By Marsha Sutton
At $40 annually per vehicle, the San Dieguito Union High School District collected over $77,000 in fees this year from students for campus parking permits.
With an overall budget this year of about $107 million, $77,000 may seem insignificant. But there’s a principle at stake here, says Sally Smith, a San Diego attorney and relentless crusader for equal access in public education.
Smith has taken on dozens of school districts throughout California for what she claims are illegal fees that exclude or discriminate against low-income students.
A Uniform Complaint filed by Smith against SDUHSD on May 2 itemized five areas of questionable practices, one of which was student parking fees.
“It is strictly a fee to generate revenue directly from the students which is illegal,” her complaint reads. “[S]tudents are used to generate tens of thousands of dollars and only they bear the burden, not the adults. No district should impose a fee which makes it more difficult for students to get to school, particularly indigent students.”
In her complaint, Smith argued that parking on campus is related to an educational activity, and schools cannot charge fees for educational activities. Supporting this claim, Smith said that “students may have their parking pass revoked for behavior issues … so it is used as student discipline.”
She also noted that staff is not charged for parking on campus, only students. “The parking fees have been imposed unilaterally on only the students,” she said. “School districts that charge fees such as colleges require visitors, staff, and students to pay parking fees. UCSD is an example. The law is fairly applied to all citizens and does not single out minors to bear the burden of the cost for parking.”
Students, she wrote, are required to use their vehicles for school events, and students who can afford the fee “have an advantage over students who cannot pay parking fees because they have access to their vehicles for extracurricular activities.”
In addition, she said the district “recognizes that there are indigent students by requiring students to identify as charity cases to get the [parking] fee waiver, thus causing humiliation and shame to a child …”
Finally, Smith said there must be a specific law that allows school districts to charge particular fees, and there is no such California law identifying parking on school property as a legitimate fee.
She also claimed that the governing board of a school district must approve such fees, and San Dieguito’s board has never taken this action.
To support her arguments, Smith cited guidelines from the Tulare high school district which state that lawful fees must be specified in the California Education Code and must be authorized in advance by the school district’s board of trustees.
“The law requires any public agency, including school districts, to hold a public hearing, at which oral or written presentations can be made, as part of a regularly scheduled public meeting, before adopting any new fee or approving an increase in an existing fee,” guidelines state.
Smith cited a legal interpretation on the issue, which reads in part: “Title 5 says that any fees charged to students must be specifically authorized by law. …
“Although Vehicle Code 21113 has been interpreted as to allow such fees, some attorneys have suggested that without specific authorization in the Education Code, the fees may not be charged since the Vehicle Code only speaks in terms of parking regulations.
“Therefore, districts should consult legal counsel prior to the levying of such fees.”
That is exactly what San Dieguito did.
After consulting with legal counsel, Eric Dill, SDUHSD’s associate superintendent of business services, wrote in his May 30 response to Smith’s Uniform Complaint that, under the law, “schools may charge fees for items not related to ‘educational activities.’ Vehicle Code 21113 has been interpreted to include allowing schools to charge for parking.”
Case law analyzing the Vehicle Code section “allows for the governing bodies of public entities to impose regulations on cars parked on their property,” he wrote.
Despite the apparent requirement that governing boards must establish fees, Dill said Smith’s claim that the fees must be set by the governing board is inaccurate.
“The Vehicle Code section specifically allows the condition or regulation to be set by the governing board or officer of the public school,” his response reads. “As such, the principal or other school officer could set the parking permit fees without violating the California Constitution’s guarantee to a free public education.”
Dill said the practices detailed in the complaint do not violate the “free school” guarantee. “The district and its constituent schools may charge fees for parking,” he concluded. The schools, he said, are complying with the law.
Information provided by Dill showed that student parking fees collected during the 2013-2014 school year were, by school: $18,862 from Canyon Crest Academy, $25,422 from Torrey Pines High School, $11,736 from San Dieguito Academy, and $21,280 from La Costa Canyon High School.
This totaled $77,301, about the same as last year, Dill said. All the money goes into the district’s general fund and does not stay with the schools, he said.
In an interview, Dill said the district received a comprehensive review in 2004 from legal counsel that examined everything schools were charging fees for, and “we had the opinion that we were okay on parking.”
On the question of whether fees can be charged if not specifically authorized by the Education Code, Dill said, “Our position is that driving to school is not a requirement. Nobody gets a grade for driving to school.”
He said students can get to school any number of ways. “Any student can walk, ride, skateboard, carpool, get dropped off by parents, take the bus, take public transportation,” he said.
Staff could also get to school any number of ways, but they don’t get charged a fee to park on campus, which is precisely Smith’s point.
Whether staff should pay for parking if students have to, Dill said, “This is the first time I’ve ever seen that particular argument, that you can’t charge a fee unless you charge adults as well, so that’s a new one.”
Dill said one reason the schools charge students to park on campus is to control traffic in the student parking lot, because there can be more students wanting to drive to school than available spaces. That is not an issue in the staff parking lot, he said.
“That’s one way to control the traffic in the parking lot,” Dill said.
A simple solution to that would be to issue permits at no charge until the number of spaces available have been allotted. So it’s hard to understand how charging for parking reduces demand, unless it’s to weed out those who can’t afford the permit fee.
No legal authority
Smith said Dill cited a court case that applies only to private universities.
“Colleges charge for tuition, books, parking, etc., but the Constitution does not provide for a free college education,” she said, whereas it does for K-12 public schools.
“Calif. Code of Regulations § 350 states that any lawful fee must be specifically authorized by the state legislature,” she said, claiming there is no legal authority for San Dieguito to collect these fees which are therefore illegal.
“Parking fees are particularly egregious because the school district does not require staff nor visitors to pay parking fees, just the teenagers,” Smith wrote in an email.
High school students, she said, “are singled out for the fees to generate revenue while employees pay nothing. I believe parking fees must be returned to students.”
Rick Schmitt, SDUHSD superintendent, said the district is diligent about making sure that no illegal fees are charged to students and that low-income students have equal access to all educational experiences.
“Kids never have to self-identify, and no questions are ever asked,” he said.
Several years ago, the American Civil Liberties Union requested extensive information from California school districts on the subject of student fees and reviewed the material from SDUHSD in depth.
“The ACLU agreed we do all we can,” Schmitt said. “We’ve really gone out of our way.”
But Smith doesn’t mince words. She noted how many tens of thousands of dollars parents in the San Dieguito district donate to their schools, and said charging students additional fees is not just illegal but unreasonably excessive.
“Educators have lost their way,” she said.
Whatever one may think of Smith, no one can argue that she is not driven with a purpose and armed with steely determination to represent the under-represented.
Sally Smith keeps us honest, is a mirror to our conscience, and reminds us all that not everyone is privileged to have the economic advantages in life that some school districts take for granted.
Marsha Sutton can be reached at SuttComm@san.rr.com.