Column: The Case for Free Public Schools

Michigan ACLU files lawsuit against Ann Arbor Public Schools, challenging whether a fee for seventh hour classes is constitutional

Earlier this week, the American Civil Liberties Union of Michigan – along with two plaintiffs – filed suit against the Ann Arbor Public Schools for the school district’s plan to charge students who want to take a seventh class in a semester.

Ruth Kraut, Ann Arbor Public Schools, The Ann Arbor Chronicle

Ruth Kraut

The lawsuit argues that the Michigan Constitution requires a free public education for all Michigan students, and that charging for a seventh hour is unconstitutional. Kary Moss, ACLU of Michigan executive director, outlined the position in an ACLU press release: “Allowing this model to continue will open the floodgates for any district in the state to charge for every conceivable part of their students’ education creating a two-tiered system in which students who have money get ahead, while those who do not fall behind.”

In early June, I wrote my first column for The Chronicle, about three aspects of the AAPS budget proposal. ["Column: Disparate Impact of AAPS Cuts?"] One of the areas I wrote about was seventh hour, a term that refers to the option of taking a seventh class during a semester, rather than the more standard six classes.

I was concerned about issues of equity – about Skyline students being able to acquire 7.5 credits in a year without paying, while Pioneer and Huron students could only earn 6 credits in a year for free. I was concerned about students losing access to the arts. I was concerned about disparate impacts.

I assumed that – as with many other proposals – this idea was poorly conceived, but legal.

A couple of days after my column was published in The Chronicle, I talked with the ACLU’s Kary Moss. (Full disclosure: Kary is a friend of mine, and we frequently discuss education issues. And that first Ann Arbor Chronicle column ended up as “Exhibit 4” in the ACLU complaint.)

Kary suggested to me that she was concerned about seventh hour, too – because she believed the move to charge tuition was unconstitutional.

Unconstitutional?! That thought had not even occurred to me.

Background of Constitutional Challenges

In 1966, school desegregation was a major issue in Ann Arbor. So, too, was a decision by the Ann Arbor school board to charge students fees for registration, textbooks and other classroom necessities.

At the heart of the issue was a discussion about what it means to provide a public education. The first public school in the nation (before we were a nation) was Boston Latin, founded in 1635. And in 1827, Massachusetts passed a law making schools free to all children.

In Michigan, the idea that a commonly-funded public education should be free to students began in the 1800s. In 1850 our state Constitution stated [emphasis added]:

Sec. 4. The legislature shall, within five years from the adoption of this constitution, provide for and establish a system of primary schools, whereby a school shall be kept without charge for tuition, at least three months in each year, in every school district in the state; and all instruction in said school shall be conducted in the English language.

Different language was enshrined in the 1908 state constitution, Article 11, § 9:

The legislature shall continue a system of primary schools, whereby every school district in the state shall provide for the education of its pupils without charge for tuition; …

By 1963, the Constitution – and the language in it – had changed slightly, and included secondary schools, but the sentiment was the same. Article 8, § 2 states:

The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.

We are still governed by the 1963 Michigan Constitution.

Despite the clear words of the Constitution, the fact is that over the years, public schools have often found themselves “pinched” in tight budget times. That was true in the mid-1960s, when the Ann Arbor school board found itself hard-pressed and decided to charge students for books and school supplies. Parents were unhappy, and they challenged this decision in circuit court on Sept. 6, 1966.

By 1970, the case had made its way to the Michigan Supreme Court, and in Bond v. Ann Arbor School District, the Supreme Court ruled that “it is clear that books and school supplies are an essential part of a system of free public elementary and secondary schools.”

In other words, the Ann Arbor school district could not charge students for items that are necessary for school – and neither could any other Michigan school district.

Over the years, other questions have come up. Did school districts need to provide sneakers or clothing for a required gym class? What about fees for field trips or after school athletics? In many cases, the answer is that yes, fees can be charged. I’ve paid for my children’s “pay-to-play” athletics. I’ve paid after-school theater fees. I have enough money to pay for them, but at times, with three children in the schools? Those fees really added up to a lot of money.

In a 2011 memo, State Superintendent Michael Flanagan reminded school districts that: “In March of 1972, the State Board of Education developed a position statement regarding Free Textbooks, Materials, and the Charging of Fees. For your information, this position statement is available on the Department’s website.” [.pdf of Flanagan memo] [.pdf position statement regarding free textbooks, materials and the charging of fees]

Perhaps Flanagan was responding to an incident in the Birmingham Public Schools district. Recently, Birmingham Public Schools settled a class action lawsuit, brought – again – by parents, around the issue of – again – being charged for school supplies, registration, and locks. As a result of the recent settlement, parents will be able to get back the fees they were charged over the last three years. [.pdf of Birmingham Public Schools settlement]

In that 2011 memo, Flanagan also summarized the State Board of Education’s position on charging fees for courses, writing: “In short, the position clearly indicates that: School districts may not make charges for any required or elective course, such as for general or registration fees, course fees, and/or textbook and school supplies.”

ACLU Case Against AAPS

Shortly after I talked with Kary Moss in early June, the ACLU sent the Ann Arbor school board a letter, writing that seventh hour “provides students with an opportunity to obtain credits toward graduation” and “cannot be differentiated from any other period of the traditional school day.”

Further, the letter stated: “These classes are not like extracurricular activities, which an intermediate appellate court allowed, in Attorney General v. East Jackson Public School, to be subject to special fees. The activities discussed in that case were not ‘necessary elements of a high school career’ and students did not receive credit for participation” [.pdf of ACLU letter to AAPS].

[Slight digression: If you're interested, the ACLU also has a fascinating “Right to Read” case wending its way through the Michigan courts. You can find more information about that here.]

Despite the ACLU letter, I heard individual AAPS board members say that they hoped to try out the fee system this year at $100/seventh hour, and then charge more – a lot more, like $400/class – the following year. Realize that $400/class would likely be unaffordable for many people who could afford $100/class.

Scan of a summer 2013 tax bill.

This is a scan of a summer 2013 Ann Arbor tax bill. While the state Constitution promises schools that are free to students, the schools in fact are commonly funded, by us – the public. I think it’s worth every penny.

School board members seemed unfazed by the idea that they could potentially be sued. They seemed unconcerned that the charges would only affect the students with semester-long classes (at Pioneer and Huron) and not the students with trimesters (at Skyline). They also seemed unmoved by a letter in late June from Huron and Pioneer school counselors, asking the board to reconsider its decision because of the inequity between schools and because it will be hard to help students who need to meet graduation requirements. [This letter is attached as Exhibit 13 in the ACLU complaint.]

In the ACLU’s complaint – submitted on Wednesday, Aug. 7, 2013 in the 22nd Circuit Court of Washtenaw County – there are affidavits from the plaintiffs, Paloma Paez-Coombe and Elliot Polot. (They are both minors, so their parents file as “next friends.”) I found their statements very moving. [.pdf of ACLU complaint]

Elliot, who will be a senior this year, wrote: “My first choice of college is University of Michigan. They offer you a specific program where they can certify you to be a K-12 band director while still allowing you to study your instrument. . . To make myself competitive for this college program, I needed to take four years of band. Without seven hours of classes, I never would have had the opportunity to take advantage of the band program the way that I did. . . Some families can afford to pay for seven hours and some cannot. It’s not fair for families who can’t afford to pay the fee and I think they deserve the same opportunities as everyone else.”

Paloma will be a junior and is planning on taking seven classes each semester next year, including multiple AP classes. She wrote: “Last year, the only classes I took that did not count as requirements toward graduation were Orchestra and Spanish. I still had to take one semester of seven hours to get in all of my requirements.” She also wrote that the arts are very important to her at school, saying: “Orchestra is a nice way to do something physical and out of feeling instead of regular academics. . . It’s a good way to let out stress.”

In addition to taking seven hours each semester, Paloma has also paid to take an entire year of English online, and has been charged $250 for each of those classes. I wonder: If charging for seventh hour is not legal, would charging for English online be legal? Under what circumstances?

I personally found it hard to understand why the Ann Arbor school board would ignore the ACLU’s mid-June letter. I found it hard to understand why the school board would ignore the State Board of Education, which had written that “School districts may not make charges for any required or elective course.” I found it hard to understand how the school board could ignore the inequity in number of credits that students would be able to earn in a year at Skyline versus Huron and Pioneer.

I found it even harder to understand why the school board would risk spending money on a lawsuit, when charging a fee would only bring in an estimated $100,000 – out of an almost $184 million budget. I found it hardest to understand why they would want to make it more difficult for students to take critical classes.

In case you’re wondering, I’m rooting for the ACLU to win. And I’m rooting for students to be able to take the classes they want to take, whether that means–for a given student–six hours or seven hours per semester. But even if the ACLU case is not successful, the idea of charging for seventh hour is still a terrible one. As the 1908 Michigan Constitution stated: “Schools and the means of education shall forever be encouraged.”

To make that a reality, they need to be free.

Ruth Kraut is an Ann Arbor resident and parent of three children who have all attended the Ann Arbor Public Schools. She writes at Ann Arbor Schools Musings ( about education issues in Ann Arbor, Washtenaw County, and Michigan.

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  1. August 9, 2013 at 11:21 am | permalink

    Paloma’s statement about the importance of electives (orchestra, in her case) hits home with me. When I taught in Detroit, our middle school had no electives except for once a week gym. Kids were wiped out by the end of the day because they had spent their entire day with academics with no chance to let lose a little with art, music or even a foreign language. I knew this was a bad thing but didn’t realize how bad until I started working in a slightly more affluent county (still nowhere near as affluent as the Ann Arbor district but higher per capita than the D). The electives are varied and many and I think it makes a real difference for the kids. It is also good for kids like the ones I work with (visually impaired or learning disabled) who may not excel at academics. I have had more than one kids with LD excel in art classes or computer graphic design. This can make the difference between staying in school and not staying in school. To make them pay for this sort of privilege is to set a very bad precedent. (I know that slippery slope arguments are fallacies but one could imagine where this sort of thing could go and it is very scary)

  2. By Dan1737
    August 9, 2013 at 11:54 am | permalink

    I don’t know how the courts would decide the issue but it seems that anything that goes on a student’s transcript as course credit towards HS graduation has to be free. Athletics and clubs are different. It’d be great if they could be free and participation in those may affect college admissions but it seems easier to make an argument that they don’t fall under the core mission of public education. I’m shocked that the AAPS could have discussed the issue and come to the conclusion that 7th hour wasn’t part of what constitutes free public education. Maybe they need to take a step back and generate an explicit mission statement before they act on details.

  3. By Kathleen Folger
    August 9, 2013 at 1:26 pm | permalink

    Did the AAPS actually have an attorney review their plan to charge tuition? The Michigan State Board of Education Position Statement cited in the ACLU suit clearly says: “School districts may not make charges for any required or elective courses such as for:
    (a) General or registration fees
    (b) Course fees or materials ticket charges
    (c) Textbooks and school supplies”

    I don’t understand how an attorney reading that could advise a school district it would be legal to charge 7th hour tuition.

  4. By Liz Margolis
    August 9, 2013 at 9:06 pm | permalink

    Yes, legal reviewed this program before it was voted on by the Board. Let’s remember this is about 7 classes not 7 hours. The State funds 6 classes for students per day, not 7 classes. AAPS has had the ability to fund that extra 7th class but that funding is no longer available. The other choice was to eliminate the 7th class from the schedule. Students who qualify for Free and Reduced Lunch as well as other categories such as families who receive food stamps will not have to pay the fee. Last year about 16% of Huron, Pioneer and Community students took a 7th class (approximately 600 out of 3600 students from these three schools).

  5. By TJ
    August 9, 2013 at 10:09 pm | permalink

    For Liz M / AAPS board: The question remains: why do Skyline students get extra hours (and non-mandated “magnet program” classes) without a fee?

  6. By Topher
    August 10, 2013 at 12:43 pm | permalink

    While I agree that students should not have to pay for classes, the discussions that I am hearing are missing the larger issue; the state of Michigan is set on dismantling public education by reducing the per pupil allotment (specifically Ann Arbor is greatly affected because of proposal A and the dissolving of the hold-harmless clause that protected it).

    While I would continue to advocate for tuition-free public education, the larger battles that must be fought are at the state level and a governor who is intent on for-profits making money off of children’s education (Have you noticed the giant billboards for, or the survey you can take on their website that insists that the online school is a good fit for your child?). I wish more people would actively write letters, contact their representatives, contact the governor, and fight for increased per pupil funds and local control.

    If Ann Arbor were legally allowed to locally increase per-pupil funds, I feel confident the city would (the state says it must be a county millage, which failed in 2009 because surrounding cities have differing opinions on local funding). Shouldn’t Republicans be in favor of local control of money when it comes to education?

  7. By Maria Huffman
    August 10, 2013 at 7:17 pm | permalink

    To Liz Margolis, I think this attempt to balance the budget will make passing the county wide millage much more difficult in 2014. So much of the money raised could potentially end up paying for a lawsuit that was preventable, and I think a future millage request is going to be a hard sell, in-town and out-county.

  8. By Jack Panitch
    August 13, 2013 at 7:15 am | permalink

    “In case you’re wondering, I’m rooting for the ACLU to win.” Ruth: this is an excellent opinion piece. I just have one issue: in our legal system, we wait to hear both sides before we decide a case. The AAPS hasn’t even answered the complaint, its answer being due on or around September 4th (I think). Briefs have not yet been filed. We have to understand that while the intellectual heavy-lifting that went into the legal opinion the District obtained has been done, it now has to be acted upon in an entire litigation strategy. I realize you have to write something, and I sincerely appreciate your coverage. In fact, I don’t know who would do a better job. But while your opinion may never change, you show prejudgment (I won’t say prejudice) by even forming one before you have reviewed all the support for both sides of the argument. Your last article is cited as Exhibit 4 in the ACLU’s complaint. I would just be careful (this is not a warning or even a caution, just food for thought) about how you cover this story. Again, thanks very much for the coverage.

  9. August 14, 2013 at 10:59 am | permalink

    Re (8): This column is not a legal argument. It is a policy prescription. (In case you’re wondering, I agree with Ruth that this is a bad policy.) (No, I have no idea how the AAPS can address their budget problems.)

    What I see here is part of a trend toward increasing inequality in our society. The public schools have long been the great equalizer and mixer of diverse demographics in communities. One valuable lesson that students (or, as we used to call them, pupils) learned was that people who were different from them were also human beings who could even be befriended and respected.

    The rush to charter schools has undercut this valuable social effect of public education. Now a fee-based system for enrichment activities in the public schools could do the same. Students who are able to afford these special classes will naturally form social networks apart from those who are unable to participate.

    I started thinking about this after hearing a public radio discussion of the effect of high-priced private college student housing. There also, we are seeing a self-segregation based on family income. The commenter mentioned the likely life-long effect of sustained social networks including only similarly fortunate students.

    The overall trend in our society toward increasing inequality based on income is insidious. It is likely to divide our society in ways beyond access to material goods. (We all noted the great empathy that Mitt Romney expressed toward the “47%”.) I’d like to think that the taxes I pay to support a public school system are being used in a way that will help to maintain equity, not erode it.

  10. By suswhit
    August 14, 2013 at 2:05 pm | permalink

    “I’d like to think that the taxes I pay to support a public school system are being used in a way that will help to maintain equity, not erode it.”
    Well said, Vivian. I’ve been thinking a lot about the inequity among the various HS options in Ann Arbor. Some public school kids get an education in a smaller more personalized environment and at a higher cost simply as a reward for winning a “lottery.” Not because they did anything to need or earn it. Skyline kids get quite a few more credit hours because of their trimester system. And school board members are looking toward changes at Clemente, where students do have special circumstances, as a cost saving move? You’d think these were schools in neighboring towns instead of different sides of Ann Arbor. It’s sad that even in a town like ours, kids from different sides of town are getting such disparate opportunities.

  11. By Dan Ezekiel
    August 14, 2013 at 6:49 pm | permalink

    “The public schools have long been the great equalizer and mixer of diverse demographics in communities. One valuable lesson that students (or, as we used to call them, pupils) learned was that people who were different from them were also human beings who could even be befriended and respected.” Well put, Vivienne.

    It’s hard for me to escape the idea that this is exactly what right wingers hate about public schools, one of the only places today where people of all races and all income levels mix freely.

  12. August 15, 2013 at 12:29 am | permalink

    It looks like the school board voted tonight to rescind the 7th hour fee. Maybe their legal counsel had second thoughts: [link]

    I still don’t really understand why (or under what conditions) students have to pay a $250 fee for online classes or community resource classes that they get credit for–or why that would be different from the 7th hour fees. Is it only if students take an eighth hour? Is it only if they do it during the summer? Those classes also show up on the students’ transcripts. Does anybody understand this?

  13. By Jack Panitch
    August 15, 2013 at 12:40 am | permalink

    Re (9): I see a lot of heartfelt words in the comment (I’m not referring to Ruth’s article) without any assessment of facts that don’t support the position or any attempt to understand the opposing viewpoint. Ms. Armentrout, I don’t believe I am a constituent of yours. Listening to all sides before making a decision clearly isn’t of value to you in this particular instance for whatever reason. “Legal argument” or “policy prescription,” it would inarguably be bad policy to make decisions based on hearing one side of an issue. A majority of seven people — seven people with the best interests of the students of the Ann Arbor Public Schools in mind in everything they do — made this decision. And yet, the Board of Education just voted unanimously this evening to rescind the $100 fee for further study. Depending on the facts and reasoning, I might agree with you and Ruth. I don’t know. One thing I promise you though: unless I have to make a call on the spot, I will always listen to both sides before making a decision. I recognize not everyone follows this policy.

  14. August 15, 2013 at 12:49 am | permalink

    Jack, I think Vivienne had a very well-articulated argument.

    But in any case, I was not (and will not, necessarily, in this column) try to be “balanced” or “see both sides”–because it’s a column, and meant to be analytic.

    In this case, however, I think I did get to hear both sides. I heard the board speak extensively, at several meetings, about the idea of a fee for students who take a seventh hour. I didn’t hear–for instance–a single board member speak about equity concerns between the number of “free” credits a Skyline student could take versus the number of “free” credits a Huron or Pioneer student could take. I’m not a lawyer, and I don’t even play one on tv, but that doesn’t mean I don’t have an opinion that I’ll share in public.

    I am glad that the school board has come to its senses. I hope that “sending something to the planning committee” in this case is a way of saving face and burying the idea. And I hope that next we will be looking at the fees for online classes and CRs, and the conditions under which those could rightly be imposed–or should also be cancelled.

    And at the same time, [6] Topher is correct that we need to keep advocating at the state level for adequate school funding, so that we don’t get into these kinds of issues.

  15. By Jack Panitch
    August 15, 2013 at 1:02 am | permalink

    Ruth, I think Vivienne had a very well-articulated argument, too. And I think you know me well enough to know that my thinking is very similar to hers and yours on this type of issue. But my training is very different. The first year of law school trains you to isolate your preconceptions and move beyond them in an effort for truth, justice and the American way. That’s what I do, and I, too, make no apologies for that.

  16. By Roger Kuhlman
    August 15, 2013 at 2:33 am | permalink

    The real problem here is that AAPS spends excessively and can not do proper budgeting. They always go with lavish and expensive solutions when cheaper alternative would do. I wonder when the AAPS BOE is going to discover the fact that the taxpayers of the district are important stakeholders in the business of education. Many of us taxpayers can not afford the very high city property taxes we have to pay.

  17. August 15, 2013 at 7:37 am | permalink

    Re (12): Mr. Panitch, I don’t have any “constituents”, since I hold no elected position.

    Actually, I’m very much an “on the one hand, on the other hand” person and I think I understood the reasoning behind the additional fee. I just didn’t agree that it merited going against a very basic principle.

    I’m glad that the board decided not to take that step.

    As an aside, I have studied and reflected on the concept of fees for services for a long time. I was formerly on the Board of Commissioners and prior to that on a budget review committee for the City of Ann Arbor that met for over a year to consider revenue and budget cut options. There is a lot to be said about fees for basic services, but this isn’t the place.

  18. By John Floyd
    August 15, 2013 at 11:30 pm | permalink

    I echo the comments to the effect that ultimately, this issue has to be solved in Lansing, and that the individuals now holding the reigns of state government power would do well to reconsider their spending priorities.

    I would support releasing non-violent low-level street drug users from prison, and channeling any resulting savings into K-12 education.

    BTW, since on-line education has no marginal costs , why are students charged anything for taking on-line classes?