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.

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 (a2schoolsmuse.blogspot.com) about education issues in Ann Arbor, Washtenaw County, and Michigan.

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The protected classes enumerated in the Elliot-Larsen Civil Rights Act include categories based on religion, race, color, national origin, age, sex, height, weight, or marital status. The city of Ann Arbor’s non-discrimination ordinance adds sexual orientation, gender identity, or student status as classes of people against whom discrimination is prohibited. [.pdf of Ann Arbor's Chapter 112 non-discrimination ordinance]

So McMillin’s bill, if eventually signed into law, would nullify Ann Arbor’s Chapter 112 of its city code. The Ann Arbor city council’s resolution cites Michigan’s Constitution, which provides that ”Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law.” [.pdf of Section 22 of Michigan Constitution]

The bill has been referred to the state House judiciary committee. The 17-member judiciary committee for the state House includes 10 Republicans and seven Democrats, one of whom is Jeff Irwin (D-53), who represents a district that includes most of Ann Arbor.

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron. A more detailed report will follow: [link]