

Marylalld 21201

Flu:mtt (410) 7 6 7 -0 10 0 -

TJYITDD (410) 333-6442

June 20, 1995



of

the current

Maryland State Department of Education driver education bylaw are put into

practice:·

Bylaw 13A.04.03.06-Fees: A

fee

may not be charged

for

any

par t of a

public school

dr iver

education program



credit

m a y

not be awarded if a fee is charged for a

public school driver education p rogram offered during

the established school year.

Local school systems have three options when implementing these bylaw

provisions:

•

When an approved driver education course is provided as a semester course

offering during the regular school year, academic credit may be awarded

if no

student fee

is

charged.

•

When a student fee is charged for an approved driver education course offered

during the regular school year, no academic credit may be awarded.

•

When an approved driver education course is offered outside the

regular

school year, a student fee may be charged and academic credit may be

awarded.

DEFEES:WPD

t I I,..,. ,.,.,. l\T .: ••


16/34

J. Jos~PH CURRAN, JR.

Attorney General

VALERIE V. CLOUTIER

Principal Counsel

NORMAN E . PARKER, JR.

RALPH s . TYLER

Deputy Attorneys General

TEl..EcoPIERNo.

(410) 576-6880

STATE OF MARYLAND

OFFI C EOFTH EA TTORN EY GEN ERA L

M A R Y L A N D S T A T E D E P A R T M E N T O F E D U C A T I O N

February 22, 1996

The Honorable Thomas Mac Middleton

State Senator

Room 210

Senate Office Building


Re: Fees Charged by Local Boards

of

Education

Dear Senator Middleton:

Dr. Nancy S . Grasmick has asked me to respond to your inquiry regarding the imposition of

fees for certain public school services and activities. You indicate that the Charles County Delegation

is considering a legislative proposal that would allow for certain fees and charges under certain

conditions as set forth by the local board

of

education for activities that take place during the regular

school day and or items used during the regular school

day.

You also indicate that the fees must meet

the rational nexus test

-

there must be a rational connection between the fee charged and the service

provided; the fee must be only for non-academic type activities; the fees shall be specific and

equitable; and the fees' shall be uniform throughout the county. You ask whether there is any

constitutional problem with implementing the fees as proposed. As explained more fully below, your

question raises a substantial constitutional issue that has not yet been addressed by a Maryland court.

Article VIII, Section

1 of

the Constitution ofMaryland establishes the mandate for free public

schools:

The General Assembly, at its First Session after the adoption

of

this

Constitution, shall by Law establish throughout the State a thorough

and efficient System

of

Free Public Schools; and shall provide by

taxation, or otherwise, for their maintenance.

In construing that provision in 1898, the Court of Appeals stated: "This means that the schools must

be open to al l without expense." Clark v . Maryland Institute, 87 Md. 643 (1898). I am not aware,

however, ofany Maryland case that addresses whether charging fees for certain school activities runs

200 Saint Paul Place • Baltimore, Maryland 21202-2021

Telephone Numbers: (410) 576-6465 • D . C . Metro: 470-7534

Telephone for Deaf: (410) 576-6372

•

D.C. Metro 565-0451


17/34


February 22, 1996

Page 2

afoul

of

the constitutional mandate for a system

of

free public schools

.

Courts around the country diverge widely on whether and under what circumstances students

in public schools may be charged fees. In each case, the court analyzes the state's respective

constitutionalprovisionon the establishmentof public schools and then applies an expansive or very

narrow definition of "free" to strike down or uphold the imposition of the fees at issue. 1 For

example, in Hartzell v . Connell, 35 CaL3d 899, 679 P.2d 35 (Cal. 1984), the Supreme Court of

California struck down a fee plan adopted by the Santa Barbara school board finding that the fees

were constitutionallynfirm. Under that plan , students would have been required to pay $25 for each

athletic team

in

which they wished to participate and $25 per category for any and a l l activities

in

each of the following four categories: dramatic productions (plays, dance performances, and

musicals);vocal music groups (choir and madrigalgroups); instrumental groups (orchestra, marching

band, and related groups such a s the drill team and flag twirlers); and cheerleading groups. Although

none of the affected activities yielded any credit toward graduation, each was connected to a credit

course. Al l parties agreed that the activities were "important educational experiences" for the

students.

The court noted that the California Constitution requires the legislature to "provide for a

system of common schoolsby which a free school shall be kept up and supported in each district.

.

"

(Cal. Const., Art. IX, Section 5) . The court then grappled with the question of whether extra

curricular activities

fell

within the free education guaranteed by Section

5

of the: California

Constitution. After determining that the free school guarantee extends to all activities which

constitute

a n

"integral fundamental art

of

the elementaryand secondary education" or which amount

to "necessaryelementsof any school's activities," he California court determined that the imposition

of fees for educational activities offered by public high school districts violated the free school ·

guarantee. I t also determined hat the constitutional defect in such fees "can neither be corrected by

providingwaivers to indigentstudents, nor justified by pleading financial hardship." 679 P.2d at 39-

44.

In

Grarn~er v .

Cascade County School District, 499 P.2d 780 (1972), the Supreme Court of

Montana established he following est to be applied o determine whether a fee might be charged for

a particular course or activity: Is a given course or activity reasonably related to a recognized

academic and educationalgoal of the particular school system? If

it is ,

it constitutes part of the free

public school system commandedby Article XI, Section of the Montana Constitution and additional

1 A

comprehensive listing of cases dealing with the legalityof imposing fees for public

school activities is found in the annotation, "Validity ofExaction of Fees from Children Attending

-r

Elementary or Secondary Public Schools," 41 ALR3d. 752 (1972 & 1995 Supp.).


18/34


February 22, 1996

Page

3

fees or charges cannot be levied, directly or indirectly, against the student or his parents.

2

If

it is

not,

reasonable fees or charges may be imposed. 499 P.2d at 786.

The Supreme Court of North Carolina took a more restrictive approach in interpreting Article

IX Section 2(1) of the North Carolina Constitution that requires "a general and uniform system of

free public schools. . . wherein equal opportunities shall be provided for all students." The court

determined that that provision meant that the State had an obligation of providing its citizens with:

A basic tuition free education. So long as public funds are used to

provide the physical plant and personnel salaries necessary for the

maintenance of a 'general and uniform' system of basic public

education, our public school system

is

'free' -- that is without tuition

-- within the meaning of our State Constitution. That the

administrative boards of certain school districts require those pupils

or their parents who are financially able to do so to furnish supplies

and materials for the personal use

of

such students does not violate

the mandate of Article IX, Section 2(1).

Nor do we perceive any constitutional impediment to the charging of

modest, reasonable fees by individual school boards to support the

purchase of supplementary supplies and materials for use by or on

behalf of students.

Sneed v . Greensboro City Board

ofEdutation,

299 N.C. 609, 264 S.E.2d 106, 112-113 (1980)

( emphasis supplied).

3

In upholding fees charged for participation in interscholastic athletics, the Michigan Court of

Appeals found that interscholastic athletics are not a necessary element of any school's activity nor

are they an integral fundamental part of the education process rising to the level that would require

them to be provided at no cost. The court also found significant the fact that the school board had

a confidential process for waiving fees for economically disadvantaged students. Attorney General

v East Jackson Public Schools, 143 Mich. App. 634, 372 N.W.2d 638, 639-640 (1985).

2

Article

XI, Section

1 of

the Montana Constitution provides: "It shall be the duty

of

the

legislative assembly

of

Montana to establish and maintain a general, uniform and thorough system

of

public, free, common schools."

3

The

Greensboro fee policy had a hardship provision that authorized the principal to

determine whether waiver or the charging of reduced fees was appropriate for a student suffering

from economic hardship. 264 S.E.2d at 113-114.


19/34


February 22, 1996

Page 4

As

I

noted above, no Maryland court has interpreted the mandate for a thorough and efficient

system

of

free public schools as

it

applies to the imposition

of

fees for certain activities provided at

those schools. The Attorney General in a published opinion dealing with the imposition of fees by

public libraries, has stated the following with regard to the "free public schools" guarantee of the

Maryland Constitution:

But, whatever the outer limits

of

Maryland's 'free public schools'

guarantee, we are safe in saying that anything directly related to a

school's curriculum must be available to al l without charge. To

borrow the North Dakota Supreme Court's formulation, whatever is

an 'integral part

of

the educational system' must be free. Cardiff

v .

Bismarck Public Schools Dist., 263 N.W.2d 105,

113

(N.D.

1 97 8 ) .

4

72 Op. Att'y Gen. 262, 267

(

1987).

If

this definition were the litmus test for the constitutional free

school mandate, I believe the State Board regulations establishing program requirements for

elementary, middle, and high schools provide guidance on whether a particular activity is an integral

part

of

the educational system. Those regulations are found primarily in subtitles

3

through

8 of

Title

1 3 A ,

Code

of

Maryland Regulations and cover a broad range

of

activities that fall within the regular

education program for the public schools in the State.

Assuming that the constitutional hurdle is passed, another question that surfaces is whether

a local board of education has authority unilaterally to impose fees for certain activities that take place

during the regular school day. Article

14

of

the Maryland Declaration

of

Rights provides "[t]hat no

aid, charge, tax, burthen, or fees ought to be rated for levied, under any pretense, without the consent

of

the legislature."

I

believe that in order to comply with the constitutional provision, legislation

enacted by the General Assembly would be necessary to authorize local boards to collect fees for

certain activities. See 76 Op. Att'y Gen. (1991) [Op. No. 91-033 (July 25, 1991)] for a

published opinion regarding the ability of the State police to charge fees for the Medivac transfer of

certain patients from one hospital to another.

In summary, it is my view that the imposition of fees for certain activities offered by the public

schools raises a substantial constitutional question that would very likely be challenged in court. At

a minimum General Assembly legislative authorization for the imposition of certain fees is necessary.

It would be prudent to use the state board regulations on the program requirements for the public

schools as guidance in determining whether certain activities are not an integral part

of

the education

system for which fees may be charged. Special provisions for economically disadvantaged students

should also be considered.

4In

Cardiff the Supreme Court ofNorth Dakota found that charging rental fees for use of

textbooks was unconstitutional.


20/34

CJ


February 22, 1996

Page 5

I

hope this information is helpful to you and apologize for the delay in getting it to you.

Sincerely,

Valerie V. Cloutier


Principal Counsel

Maryland State Department of Education

VVC/tlw

c: Nancy S . Grasmick

Robert Zarnoch

Jack Schwartz

tlwwvc'middleto.ltr

ADVICE OF COUNSEL

NOT OFFICIALOPINION OF TiiE ATTORNEY GENERAL


21/34

./


,. , ,.1 EDUCATION

N a . n . C ' ) • S. Orasmic:k

Stare· Super intendent nf Sclwol.s

200 w . . . ~ - Baltimore Street

Rn.ftimo~, Maryland 2120/

Phone (410) 767-0JOO.

ITY/TDD

(410)

333-6442

June 20, 1995



of

the

current

Maryland State Department

of

Education driver education bylaw are put into

practicer

Bylaw 13A.04.03.06-Fees: A fee may not be charged

for any

part of

a

publ ic

school driver education program



credit may no t be awarded if a fee is charged for a

public school driver education program offered during

the established school year.

Local school systems have three options when implementing these bylaw

provisions:

• 'When an approved driver education course is provided as a semester course

offering during the regular school year, academic credit may be awarded if no

student

fee is charged.

•

When

a student fee is charged

for

an approved driver education

course

offered

during the

regular

school year, no academic credit may be awarded.

•

When

an approved driver education course is offered outside the

regular

school year,

a

student

fee may be

charged

and academic credit may be·

awarded.

DEFEES.WPD

'7

s o o ~

: :> 1 < 1 3 . : 1 0 l c l 3 C I

6 1. C Z C C C o n Q,

t o : s t S 6/ ZZ / 9 0


22/34

J. JOSEPH CURRAN, JR.

Attorney General

VALERIE V. CLOUTIER

Principal Counsel

CARMEN

M.

SHEPARD

DONNA HILL STATON


STATE~ OF MARYLAND

OFFICE

OF THE ATTORNEY GENERAL

MARYLAND STATE DEPARTMENT

OF EDUCATION

TELECOPIER

No.

(410) 576-6309

March 24, 2003

Lisa M. Myers

Governing Council Chairperson

Monocacy Valley Montessori School

2421 Monocacy Blvd.

Frederick, MD 21701

Re: Program Fees for Full Day Kindergarten

Dear Ms. Myers:

Dr. Nancy S. Grasmick has asked me to respond to your recent inquiry regarding the

imposition

of

fees for attendance at a full-day kindergarten program at Monocacy Valley

Montessori School ("MVMS"), a Maryland public charter school under the purview

of

the

Frederick County Board

of

Education. You indicate that MVMS is considering imposing a fee

for attendance at a full-day kindergarten due to budgetary restrictions which prevent the school

from offering the full day program without a fee.

Article VIII, Section

1 of

the Constitution

of

Maryland establishes the mandate for free

public schools:

The General Assembly, at its First Session after the adoption

of

this Constitution, shall by Law establish throughout the State a

thorough and efficient System

of

Free Public Schools; and shall

provide by taxation, or otherwise, for their maintenance.

The Court

of

Appeals has construed this provision as requiring schools to "be open to all without

expense." Clark

v .

Maryland Institute, 87 Md. 643 (1898). I am not aware of any Maryland case

that addresses whether charging fees for certain school activities violates the constitutional

mandate for a system

of

free public schools.

200 Saint Paul Place + Baltimore, Maryland 21202-2021

Telephone Numbers: (410) 576-6465

+

D.C. Metro: 470-7534

Telephone for Deaf: (410) 576-637.2


23/34

Lisa M. Myers

March 24, 2003

Page2

However, courts throughout the country have differing views regarding the circumstances

in which public schools may charge students fees. For example, at one end

of

the spectrum is

Hartzell v. Connell, 679 P.2d 35, (Cal. 1984), in which the court issued

a

restrictive decision

against the imposition ofschool fees, noting that California's free school guarantee extends to all

activities which constitute an "integral fundamental part

of

the elementary and secondary

education" or which amount to "necessary elements

of

any school's activities." The California

court determined that curricular and extracurricular activities are educational in nature and

therefore fall within the free school guarantee, thus the school system could impose no fee for

·

student participation in those activities.

At the other extreme is

Sneed v. Greensboro City Board ofEducation,

264 S.E.2d 106

(N.C. 1980), in which the court narrowly interpreted the free school guarantee in the North

Carolina Constitution to mean that schools must offer "a basic tuition-free education" in which

the "public funds are used to provide the physical plant and personnel salaries necessary for the

maintenance

of

a 'general and uniform'. system

of

basic public education." Thus, the North

Carolina court deemed it permissible for local boards to charge modest and reasonable fees to

support the purchase

of

supplementary supplies and material for required and elective courses.

Id. at 112-13 . 1

Given the divergence

of

court opinions across the country, it is hard to pinpoint how a

Maryland court would rule on this issue.

I

believe that one can extrapolate from the cases,

however, what would likely be minimally required.

I

further believe that the Maryland Attorney

General correctly articulated the point in 72 Op. Att'y Gen 262, 267 (1987), stating as follows:

[W]e cannot say whether Maryland courts would go as far as courts

in some states in categorizing the activities that must be offered

without charge. But, whatever the outer limits

of

Maryland's "free

public schools" guarantee, we are safe in saying

that anything

directly related to a school's

curriculum

must be available to

all without charge. To borrow the North Dakota Supreme Court's

formulation, whatever is an "integral part

of

the educational

system" must be free. Cardiffv. Bismark Public School Dist., 263

N.W.2d 105,

113

(N.D. 1978 ) .2 (Emphasis added).

1 For

more discussion

of

these and other cases, see the attached 2/22/96 letter from

Assistant Attorney General Valerie V. Cloutier to the Honorable Thomas Mac Middleton.

2The

fact that fees may not be charged for any part

of

a public school driver education

program that is offered during the regular school day lends support to this notion. See COMAR

13A.04.03.06. See also 57 Op. Att'y Gen. 176 (1972).


24/34

LisaM. Myers

March 24, 2003

Page3

In Maryland, kindergarten attendance is mandatory. Md. Code Ann., Educ.

§

7-301(a)(3).

Attendance in a half-day kindergarten program satisfies this requirement at the present time.

Chapter 463, Laws

of

Maryland, 1991,

§

4. Thus, applying the analysis quoted above, it is clear

that kindergarten is a part of Maryland's system of free public schools as required by Article Vill,

§ 1 of

the Maryland Constitution. I believe therefore that charging for the full-day kindergarten

program offered at Monocacy would not be legally acceptable.

Rather, the fee-generating portion

of

the program would have to be carefully separated

from the regular, State mandated and State funded half-day kindergarten. For the State mandated

portion, no fees can be applied. For the fee-generating portion, the program cannot follow the

established kindergarten curriculum as a continuation

of

the State mandated half-day session.

Instead, it must be totally separate and distinct. One way to do this might be to offer a child care

or enrichment program for the fee-generating portion which is serviced by a private provider who

is unrelated to the required half-day program and who is not paid by State educational

funds .

3

When full-day kindergarten programs are required by State law in the 2007-08 school year,

however, I believe that no fees may be charged for attending full-day kindergarten at a Maryland

public school. See Md. Code Ann., Educ.§ 7-101 (amendment effective July 1, 2003).

I hope this information is responsive to your inquiry.

Sincerely,

ret ~

Jackie C. La Fiandra


Maryland State Department ofEducation

Enclosures

c:

~cy S . Grasmick

y'Valerie V. Cloutier

w c s #5413

ADVICE OF COUNSEL

NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL

3

See the attached

7

/22/92 letter from Assistant Attorney General Cloutier to

Superintendent Paul L. Vance.


25/34


Attorney General

VALER.IEV .

CtotmE

Pr inc ipa l Counsel

NORMAN E. PARKER,

JR.

RALPH

s . TYLER


TEucoPtER.

No.

(410) 576-6880

S T A T E O F

M A R Y L A l " I D

OFFI C EOFTH EA Tf ORN EY GEN ERA L

M A R Y L A N D

S T A T E

DEPARTMENT OF

E D U C A T I O N

February 22, 1996


State Senator

Room 210

Senate Office Building


Re: Fees Charged by Local Boards

of

Education

Dear Senator Middleton:

Dr. Nancy S . Grasmick has asked me to respond to your inquiry regarding the imposition

of

fees for certain public school services and activities. You indicate that the Charles County Delegation

is considering a legislative proposal that would allow for certain fees and charges under certain

conditions a s set forth by the local board

of

education for activities that take place during the regular

school day and or items used during the regular school day. You also indicate that the fees must meet

the rational nexus test - there must be a rational connection between the fee charged and the service

provided; the fee must be only for non-academic type activities; the fees shall be specific and

equitable; and the fees shall be uniform throughout the county. You ask whether there is any

constitutional problem with implementing the fees

a s

proposed. As explained more fully below, your

question raises a substantial constitutional issue that has not yet been addressed by a Maryland court.

Article VIII, Section 1 of the Constitution ofMaryland establishes the mandate for free public

schools:

The General Assembly, at its First Session after the adoption ofthis

Constitution, shall by Law establish throughout the State a thorough

and efficient System

of

Free Public Schools; and shall provide by

taxation, or otherwise, for their maintenance.

In construing that provision

in

1898, the Court of Appeals stated: "This means that the schools must

be open to al l without expense." Clark v . Maryland Institute, 87 Md. 643 (1898). I am not aware,

however, of any Maryland case that addresses whether charging fees for certain school activities runs

200 Saint Paul Place • Baltimore, Maryland 21202-2021

Telephone Numbers: (410) 576-6465 • D . C . Metro: 470-7534

Telephone for Deaf: (410) 576-6372

+

D.C. Metro 565-0451


26/34


February 22. 1996

Page 2

afoul

of

the constitutional mandate for a system

of

free public schools.

Courts around the country diverge widely on whether and under what circumstances students

in

public schools may be charged fees. In each case. the court analyzes the state's respective

constitutional provision on the establishment of public schools and then applies an expansive or very

narrow definition of "free" to strike down or uphold the imposition of the fees at

issue. 1

For

example, in Hartzell

v .

Connell, 35 Cal.3d 899, 679 P 2d 35 (Cal. 1984), the Supreme Court

of

California struck down a fee plan adopted by the Santa Barbara school board finding that the fees

were constitutionally

infirm.

Lnder that

plan.

students would have been required to pay $25 for each

athletic team in which they wished to participate and $25 per category for any and

al l

activities in

each

of

the following four categories: dramatic productions (plays, dance performances, and

musicals); vocal music groups (choir and madrigal groups); instrumental groups (orchestra, marching

band. and related groups such as the

drill

team and flag twirlers); and cheerleading groups. Although

none

of

the affected activities yielded any credit toward graduation, each was connected to a credit

course.

All

parties agreed that the activities were "important educational experiences" for the

students.

The court noted that the California Constitution requires the legislature to "provide for a

system

of

common schools by which a free school shall be kept up and supported in each district .. "

(Cal. Const., Art. IX, Section

5).

The court then grappled with the question of whether extra

curricular activities

fell

within the free education guaranteed by Section

5

of

the· California

Constitution. After determining that the free school guarantee extends to

al l

activities 'which

constitute an "integral fundamental part

of

the elementary and secondary education" or which amount

to "necessary elements of any school's activities," the California court determined that the imposition

of fees for educational activities offered by public high school districts violated the free school

guarantee. I t also determined that the constitutional defect in such fees "can neither be corrected by

providing waivers to indigent students, nor justified by pleading financial hardship." 679 P.2d at 39-

44.

In

Granger v .

Cascade County School District, 499 P.2d 780 (1972), the Supreme Court

of

Montana established the following test to be applied to determine whether a fee might be charged for

a particular course or activity: Is a given course or activity reasonably related to a recognized

academic and educational goal of the particular school system? If it is, it constitutes part of the free

public school system commanded by Article XI, Section

1

of the Montana Constitution and additional

I

A comprehensive listing

of

cases dealing with the legality

of

imposing fees for public

school activities

is

found in the annotation., "Validity

of

Exaction

of

Fees from Children Attending

Elementary or Secondary Public Schools,"

41 A . L R J

d.

7

52

(

1972

&

1995 Supp.).


27/34


February 22, 1996

Page 3

fees or charges cannot be levied, directly or indirectly, against the student or his parents.

2

If

it

is

not,

reasonable fees or charges may be imposed. 499 P.2d at 786.

The Supreme Court ofNorth Carolina took a more restrictive approach in interpreting Article

IX Section 2( 1)

of

the North Carolina Constitution that requires "a general and uniform system·

of

free public schools ... wherein equal opportunities shall be provided for all students." The court

determined that that provision meant that the State had an obligation of providing its citizens with:

A basic tuition free education. So long as public funds are used to

provide the physical plant and personnel salaries necessary for the

maintenance

of

a 'general and uniform' system

of

basic public

education, our public school system

is

'free' -- that

is

without tuition

-- within the meaning

of

our State Constitution. That the

· administrative boards of certain school districts require those pupils

or their parents who are financially able to do so to furnish supplies

and materials for the personal use

of

such students does not violate

the mandate of Article IX, Section 2( l ).

Nor do we perceive any constitutional impediment to the charging of

modest, reasonable fees by individual school boards to support the

purchase of supplementary supplies and materials for use by or on

behalf

of

students.

Sneed v Greensboro Citv Board of Education, 299 N.C. 609, 264 S.E2d 106, 112-113 (1980)

(

emphasis supplied).

3

In upholding fees charged for participation in interscholastic athletics, the Michigan Court

of

Appeals found that interscholastic athletics are not a necessary element

of

any school's activity nor

are they an integral fundamental part of the education process rising to the level that would require

them to be provided at no cost. The court also found significant the fact that the school board had

a confidential process for waiving fees for economically disadvantaged students.

Attorney

General

v .

East Jackson Public Schools,

143

J\1ich. App. 634, 372 N.W.2d 638, 639-640 (1985).

2

.A.rticle

XI, Section

1 of

the Montana Constitution provides: "It shall be the duty of the

legislative assembly of Montana to establish and maintain a general, uniform and thorough system

of public, free, common schools."

"The Greensboro fee policy had a hardship provision that authorized the principal to

determine whether waiver or the charging of reduced fees was appropriate for a student suffering

from economic hardship. 264 S.E.2d at 113-114.


28/34


February 22, 1996

Page 4

A s

I

noted above. no Maryland court

has

interpreted the mandate for a thorough and efficient

system

of

free public schools as

it

applies to the imposition

of

fees for certain activities provided at

those schools. The Attorney General in a published opinion dealing with the imposition of fees by

public libraries, has stated the following with regard to the "free public schools" guarantee

of

the

Maryland Constitution:

But. whatever the outer limits of Maryland's 'free public schools'

guarantee, we are safe in saying that anything directly related to a

school's curriculum must be available to a l l without charge. To

borrow the North Dakota Supreme Court's formulation, whatever is

an · integral part

of

the educational system' must be free. Cardiff v .

Bismarck Public Schools Dist, 263 )i'.W.2d 105,

113

(N.D.

1978) .

4

72 Op. Art'y Gen. 262, 267 ( 1987). If this definition were the litmus test for the constitutional free

school mandate, I believe the State Board regulations establishing program requirements for

elementary. middle. and high schools provide guidance on whether a particular activity i s an integral

part of the educational system. Those regulations are found primarily in subtitles 3 through

8

of Title

13:\, Code ofMaryland Regulations and cover a broad range of activities that fall within the regular

education program for the public schools in the State.

Assuming that the constitutional hurdle is passed, another question that surfaces is whether

a local board

of

education has authority unilaterally to impose fees for certain activities that take place

during the regular school day. Article

14

of

the Maryland Declaration

of

Rights provides "[t]hat no

aid,

charge, tax, burthen, or fees ought to be rated for levied, under any pretense, without the consent

of the legislature .' I believe that in order to comply with the constitutional provision, legislation

enacted by the General Assembly would be necessary to authorize local boards to collect fees for

certain activities. ~ 76 Op. Arr'y Gen. (1991) [Op. No. 91-033 (July 25, 1991)] for a

published opinion regarding the ability of the State police to charge fees for the Medivac transfer of

certain patients from one hospital to another.

In summary, it is my view that the imposition of fees for certain activities offered by the public

schools raises a substantial constitutional question that would very likely be challenged in court. At

a

minimum General Assembly legislative authorization for the imposition

of

certain fees is necessary.

It would be prudent to use the state board regulations on the program requirements for the public

schools as guidance in determining whether certain activities are not an integral part of the education

system for which fees may be charged. Special provisions for economically disadvantaged students

should also be considered.

4In

Cardiff the Supreme Court

of

North Dakota found that charging rental fees for use

of

textbooks was unconstitutional.


29/34

{.'.}

· · · · · · ·

.

· .

·

.

. ,. . , · ,· · · · · · · · . :;

. . . . . . · ; ; ; _ _ ;


February 22, 1996

Page 5

I hope this information is helpful to you and apologize for the delay in getting it to you.

Sincerely,

I

/

. , . - 7

•

/ /

I /;: /

//11 /fl' ~ ''

·

I , . t ·)

•

, • L "•

lo"'"(.-


30/34

RALPH S. TYLER

•

•

~


ATTORNEY GENERAL

JOHN K. ANDERSO

CHIEF COUNSEL FOR

EDUCATIONAi. AFFAIRS

.JEPUTY ATTORNEYS GENERAL

OFFICE OF THE ATTORNEY GENERAL

EDUCATIONAL AFFAIRS DIVISION

200 SAINT PAUL PLACE

BALTIMORE, MARYLAND 21202-2019

(410) 576-6450

WRITER'S DIRECT DIAL NO

D.C. Metro 470- 7534

TTY for Deaf Balto. Area 576-6372 D.C. Metro 565-0451

Telecopier No. (410) 576-6437

J ul y 22 , 1992

B~ F X ND M IL

Dr .

Paul L . Vance

Super i nt endent , Mont gomery Count y

Publ i c School s

850 Hunger f ord Dr i ve

Rockvi l l e, Mar yl and 20850

RE:

Tui t i on f or Non- Mandated Hal f - Day Ki nder gart en

Dear

Dr .

Vance:

Thi s

i s a

f ol l ow- up t o my conver sat i on wi t h you and Zvi

Gr ei smann on t he l egal i t y

o f

of f er i ng t he second- hal f · of an al l

day ki nder gart en pr ogr am

i n

27 school s on

a

f ee- pai d bas i s · . As

I

i ndi cat ed t o you bot h, al t hough t he At t orney Gener al has

under t aken

a

pr ogr am of assi st ance t o l ocal gover nment al agenci es

i n t he r esol ut i on of l egal mat t er s i nvol vi ng subst ant i al i ssues

of St at e

l aw,

we have f ound t hat cer t ai n gui del i nes ar e necessary

t o enabl e us t o pr ovi de t hi s assi st ance wi t hi n t he resour ces

o f

t hi s of f i ce. These gui del i nes ar e set out i n Par t

I I F

of t he

at t ached pol i cy document .

As you wi l l not e, we ask t hat an opi ni on r equest f r om

a

l ocal boar d o f educat i on be accompani ed by a wr i t t en anal ysi s of

t he l ocal boar d at t or ney s own r esear ch and pr of essi onal opi ni on

on t he mat t er .

I

am sure you can under st and our desi r e. not t o

dupl i cat e work t hat may have al r eady been done nor t o do

r esear ch, wr i t i ng, and counsel i ng t hat , at l east i n t he f i r st

i nst ance, i s pr oper l y wi t hi n t he j ur i sdi cti on o f anot her . I am

sure t hat you under st and t he need f or t hese gui del i nes and that

you wi l l be abl e t o compl y wi t h t hem

i n

pur sui ng a r equest f or an

of f i ci al opi ni on f r om t he At t or ney Gener al .


31/34

Dr . · Paul L . Van c e

J u l y 22,

1992

P ag e

2

As we

al s o

di s c u s s e d,

I

c o n c u r

i n t h e

a dvi c e gi ve n

by

As s i s t an t A t t o r n e y Ge ne r a l Kat hr yn

M.

Rowe

t o

t he Ho no r a bl e Br i a n

E . F r o s h

i n a

l e t t e r da t e d J a nu ar y

1 4 ,

1 99 2.

I n t hat

l e t t e r ,

Ms .

Ro we d e t e r m n e d

t h a t

no l e gi s l a t i o n

i s

n ec e s s ar y t o a l l o w

a

c o u n t y

t o

c h a r g e

f o r

e xt e n de d k i n de r ga r t e n pr o gr a ms . Howe v e r ,

s h e

a dvi s e d t ha t

s u c h

pr ogr ams mus t

be

c a r e f u l l y s e par a t e d

f r o m

t h e r e gu l ar , S t a t e - f un de d k i n de r ga r t e n pr o gr ams i n o r de r t o

a vo i d

l e g a , l

and

c c n s t Lt.ut.Lona I pr o b l e ms .

I n

r e vi e wi n g t he mat e r i a l

t h a t

y o u s e n t t o

Dr .

Gr as m c k

de s c r i b i n g t he e xt e n de d k i n de r ga r t e n pr o gr a m t ha t wo ul d b e pa i d

f o r

o n

a f e e

bas i s

i n

Mon t gomer y

Co u nt y, I

am c o n c e r n e d a b o u t

on e

a s p e c t as i t r e l a t e s

t o

t h e a dvi c e gi ve n by As s i s t an t At t o r n ey

Ge n e r a l

Rowe

T ha t pe r t a i n s t o t he di s c u s s i o n o n Page 6 o f yo ur

me mo r an du m

t o

me mbe r s

o f t he

Mont gomer y Count y Boar d

o f

Edu c at i o n

wher e

you

i ndi c a t e t hat t h e i n s t r uc t i o na l pr o gr a m f o r t h e

s e c o n d

ha l f

o f

t h e

day

wi l l be

t h e

s ame

as

t h a t

o f

an

a l l - day

k i n de r ga r t e n pr o gr a m

i n

ac c o r dan c e wi t h MCP S po l i c i e s ,

r e gu l at i o ns ,

an d e s t ab l i s he d k i nde r gar t e n c ur r i c u l um

do c u me n t s .

My c o nc e r n s t e ms f r o m t he Mar yl an d c o ns t i t u t i o na l

mandat e o f

a

t ho r o ugh an d e f f i c i e nt s y s t e m o f f r e e . publ i c

s c ho o l s .

To

t h e e x t e n t t h e f e e - ge ne r a t i ng po r t i o n o f y o u r

k i n de r gar t e n pr o gr am f o l l o ws

an

e s t ab l i s he d ki n de r gar t e n

c ur r i c ul um

as

a

c o nt i n uat i o n

o f

t h e ha l f - da y s e s s i o n ma nda t e d

by

l aw, i t wo u l d

s e e m

t h a t t h e Mo n t go me r y Co u n t y S c h o o l S y s t e m has

as

a ma t t e r

o f

po l i c y ma de a l l - da y k i n de r ga r t e n

a

r e gu l a r par t

o f

t he s c ho o l pr o gr am

Chi l dr e n who s e p ar e n t s a r e un ab l e t o pa y

o r

who

c h o o s e n o t

t o

pay

f o r t h e

s e c o nd- ha l f

o f

t he k i n de r g ar t e n

s e s s i o n wi l l be n e gat i ve l y a f f e c t e d

by

t he i r a bs e nc e f r o m

t h e f e e

s e s s i o n whe n t he y r e t u r n

t h e

f o l l o wi n g day

t o

t h e

S t a t e

mandat ed

po r t i o n

o f

t he k i n de r gar t e n.

I d o n o t

be l i e ve t hat

t h e

e xt e ns i o n

o f

k i n de r g ar t e n

i n

t hi s f a s hi o n i s c o ns i s t e nt wi t h

t h e

a dvi c e

gi ve n

by

o u r o f f i c e t hat

an

e x t e n de d k i n de r ga r t e n p r o gr a m mus t

be

c ar e f u l l y s e par a t e d f r o m t h e

r e gul ar ,

s t a t e - f un de d

k i n de r gar t e n pr o gr am

I f ,

i n

f a c t ,

t he Mo n t go me r y Co u nt y Sc h o o l S ys t e m

h a s

ma de ki n de r ga r t e n

an

al l - day

pr o gr am b u t

c h a r g e s p a r e n t s

f o r

o ne - ha l f

o f

t h a t pr o gr am t h e n I be l i e ve t he t u i t i o n- ge ne r a t i n g

po r t i o n wo ul d

be i n

vi o l a t i o n

o f

t h e S t a t e

c o ns t i t u t i o na l man dat e

o f a

s y s t e m

o f #f r e e

pub l i c s c ho ol s . •

I n

o r d e r t o

a vo i d

t h i s

pr o bl e m

I s u g g e s t t h a t t h e t u i t i o n - po r t i o n

be

pr o gr a mma t i c a l l y .

s e p a r a t e

f r o m

t h e

ma nda t e d h al f - da y k i n de r ga r t e n

pr o gr am

One

way

t o

a c hi e ve

t h i s

may

be by

c o n t r ac t i ng o u t t he f e e - po r t i o n

t o

a

pr i va t e pr o vi de r

f o r an

un r e l a t e d ha l f - day pr o gr am


32/34

..

' Dr .

P au l L . V anc e

J u l y

22,

1992

Pag e 3

I ho pe t ha t t h i s

c l a r i f i e s

o ur c o nve r s a t i o n. P l e as e

c a l l

me if you have an y que s t i o ns . ·

Si nc er e l y,

~~~

va i e r i e v.

Cl o ut i e r

As s i s t an t A t t o r n e y Ge n er a l

P r i n c i pa l

Co un s e l

Ma r yl a nd S t a t e

Depar t ment

o f Edu c at i o n

v vc 1 1 9 : py

c c : Dr . Nancy s . Gr a s m c k

Dr . Bo n ni e

s . Cop e l and

Zvi Gr e i s ma nn , Es q .


33/34

' • ~


. . l . TTORNEY GENERAL

ROBERT A. ZARNOCH

ASSISTANT ATI ORNEY GENERAt.

COUNSEL TQ THE GENERAL ASSEMBLY

RALPHS. TYLER

OEPUTY A

T TORNEY

GENERAL

RICHARD

E. ISRAEL

KATHRYN M. ROWE

ASSISTANT A

TTOANEYS

GENERAL

THE ATTORNEY GENERAL

OF

MARYLAND

OFFICE OF

COUNSEL TO THE GENERAL ASSEMBLY

1

04 LEGISLATIVE

SERVICES

BUILDING

90 STATE CIRCLE

ANNAPOLIS, MARYLAND 21 401 -1991

8AL TIMORE& LOCAL CALLING AREA (4 10) 84 -3889

WASHINGTON METROPOLITAN AREA (301) 858-3889

TTY FOR DEAF -ANNAPOLIS. (410) 841-3814 - D.C. METRO, (301) 858-381~~;-~- · · - : - ~ . ; : - T DP .

-·

· - - , - - - - = ' ·

January

14, 1992

··( :::~

•••• J -

The Honorable Brian E. Frosh, Chairman

Montgomery County Delegation

220 House Office Building

Annapolis, l\1aryland

21401- 1991

Dear Delegate Frosh:

You have asked for advice concerning the ability of a county

to charge for the second half of all-day kindergarten.

Specifically, you have asked whether such charges would raise

constitutional problems and whether legislation would be

necessary to permit such charges to be imposed. In my view, no

legislation is necessary to allow the counties to charge for

ext ended k ind erg a r ten programs . However , such programs mus t be

carefully separated from the regular, State-funded kindergarten

programs in order to avoid legal and constitutional problems.

l\1aryland Constitution, Article VIII, § 1 provides:

"The General Assembly ... shall by Law establish throughout the

State a

thorough and

efficient

System of

Free

Public Schools, and shall provide by

taxation, or otherwise, for their maintenance."

Pursuant to this provision, Education Article,

§7- 101

provides:

"(a) All individuals who are 5 years old or older and under 2 1 shall be

admitted free

of charge

to

the public schools of this

State.

(b) There shall be full kindergarten programs in each county of this

State."


34/34

'·

The

Ho n or a bl e Br i a n E . F r o s h

Page 2

The r e qu i r e me n t

t h a t

k i n de r ga r t e n pr o gr a ms be pr o vi de d h a s b e e n

i n e f f e c t s i nc e t h e e ar l y 1970' s . St ar t i ng J u l y 1 , 1 992,

k i n de r ga r t e n a t t e n da nc e wi l l be mandat or y . Se e, ED § 7 - 30 1.

Ho wever , t he l aw

pr o vi de s

t hat :

~-

[ A ] t t e n d a n c e

i n

a

h a l f - d a y

k i n d e r g a r t e n

program

s a t i s f i e s t h e r e q u i r e me n t

o f

t i s A c t

and n o t h i n g i n

t i s

A c t

may

b e .

c o n s t r u e d

t o r e q ui r e

a c o u n t y

t o

p r o v i d e

f u l l - d a y

k i n d er g a r t e n . C h a p t e r 4 6 3 , Laws o f Ma r y l a n d ,

1 9 9 1 ,

§4 ..

Taken

t o ge t he r , t h e s e l a ws

make

c l e ar

t hat ki n de r g ar t e n

i s

a

p a r t o f t h e s y s t e m o f f r e e publ i c s c ho ol s ma i n t a i n e d

by

t h e S t a t e

p u r s u a n t t o Ar t i c l e VI I I ,

§ 1 o f

t he Co ns t i t u t i o n . Thu s , i f

a

co unt y wer e s i mpl y

t o

al l o w c hi l dr e n t o a t t e n d b o t h hal ve s o f t h e

day

o f

ki n de r gar t e n,

i t

c o ul d

n o t i mpos e

a charge f o r

t hi s

s e r v i c e. However , i t

i s

my vi e w

t h a t a

c oun t y may o f f e r ext ended

ki n de r g ar t e n

o r

c hi l d

c a r e

as

a

s e p a r a t e

s e r vi c e a nd

charge

f o r

t h a t

s e r v i c e .

I n do i n g

s o ,

t h e

pr o gr a m s ho ul d be c ar e f ui l y

s t r u c t u r e d

t o

a vo i d t h e appearance t h a t St a t e e du c at i o na l f un ds

a r e b e i n g u s e d t o f i nanc e t h e pr o gr a m F o r e x ampl e , i f t e a c h e r s

f r o m t h e r e gul ar k i n de r ga r t e n pr o gr a m a r e e mp l o ye d , t h e y

s h ou l d

be pa i

d

f o r

t h e

i r wor k f

r

o m f u n

d

s

s

e

p a r

at e f r o m

t h o

s e

us

e d

t o

f i n an c e t he s c hoo l s .

hope t h a t

t hi s

i s

r e s po ns i ve

t o yo ur i nqu i r y .

Si nc er e l y,

/(cit:,~

j;CL_,

Kat hryn

M/

Wo we

As s i s t a nt At t o r n e y Ge ne r a l

K l v l R : ma a

c c :

Val e r i e Cl o ut i e r

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