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Robert J. HenryNovember 20, 2003
November 20, 2003
Robert J. Henry, Esq.
General Counsel
School and College Legal Services of California
5350 Skylane Boulevard
Santa Rosa, CA 95403
Re:Education Code section 76385
Legal Opinion E 03-26
Dear Bob:
I apologize for the delay in responding to you, but budget reductions and increasing workload are beginning to significantly limit our ability to respond to opinion requests. You asked whether Education Code section 76385 applies to basic aid community college districts. (All section references are to the Education Code unless otherwise indicated.) Section 76385 provides:
"A student enrolled in a class offered by a community college district that is not eligible for state apportionments may be required by the governing board of the district maintaining the class to pay a fee for the class. The total revenues derived from the fee shall not exceed the estimated cost of all of these classes maintained."
The language of the section is susceptible of different interpretations. In particular, the phrase "that is not eligible for state apportionment" could modify "class" or it could modify "community college district." If the latter interpretation were applied, there may be an assumption that the section applies only to basic aid districts - premised on the theory that they are not eligible for apportionment. However, we reach a different conclusion based on our interpretation of the scope of "apportionment," and the history of the section. In our view, this section provides general authority for all districts to charge a fee for those classes that are not eligible for apportionment.
Although the term "basic aid district" is a common expression, its statutory underpinning has become somewhat obscured. In fact, we were unable to locate any current express definition of the term as applied to community college districts. We note that Revenue and Taxation Code, section 196.4 defines "basic state aid school district" for the narrow construction of that section, but the reference does suggest that Education Code section 42238(h) is the appropriate section for the K-12 system. That section requires the Superintendent of Public Instruction to reduce apportionment to districts by various sums, including each district's property tax revenues. The corollary section for community college districts is Education Code section 84751. So, unless you advise us otherwise, we will assume that your inquiry relates to community college districts that receive no general fund apportionment because the items listed in section 84751 (e.g., local property tax, student enrollment fees, timber yield tax revenues) exceed the amount they would receive from general fund apportionment.
If the phrase in section 76385 "that is not eligible for state apportionment" modifies "a community college district," the provision lacks meaning because the phrase "a community college district that is not eligible for state apportionments" does not equate with a district's status as a "basic aid district." This is because "state apportionment" includes funding apportioned to districts for various categorical programs (e.g. Extended Opportunities Programs and Services), and all districts are eligible for such state funding.
As to the historic development of the section, our review indicates that the language of current section 76385 was originally added to the Education Code as section 5757.1. (Stats. 1976, ch. 323 (SB 1641).) The sole difference between the original language of section 5757.1 and the current language is that section 5757.1 referred to "such" class rather than "the" class at the end of the first sentence. The Legislative Counsel's Digest for Senate Bill 1641 was silent as to the effect of adding section 5757.1.
Section 5757.1 appeared in the portion of the code related to financing of adult education (noncredit) classes. At the time, section 5757 permitted districts to charge fees to adults who were enrolled in adult education classes, except for ESL classes, citizenship classes, and classes in elementary subjects, and districts could not charge fees for classes taken for high school credit by a person who did not hold a high school diploma. The combination of student fees and apportionment could not exceed the cost of such classes. Thus, except in those listed classes where fees were prohibited, districts could recover their noncredit course costs through apportionment supplemented by student fees.
Section 5757.1 followed immediately after section 5757. Unlike section 5757, it did not limit the students who could be charged a fee to adults enrolled in an adult education class. It allowed fees in those classes that were not eligible for apportionment. Taken together, the two sections created a rational scheme for financing noncredit courses. Where noncredit classes were eligible for apportionment, section 5757 allowed districts to recover their costs through a combination of apportionment and adult student fees. When noncredit classes were not eligible for apportionment, section 5757.1 permitted districts to charge fees up to the amount of their costs.
Section 5757.1 was repealed and added as section 78462.5 by Statutes 1977, chapter 36. Once again, the Legislative Counsel's Digest provides no insights as to any particular meaning of the language.
In the regular legislative session of 1983, chapter 69 added section 78462.5. This "added" section tracked the language that originated with section 5757.1. We have not determined why section 78462.5 was "added" again in 1983 since it appears that it had been in effect, with the same section number, since 1977. Because of the limitations placed on our resources by the current budgetary crisis, we are unable to undertake a comprehensive review of the old provisions, and therefore, the necessity of the 1983 action remains clouded. However, in 1983, the Legislative Counsel did provide some guidance regarding legislative intent by noting:
"Existing law authorizes the governing board of any community college district to establish and maintain classes, and provides for the financing of some of these classes from state apportionments.
This bill would authorize the governing board to require a fee from students enrolled in classes which are not eligible for state apportionments, subject to the limitation that total revenues from the fees not exceed the estimated cost for maintaining all of these classes."
The foregoing explanation is consistent with our understanding of the section. With the Education Code review process of 1990, section 78462.5 was renumbered to 72253.7 in an effort to put all the provisions related to student fees in one area of the code. (Stats. 1990, ch. 1372 (SB 1854).) Section 72253.7 was renumbered to section 76385 in 1993 when the student fee sections were renumbered. (Stats. 1993, ch. 8 (AB 46).)
Regardless of its number, this section has always immediately followed the section that originated as section 5757, and that currently appears as section 76380, which section addresses noncredit classes. Legislative efforts to group all student fees in one place have somewhat obscured the section's scope, but because those recent renumbering efforts have been recognized as technical adjustments and have made no substantive changes to the section, we believe the original intent must be honored.
Therefore, in our view, the phrase "that is not eligible for state apportionments" in section 76385 is intended to modify "class offered by a community college district." We also believe that the term "class" as used in this section likely refers only to a noncredit class where fees are not expressly precluded by section 76380 and that is ineligible for apportionment under section 84757. In practice, it does not matter whether the section expressly addresses only noncredit classes. Because all credit courses and most noncredit classes are eligible for apportionment, they are unaffected by this section. Beyond providing authority for fees in a limited number of noncredit classes, it might also authorize fees in community service classes because community service classes are not eligible for apportionment. However, fees in community services classes are specifically authorized by section 78300, rendering this section unnecessary for that purpose.
We see no basis for excluding basic aid districts from this formula. Like other districts, they cannot charge fees for noncredit classes described in section 76380 or in section 84757(a), but they may charge fees for noncredit classes that do not fit into either of those categories so long as the fees do not exceed the estimated costs for all such classes.
Please let me know if you have any further questions about the foregoing.
Sincerely,
Ralph Black
General Counsel
RB:VAR:sj
E 03-26
E 03-20