July 5, 2002

Stephen Baldwin, Superintendent
Greenbrier County Schools
P.O. Box 987
Lewisburg, West Virginia 24901

Dear Mr. Baldwin:

This is to acknowledge the receipt of your letter dated January 10, 2002 relative to charging students for certain activities and rentals. Specifically, you asked:

"May a West Virginia public school charge students a general fee to cover the cost of specialized instructional supplies, field trips, clubs, or the rental of band instruments?"

West Virginia Constitution, Article XII, Section 1 states that:

The legislature shall provide, by general law, for a thorough and efficient system of free schools.
This provision was addressed in the case of Vandevender v. Cassell, 158 W. Va. 87, 208 S.E.2d 436 (1974) where the West Virginia Supreme Court held that textbooks, workbooks and materials necessary for use in the required curriculum in the public schools of this State must be provided without charge for needy students in order that all students have the necessary textbooks and materials to successfully complete their public school education. As the Vandevender case only dealt with needy students, our Supreme Court was again asked to address the issue in the case of Randolph County Bd. of Educ. v. Adams, 196 W. Va. 9, 467 S.E.2d 150 (1995). In Randolph County Bd. of Educ., the Supreme Court held that:

Section 1 of Article XII of the West Virginia Constitution creates a strong presumption in favor of making everything that is deemed a necessary component to public education cost-free. When a board of education seeks to charge parents for their children's participation in public education, the board bears a heavy burden in rebutting this constitutionally based presumption. Syl. Pt. 3.
* * * *
Whatever items are deemed necessary to accomplish the goals of a school system and are in fact an integral fundamental part of the elementary and secondary education must be provided free of charge to all students in order to comply with the constitutional mandate of a free school system pursuant to Section 1 of Article XII of the West Virginia Constitution. Syl. Pt. 7.

This Court went on to state "that free does not just mean tuition free but also includes a right to educational materials that are basic to a quality education." Id.

As a result of the foregoing as well as the United States Constitution, Amendment XIV, which states that, "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws", a West Virginia public school may not charge any student a general fee, if such fee amounts to a tuition, which, if not paid, denies students access to public education. If the non-payment of the "general fee" does not act to preclude students from public education, the particulars of your question should be addressed individually to determine permissibility.

The critical inquiry is whether the specialized instructional supplies, field trips, clubs or band instruments are necessary for use in the required curriculum. The required curriculum includes both required courses and electives required by the students for their particular career cluster. Each item should be examined to determine whether the it amounts to a portion of the required curriculum, that is, it is meeting some content standard or objective for example. If the item or activity is a portion of the required curriculum, then the students may not be charged a fee for the same.

You should also be mindful that all students are given equal access to all educational opportunities and alternate sources to defray the cost of the "extras" should be sought even for those non-curricula related activities so that all students may share in the full experience of the activities available in our public school system.

Hoping that I have been of service, I am,

Sincerely,

/s/