By Marsha Sutton
In her fight to ensure fair and equal access for all public school students in California, Sally Smith is a champion for those without a voice and Public Enemy #1 to those who view her as a destructive force in public education.
Smith is a doggedly determined attorney who began her pursuit to eliminate improper fees in public schools in the San Diego Unified School District where her children attended school.
Since then, she has branched out and been involved in dozens of legal cases against school districts state-wide and has sponsored legislation in Sacramento to force districts to change policies that she says unfairly target poor families.
Last month, Smith set her sights on the San Dieguito Union High School District, filing a Uniform Complaint on May 2 that charges the district with illegal fees in five areas: student parking, sports physicals, athletics transportation, withholding graduation and cap-and-gown sales.
Eric Dill, SDUHSD’s associate superintendent of business services, responded May 30, writing in summary, “The district is compliant with the law, including the state constitution’s free school guarantee, in all aspects brought forth by this complaint.”
Although Dill’s response states that the district has done nothing illegal, he hedged a bit on the cap-and-gown charges for graduating seniors.
Because it was not made clear that school districts must provide caps and gowns this year at no charge, the district plans to refund money to all families that purchased caps and gowns if they don’t want to keep them or personalize them.
Families should save their receipts, since each school may have charged a different amount, with cost increases after deadlines passed. Dill said the district will contact families next week to let them know how to return their cap-and-gown attire after graduation for full refunds. More on this next week.
More immediate is the issue of sports physicals, which are being offered by the district’s high school foundations for a $25 fee this week, to students wishing to participate in a high school sport for the 2014-2015 school year.
The foundations at all four San Dieguito high schools offer physicals to athletes as a service to the community, and charge $25 – which is supposed to be clearly labeled as a donation and not a fee.
But at Torrey Pines High School and Canyon Crest Academy, the initial announcements telling parents about these “physicals nights” did not say the $25 was a donation, and did not state that students could go somewhere else for their physicals.
Torrey Pines promoted it this way: “TPHS – All Sports Physicals $25 (annual physicals are a requirement to complete the athletic packet). Thursday, June 5.”
Canyon Crest’s flyer, distributed through CCA’s foundation newsletter on May 6, stated that athletes are required to pass a physical exam and students can get their physicals on June 4. Cost was given as follows: “$25 cash or check payable to ‘CCAF’ (CCA Foundation).”
Nowhere did it say the $25 is a donation or that physicals can be obtained elsewhere.
When I spoke to CCA principal Karl Mueller on May 13 about the May 6 flyer, he said he alerted the foundation to the problem and reviewed new language which he said included phrasing indicating that this was only one option and that the $25 is a donation and not a fee.
He also said a revised flyer noting the clarification would be distributed soon.
No revised flyer was ever distributed. In fact, on May 23 the same flyer once again was sent out.
“I saw the language change in the draft for approval,” Mueller said on May 24, clearly frustrated. “I thought it was done.”
Mueller said he would speak with the foundation director to learn why the corrected flyer was not distributed, but noted that other people who work with the foundation are volunteers and sometimes the right messages don’t get communicated.
“I’m going to make sure that’s corrected and I’ll have it re-sent,” he said.
It’s now June 2, 10 days later, and still no revised flyer has been distributed – although the flyer found on the district’s website, after digging around a bit, now states that “one option” for obtaining a physical is to attend the CCA Sports Physical Night. But still no clarification that the $25 is technically a donation and not a fee.
Meanwhile, the foundation never distributed a new flyer to make it clear that there are corrections, so unaware parents may easily be left with the wrong impression from the earlier flyers that they must get a physical for their kids through the foundation at a cost of $25.
Fee for service
Smith called it a fee for service when charitable nonprofit foundations charge for physicals, and said, “It is illegal for a charity to sell a service …”
She cited the Singer v. United States court case: “[I]t is well established judicially that in order to be deductible …, a contribution must qualify as a gift in the common law sense of being a voluntary transfer of property without consideration.”
Dill, in his formal response to Smith’s complaint, disavowed responsibility for the foundations’ actions, saying the district does not charge nor receive fees for student-athletes’ physicals, and does not sponsor these “physicals nights.”
Therefore, the district, he wrote, “is in compliance with the state constitution.”
“If it were something we were doing at the school, that would be one thing, but this is a foundation-run thing,” said Dill, drawing a dubious distinction between an organization that raises money on behalf of the school, and the school itself.
In his response, Dill wrote, “The fees charged are accepted by the foundation, not the school or district, and are not transferred from the foundation to the district. The district receives no money from the giving of physicals, and does not offer physicals to students.”
He said the foundations “know our prohibitions” and general guidelines are shared with them. “But we don’t always vet everything they put out,” he said.
Even though they are independent entities, are school foundations not under the direction of the school district when they violate the law? Do district employees have no control over foundations when the foundations go about raising money for schools in the name of the school?
The way the foundation presents the information is only part of Smith’s concern.
In her interpretation of the law, she believes it is illegal to force students to pay for a physical at all, to anyone, because she claims participation in athletics is integral to the overall educational experience.
In her San Dieguito complaint, Smith compared sports physicals to the requirement that students wear P.E. uniforms, which must be provided at no charge.
If the district requires physicals, then the district must pay – or the district can waive the requirement for physicals, she asserted.
She included in her complaint a sample letter from the Murrieta Valley High School athletic department, which states in part, “We do not require physicals for tryout but recommend one.”
But Dill disagreed, writing in his response, “Exams are required in order for students to be compliant with the CIF rule requiring that all athletes complete physical exams.”
Dill said the law requiring students to have physicals to play high school sports goes back decades and is clear.
Smith agreed that the California Interscholastic Federation requires physicals, but said, “While CIF may make it mandatory, CIF does not override the California state constitution which prohibits any fees to gain entry to participate in school activities.”
The correct wording
Dill said the foundations at the district’s four high schools, all of which offer a similar physical exam evening for athletes, “charge a nominal fee to generate revenue for the foundation.”
But the physical exam, he said, can be obtained anywhere, not necessarily through the school’s foundation, as long as the school’s form is signed by a doctor or recognized medical professional.
“We don’t care which doctor or physician’s assistant signs it or how you get that, but we just need it,” he said.
He noted that the foundations’ flyers only needed to include wording stating that the $25 was a donation and that the physicals through the foundation-run event were just one option.
“Then people know it’s not a requirement,” Dill said. “It’s merely an option that families have.” No one is required to go to the foundation event in order to participate in athletics, he said.
Dill rejected the pay-to-play charge, again emphasizing that having a physical is a CIF rule, not the district’s – an argument Smith refutes.
Dill said the district would not pay a co-pay or reimburse for an out-of-pocket expense if a student wanted to play a sport but could not afford the physical. But he said he might suggest to the foundation on their “physicals night” that the exam be provided to financially strapped students at no charge.
“I’m sure they would do that,” he said. “But it would take those conversations for that to happen.”
Marsha Sutton can be reached at SuttComm@san.rr.com.
Next week: Reimbursing families for cap-and-gown costs for graduating seniors