PUBLIC

263

Gen. 262]

(72 Op. Att'y

262

trict library "did much to establish certain principles which

formed the basis of dur present public system. For one thing, it
provided for taxation for free library service and also for state aid
to libraries, both important milestones in library history. Even
more significant, perhaps, it recognized the library as an educational agency, an extension of the system of public education beyond the formal instruction offered by the schools." C. Joeckel,
The Government of the American Public Library 12 (1935). By
the mid-nineteenth century, public libraries as we know them today were essentially developed and defined.

LIBRARIES

FEES-;Pl.BLIC LIBRARIES Mrsr PRO\'JDE ACCESS To lXFOR)lATIONRESOl'RCES VlITHOUT CHARGE BUT MAY IMPOSEFEES
FOR AXCILLARYCOXYE~IEXCES.

December 9, 1987

Stuart foe! Gordon, Esquire

Commitiee Counsel
Joint Committee on Aiiministroiioe, Executive,
and Legislative Review

In Maryland, the General Assembly has declared expressly

that "public library resources and services are essential components of the educational system." ED 23-lOl(a)(l). 2 This legislative finding reflects a long-accepted understanding of the educational role of public libraries: "[These] institutions form an
integral part of a system of free public education and are among
its most efficient and valuable adjuncts," the Court of Appeals
wrote more than a half-century ago. A government has "no more
important duty or higher purpose," the Court of Appeals continued, "than to provide free public libraries for the benefit of its inhabitants." Johnson v. Mayor and City Council of Baltimore, 158 .
Md. 93, 103-04_(rn30).

On behalf of the Committee, you have requested our opinion on

the imposition of fees by public libraries. Specifically, you have
asked (i) whether State law permits county public libraries to
charge user fees for services; and (ii) if it does, what services are
subject to charge.
For the reasons stated below, we conclude that the public libraries of this Stat~ generally must provide access to their information resources without charge, regardless of the format in which
the information is presented. 1 However, public libraries may
charge tees for the use of ancillary conveniences like copiers,
typewriters, and computers for management of personal data.
They may also-charge fees when a patron exceeds reasonable limitations on the use of library resources. A proposed regulation of
the State Board of Education on library services, now before the
Committee, is consistent with this construction of the statute.

Under ED 23--301, a county governing body may establish a

public library system, governed by a board of trustees or equivalent agency. The local board of library trustees is responsible for
the daily operation of the county libraries, subject to the oversight power of the State Board of Education. ED 23-104 and

I
Introduction
I

Public libraries have their historical antecedents in the public

education system. In the early 1800's, school district libraries
were established by statute in New York State. The school dis-

I This conclusion confirms prior advice on the matter. Letter from Assistant Attorney General Richard E. Israel to Delegate Joan B. Pitkin (February 20, 1987).

.. \.~,

~'-t

Public libraries in the State of Maryland have a venerable history. In 1696, the Maryland Assembly passed one of the earliest pieces of colonial library legislation, providing that Rev. Thomas Bray's Annapolitan Library, consisting of 1,095 volumes, should
be housed in a public office at the State House in Annapolis so that "any person desirous to study or read any of these said books may have recourse thereunto and the use
thereof." E. Stone, Am.erican Library Development, 1600-1899, at 211 (1977) C'Library Development"). In 1704, the G1;1neral Assembly passed an "act for securing the
Parochial Libraries of this Province,"'which provided for a province-wide library system, called "parish libraries," under the general control of the church, with local commissioners appointed by the Governor. Library Development at 212.
In Chapter 377 of the Laws of Maryland i872, the General Assembly enacted a comprehensive revision of the laws on public education. One section of that law provided
that, "[f]or the further encouragement of education, district libraries ought to be established in each school-house district ... " out of funds appropriated for school purposes.
I

264

[72 Op. Att'y

Gen. 262)

''23.:305. The State Board is empowered to adopt "rules and regulations necessary to administer" Title 23 of the Education Article.
ED 23-104(b)(l).

265

whether the statute affords county public libraries wider opportunity to charge for their services.
.
The word "free," used in connection with provision of a service,
can mean either open to the public or offered without charge. See
generally 17A Words and Phrases 216-18 (1958). In the first
sense, a service is "free" if it is open . to the public, even if a
charge is imposed-"free for the public use, but not free from the
collection of tolls." Dugan v. Mayor and City Council of Baltimore, 5 G&J 357, 375 (1833) (collecting wharfage fees along the
Baltimore City waterfront). Accord, WebberHospital Association
v. McKenzie, 71 A. 1032 (Me; 1908) (free hospital is one open to
the public, not free of charges for services rendered); Bernstein v.
City of Pittsburgh, 77 A.2d 452 (Pa. 1951) (city may charge admission fees to special events in "free" public park).

The State's policy is to "[p]rovide the widest possible access to

the library and information resources of the State." ED
23-10l(b)(2)(i). To that end; each county board is required "to establish and operate the library to provide free service to residents of the county in which it is located." ED 23-305(b)(l).a
Presently, most public libraries provide services to local residents
without charge. However, some county libraries charge for services or materials that libraries describe as "enhanced" -for example, computer searches and videocassette rentals.
The State Board of Education recently proposed a regulation,
after receiving and considering the recommendations of the Advisory Council on Libraries, that defines "free library services" as
follows:

ED 23-305(b)(l) unquestionably uses the term "free" in the

second sense of the term, that a service is to be rendered without
charge, just as the term is consistently used about the public
schools. See Clark v. Maryland Institute, 87 Md. 643, 661 (1898).
See also, e.g., Aurora East Public School Dist. No. 131 v. Cronin,
442 N.E.2d 511 (Ill. 1982); Bond v. Public Schools of Ann Arbor
School Dist., 178 N.W.2d 484 (Mich. 1970); Concerned Parents_.v.
Caruthersville School Dist. 18, 548 S.W.2d 554 (Mo. 1977); Sneed
v. Greensboro City Board of Educ., 264 S.E.2d 106 (N.C. 1980);
Board of Educ. v. Sinclair, 222 N.W.2d 143 (Wis. 1974). Cf Lander v. Village of South Orange, 279 A.2d 633 (N.J. 1971) ("free
public playground" means open to the public and free of charge).

"the use of all library material and services available for

reference/information and for circulation to library users
regardless of format, including:
(1) Printed materials;
(2) Films;
(3) Recordings;
(4) Videocassettes;
(5) Computer software;

The question of whether "free" public schools nevertheless may

charge fees of various kinds has been litigated frequently. In
Part II below, we examine the principles that govern the imposition of fees by public schools. Then, in Part III, we apply these
principles to the analogous problem of "free service" by public libraries.

(6) Online databases; or

(7) Other forms of electronic storage of information." Proposed COMAR 13A.05.04.06C, published at
14:20 Md. Reg. 2160-61 (Sep. 25, 1986).
The Committee's question, in essence, is whether this regulation
reflects a restriction on fees commanded by ED 23-305(b)(l) or

Yi~"\.

II

..... I

Free Schools

This requirement originated in Chapter 515 of the Laws of Maryland 1898, which
declared that: "Every library and reading room established under this Act shall be
forever free to the use of the inhabitants of the town or city where it is located, always
subject to such reasonable rules and regulations as the library board may adopt, in order to render the use of said library and reading room of the greatest benefit to the
greatest number of the people. , .. "

A. Background
Beyond affirming the simple proposition that a "free" school
means one that does not charge tuition, the case law is badly split
over whether schools may charge fees for ancillary services. See
i

!,~ .

266

[72 Op. Att'y

Gen. 262]

generally Annotation, Validity of Exaction of Feesfrom Children

Attending Elementary or Secondary Public Schools, 41
A.L.R.3d 752 (1972, 1987 Supp.). For example, one court approved a school board's charging of fees for an after-hours program of supervised activities, because the program was merely
"a supplemental educational experience." Kiddie Korner Day
Schools, Inc. v. Charlotte-Mecklenburg Bd. of Educ., 285 S.E.2d
110, 114 (N.C. App. 1981) (emphasis in original). See also, e.g.,
Ambroiqqio v. Board of Educ., 427 N.E.2d 1027 (Ill. App. 1981);
Hamer v. Board of Educ., 292 N.E.2d 569 (Ill. App. 1973); Sneed
v. Greensboro City Board of Educ., 264 S.E.2d at 112-13.

267

tional requirement, "means that the schools must be open to all

without expense." Clark v. Maryland Institute, 87 Md. at 661.
We are not aware of any reported case that identifies the range
of activities embraced by the term "free" in' Article VIII, 1.
Hence, we cannot say whether Maryland courts would go as far
as courts in some states in categorizing the activities that must
be offered without charge. But, whatever the outer limits of Maryland's "free public schools" guarantee, we are safe in saying that
anything directly related to aschools curriculum must be available to all without charge. To borrow the North Dakota Supreme
Court's formulation, whatever is an "integral part of the educational system" must be free. Cardiff v. Bismarck Public School
Dist., 263 N.W.2d 105, 113 (N.D. 1978).

Other courts reject efforts to parse the educational offerings of

a school into those that are central and those that are merely supplemental. Under a broad reading of a "free schools" guarantee,
"all educational activities-curricular
or 'extracurricular'offered to students by school districts" are to be free of charge.
Hartzell v. Connell, 679 P.2d 35, 43 (Cal. 1984). See also, e.g.,
Granger v. Cascade County School Dist., 499 P.2d 780, 786
(Mont. 1972) (fee invalid if "a given course or activity [is] reasonably related to a recognized academic and educational goal").

Moreover, the "free schools" requirement is not limited to traditional curricular offerings. 4 In 57 Opinions of the Attorney
General 176 (1972), this office concluded that a county was prohibited from charging a fee of $25 per student to underwrite the cost
of its driver education program, which was part of the school curriculum. "[T]he concept of charging fees to public school students
... [for] courses in the public schools," the Attorney General
wrote, "is contrary to constitutional and statutory principles regarding free public education." 57 Opinions of the Attorney General at 177.5

However, even decisions that reflect so broad a view of "free

schools" acknowledge that fees may be charged for activities that
are merely recreational or social-that is, activities outside even
an expansive definition of a school's educational mission. See, e.g.,
Paulson v. Minidoka County School Dist. No. 331, 463 P.2d 935,
938 (Ida. 1970). As the California Supreme Court put it: "Educational activities are to be distinguished from activities which are
purely recreational in character. Examples of the latter might include attending weekend dances or athletic events." Hartzell v.
Connell, 679 P.2d at 43 n. 14. Moreover, items that are customarily furnished by students for their own personal use are also
viewed as outside the scope of a "free schools" requirement. See
Board of Educ. v. Sinclair, 222 N.W.2d at 148.

III
Free Libraries
Public libraries in Maryland "are essential components of the
educational system." ED 23-lOl(a)(l). Accordingly, we believe
that the core principle identified by the Court of Appeals and ap-

B. Maryland Law

In a different context, the Court of Appeals has recognized that modern educational
needs are more diverse than those of the nineteenth century, and the construction of
the provisions of the Constitution dealing with the public schools ought likewise to be
construed flexibly. Clauss v. Board of Educ., 181 Md. 513, 522-23 (1943).

Article VIII, 1 of the Maryland Constitution provides that:

"The General Assembly ... shall by Law establish throughout
the State an efficient System of Free Public Schools; and shall
provide by taxation, or otherwise, for their maintenance." See
also ED 1-201 ("There shall be throughout this State of Maryland a general system of free public schools .... "). The constitu-

~f.

The opinion implied that fees for instruction outside a school's courses would not necessarily be forbidden. In its regulations, the State Board of Education authorizes local
boards to charge a fee "for any driver education program or portion of a program offered outside of the established school day or school year." COMAR 13A.04.03.05A(l).

268

Gen. 262]

[72 Op. Att'y

plied by this office to schools ought to apply to libraries as well: A

fee may not be imposed for a service that is part of the institu. tion's basic mission. As this office's driver education opinion suggests, when a school's curriculum expands to meet modern needs,
even a nontraditional course must be offered without charge.

269

cess to a library's information resources, no matter what form of

technology conveys the information. 7 The State Board's proposed
regulation applies this concept in detail and therefore properly
implements the statute.
Our conclusion that all informational resources of a public library must be provided without charge does not mean that every
library service must be free. Some activities or services that are
offered in a library, like some activities or services in a school,
might not be an integral part of its educational mission. For example, although lending books and other materials is at the core
of a library's function, providing a patron with a permanent personal copy of material is not; therefore, a library may charge for
copying service.

Applying this principle to the myriad of services offered by

modern public libraries is not easy. Certainly, a library may not
charge a patron who wishes to borrow a copy of Othello, any more
than a public school may charge tuition for an English course. But
may a library exact a fee when a patron borrows a film of the play
on videocassette or a recording of the Verdi opera on compact
disc, or searches a computer data base to locate references to
Othello in recent works?
In our view, these differences in form-that is, in the technological embodiments of human knowledge and art-are immaterial. All are to be "free," because all are an integral part of a publie library's contemporary role.

In addition, the State Board has the authority to decide that

various other conveniences may be subject to charge. In its proposed regulation, the State Board directs that each county library board describe its "[c]harges for utilities or conveniences
available to library users, such as copying machines, coinoperated typewriters or other equipment, and pay computers for
experienced users." COMAR 13A.05.04.06A(3).

Quantum leaps in technology, unimaginable even 100 years

ago, have made it possible to provide access to more timely information in far less space than printed material can provide. But
new tools and new methods of providing a service do not change
the basic task. When a librarian searches indexes and other
sources of information to assist a patron, the librarian is carrying
out a fundamental aspect of library service, regardless of
whether the search involves books or computer data bases.

Fees may also be imposed as a means of enforcing restrictions

on patron use of otherwise free material. Libraries have historically placed limitations on the numbers of items permitted to be
borrowed as well as on the duration of borrowing. Limitations of
this kind are obviously necessary if libraries are to "provide the
widest possible access to library and information resources of
this State" and to "[e]nsure more effective and economical services to all library users." ED 23-101(b)(2). These restrictions
would become meaningless if libraries lacked the power to enforce them through charges. The "free library service" requirement in ED 23-305(b){l) has never been understood to prohibit
fees of this kind, and we do not construe it that way now.

Similarly, the lending of videocassettes, filmstrips, recordings,

and other entertainment media is a library service that must be
provided without charge, even though their format is not the
printed word and their purpose is entertainment. Public libraries long ago yielded to the reality that the artifacts of modern
culture do not arrange themselves into nice categories. 6
In our view, the purpose of the "free service'; requirement of
ED 23-305(b)(l) is to assure that patrons are not charged for ac\.~
. t,
,.,~

~
6
Librarians once debated whether fiction should be included in public library collections. Library Journal, Sep.-Oct. 1879, at 367. The debate itself now seems quaint. As
the first Director of the Enoch Pratt Free Library observed, perhaps with equal
parts insight and resignation: "The public library is most connected with the civilization of the age-so closely that the two are becoming almost inseparable." Steiner,
The Future of the Free Public Libiary, Library Journal, Dec. 1890, at 45.

....

The Attorney General of Clrliforniahas characterized the import of that state's "free
library service" requirement similarly: "If the transaction involves the satisfaction,
with library resources, of a patron's request for information (whether for education,
recreation, or entertainment purposes), such transaction is a 'library service." 61 Op.
Att'y Gen. 512 (Cal. 1978). See a.ls;Op. Att'y. Gen. 26-84(Wi:5. 1984).

The classic charge is a per-day fine for overdue books. Its contemporary analogue
wouldbe a charge for an "excess" computer search-Le., beyondreasonable,generally
applicablelimits of cost or time. See proposed COMAR13A.05.04.06A(2).

~~~~~~~~~~~~-;-~~~~~~~~~~~~~~~'--[72 Op. Att'y

270
IV
Conclusion

In summary, it is our opinion that the public libraries of this

State generally must provide access to their information resources without charge, regardless of the format in which the information is presented. However, public libraries may charge fees
for the use of ancillary conveniences like copiers, typewriters,
and computers for management of personal data. They may also
charge fees when a patron exceeds reasonable limitations on the
use of library resources. The proposed regulation of the State
Board of Education on library services is consistent with this construction of the statute.

J'. JosEPH

CuRRAN,

CHlllSTINE

STEINER,

JR,,

Attorney General

Assistant Attorney General

JACK SCHWARTZ

Chief Counsel
Opinions and Advice
Editor's Note: Since the issuance of this opinion, the General
Assembly added the following provision to ED 23-305: "In Baltimore and Prince George's Counties, the board of library trustees
may permit a library to charge fees for the rental of video cassettes." ED 23-305(b)(2). See Chapter 773 (Senate Bill 782).
Laws of Maryland 1988.

Gen. 271]

271
,

PUBLIC

OFFICERS

"OFFICE OF PROFIT"-GENERAL ASSEMBLY-POLICE 0FFICERSIMULTANEOUSSERVICE As MEMBER OF. HOUSE OF DELEGATESAND OFFICER OF UNIVERSITY OF MARYLANDPOLICE
FORCE PROHIBITED.

January 13, 1987

The Honorable R. Clayton Mitchell, Jr.
Maryland House Of Delegates

You have requested our opinion on whether a person who has

been elected to the House of Delegates may continue to serve as
an officer of the University of Maryland Police Force after taking
the oath of office as a Delegate.
For the reasons stated below, we conclude that simultaneous
service as a member of the House of Delegates and an officer of
the University of Maryland Police Force is prohibited by Article
35 of the Maryland Declaration of Rights. Accordingly, upon taking the oath of office as a Delegate, the member will have abandoned, by operation of law, his position as a police officer.

I
Discussion
Article 35 of the Declaration of Rights provides, in pertinent
part, that "no person shall hold, at the same time, more than one
office of profit, created by the Constitution or Laws of this State
. . . . " When a person who holds one office of profit accepts a second office of profit, the first office is deemed to have been abandoned. Hetrich v. County Commissioners, 222 Md. 304, 308
(1960); Truitt v. Collins, 122 Md. 526, 530 (1914); 59 Opinions of
the Attorney General 121, 127 (1974); 48 Opinions of the Attorney
General 323, 324 (1963).
This office has summarized the criteria for determining an "office of profit" as follows:
"l. The position was created by law and involves continuing and not occasional duties.

272

(72 Op. Att'y

Gen. 271]

2. The holder performs an important public duty.

powers for the benefit of the public." Macy v. Heverin,

44 Md. App. 358, 362 (1979).

3. The position calls for the exercise of some portion of

the sovereign power of the State.

See also 22 Opinions of the Attorney General 473 (1937) (constables, as "peace officers," hold office of profit); 22 Opinions of the
Attorney General 470 (1937) (special policeman, "endowed with
all the powers of common law constables and City policemen,"
holds office of profit).

4. The position has a definite term for which a commission is issued and a bond and an oath are required.
5. The position is one of dignity and importance." 59
Opinions ofthe Attorney General 154, 156 (1974).
See Board of Supervisors of Elections v. Attorney General, 246
Md. 417, 439 (1967). See also, e.g., 65 Opinions of the Attorney
General 285, 286 (1980). Of these tests, "the single most important characteristic of a public officer is that the 'public servant
exercise[s] in his own right some of the sovereign powers of government for the benefit of the public."' 68 Opinions of the Attorney General 358, 361 (1983) (quoting Dunca11, v. Koustenis, 260
Md. 98, 105 (1970)).

II
Conclusion
In summary, it is our opinion that a police officer-including a
University of Maryland police officer-holds an "office of profit,"
within the meaning of Article 35 of the Declaration of Rights.
Therefore, simultaneous service as a member of the General Assembly and a University of Maryland police officer is prohibited.
A police officer who takes the oath of office as a member of the
General Assembly thereby abandons the former position. 2

Members of the General Assembly unquestionably hold an "office of profit." 50 Opinions of the Attorney General 57, 63 (1965).
Therefore, the determinative question is whether an officer of the
University of Maryland Police Force also holds an office of
profit.1
Under 13-107(b)(l) of the Education Article, "[a] University
of Maryland police officer is and has all the powers of a peace and
police officer in this State." Applying the pertinent criteria, we
have no doubt that a police officer-including a University of
Maryland police officer-holds an office of profit.

J. JOSEPH CuRRAN, JR.,

A University of Maryland police officer receives a salary. Therefore, the office is "of
profit." S<'<' 60 Opinion cf/he Atiorncy General I2t, 124 (1!175).

Attorney General

JACK SCHWARTZ

Chief Counsel
Opinions and Advice

A police officer exercises a portion of the sovereignty of the

State through the authority to enforce the criminal laws. Moreover, an officer takes an oath of office and plainly performs important public duties that are continuing in nature. As the Court of
Special Appeals observed:
"[A] police officer has been held to be a public official
even though the officer does not generally serve for a
fixed term . . . . The police officer does, however, take
an oath, exercise on a daily, if not minute-to-minute basis, some of the powers of the State and exercises those

273

'"-"I!.~;; ..
'. -r

In light of this conclusion, we need not consider another constitutional restriction on

the holding of a second office by a member of the General Assembly. See Article III,
11. See generally 59 Opini,ms of the Attorney General 121 (1974).

#/JS/
J. JOSEPH CURRAN. JR.

ROBERT A. ZARNOCH

ATTORNEY GENERAL

ASSISTANTATTORNEY GENEF=l:AL
COUNSEL TO THE GENERALASSEMBLY

RALPH S. TYLER
NORMAN E. PARKER. JR.

RICHARD E. ISRAEL
KATHRYN M. ROWE
SANORA J. COHEN

DEPUTY ATiOANEYS GENERAL

ASSISTANTATTORNEYS GENERAL

THE ATTORNEY

OF

GENERAL

MARYLAND
OFFIGEOF

COUNSEL, TO THE GENERAL ASSEMBLY

1 04 LEGISLATIVE SERVICES 8UILD!NG
90 STATE C1RCLE
hNNAPOLIS. MARYLAND.21401-1991
8'.<>.LTIMORE & LOCAL CALLING AREA (410) 841-3889
WASHINGTON METROPOLITANAREA (301) 858-3889
-y FoR DEAF-ANNAPOLIS.

(410) 841-3814-0.C.

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March 7, 1995

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Li

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L.::J I..::'.)

The Honorable Barbara A. Hoffman, Chairman

Committee on Budget and Taxation
100 Senate Office Building
Annapolis, Maryland 21401-1991
Dear Senator Hoffman:
This is in response to your request for advice of counsel on the constitutionality
of Senate Bill 413, a bill which allows county school boards to charge students a fee for
a driver educationcourse. To the extent this bill authorizes the charging of a fee for a
driver education course offered during the. established school day, it would violate the
free public school requirement of the State Constitution.
Senate Bill 413 amends Section 7-412 of the Education Article, which provides that
each county board of education may offer instruction in the safe operation of a motor
vehicle to high school students who are at least 15 vears
old. Each board is to determine .
,
whether the course is an elective or a required course. Senate Bill 413 amends this
section of the law to provide that each county board may require students who are
enrolled in the course to pay a fee to cover the cost. The question has arisen. whether
there is a constitutional objection to charging such a fee.

Section 1 of Article VIII of the State Constitution requires the General Assembly
to establish and maintain "a thorough and efficient system of Free Public Schools." In
interpreting this provision, the Court of Appeals has said that it "means that schools must
be open to all without expense. 11 State of Maryland ex rel. Clark v. The Maryland

The Honorable Barbara A. Hoffman

March 7, 1995
Page 2
Institute for the Promotion of the Mechanic Arts, 87 Md. 643, 661 (1898). This office
has said that at the very least "anything directly related to a school's curriculum must be
free."
72 Opinions of the Att~rney General 262, 267 (1987).
Reflecting the
constitutional requirement, there is a statutory requirement that "There shall be
throughout this State a general system of free public schools." Md. Code, Education
Article, Sec. 1-201.
Citing both the constitution and statutory requirements for free public schools, this
office concluded that a county board's proposal to charge a fee to students for a driver
education course was contrary to these principles. 57 Opinions of the Attorney General
176-177 (1972). A copy of this opinionis enclosed. However, a subsequent opinion
observed that it could be implied from the 1972 Opinions that "fees for instruction outside
the school's courses would not necessarily be forbidden" 72 Opinions of the Attorney
General 262, 267 n. 5 (1987). The 1987 Opinion noted that the regulations of the State
Board of Education authorized "local boards to charge a fee for 'any driver education
program or portion of a program offered outside of the established school day or school
year.' COMAR 13A.04.03.05A-(1)."
Ibid. The present regulation forbids charging a
fee for a, driver education course offered during the regular school day. COMAR
13A.04.03.06.
Impliedly charging a fee for driver instruction after the regular school
day is permitted.
As a statute, Senate Bill 413 could, of course, qualify the statutory requirement for
free public schools.
However, such a statute is still subject to the constitutional
requirement for free public schools. In my judgment, authorizing a school board to
charge a fee for a driver education course which is offered during the established school
day is contrary to this constitutional requirement. However, it has been understood that
such a fee could be charged for driver instruction which is offered after the regular school
day.
Sincerely,

Richard E. Israel
Assistant Attorney General
REI:ss
Hoffman

enclosure

57 Opinions

ofi tl1e Attorney

Ge~eral

176

( 197 2)

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OFFICE OF THE ATTORNEY

Educational

GENERAL

Affairs Division

St. Paul Place, 19th Floor

Baltimore, Maryland 21202
(410) 576-6465

200

MEMORANDUM
July 20, 1995
TO:

Margaret Trader

FROM:

Val Cloutier

SUBJECT:

Driver Education Academic Credit

cL

This is to advise you that I have reviewed the overview

describing local school systems I options when implementing the
regulations on driver education .fees and academic credit.
I
believe that the three options that are listed are consistent with
the intent of the regulations as well as with the constitutional
provision on free public education.
Please call me if you have any questions or if I may be of
urther assistance in this matter.
VVC/tlw
c:

Owen Crabb

tlw\vvc\trader.mem

Maryland State Department of

,. :, , , ,., EDUCATION
200 Wr;rt.Buitimore Stree:
RtZ{rimo~, Maryland 21201

Nane :S.

Grasmick
Stw'1 Superintenden: of Schools

Phom: (410) 767-0JOO.

TTY/TDD (410) 333-6442

June 20, 1995

Driver Education Academic Credit
This overview describes how the following two portions of the current
Maryland State Department of Education driver education bylaw are put into
practice:Bylaw 13A.04.03.06-Fees: A fee may not be charged
for any part of a public school driver education program
offered during the regular school day.
Bylaw 13A.04.03.07-Academic Credit: Academic
credit may not be awarded if a fee is charged for a
public school driver education program offered during
the established school year.
Local school systems have three options when implementing these bylaw
provisions:
'When an approved driver education course is provided as a semester course
offering during the regular school year, academic credit may be awarded if no
student fee is charged.

When a student fee is charged for an approved driver education course offered
during the regular school year, no academic credit may be awarded.

When an approved driver education course is offered outside the regular

school year, a student fee may be charged and academic credit may be
awarded.

DEFEES.WPD

~'"'I'm

Maryland State Department of

.. " , , ... , EDUCATION

200 WL"~t Baltimor Stree:
Rn.frimartt, Marylalld 21201
Flu:mtt (410) 767-0100TJYITDD (410) 333-6442

NanC"J' S. Grasmick

Sime Superintendent nf Schools

June 20, 1995

Driver Education Academic Credit
This overview describes how the following two portions of the current
Maryland State Department of Education driver education bylaw are put into
practice:
Bylaw 13A.04.03.06-Fees:
A fee may not be charged
for any part of a public school driver education program
offered during the regular school day.
Bylaw 13A.04.03.07-Academic Credit: Academic
credit may not be awarded if a fee is charged for a
public school driver education program offered during
the established school year.
Local school systems have three options when implementing these bylaw
provisions:

When an approved driver education course is provided as a semester course

offering during the regular school year, academic credit may be awarded if no
student fee is charged.

When a student fee is charged for an approved driver education course offered
during the regular school year, no academic credit may be awarded.

When an approved driver education course is offered outside the regular

school year, a student fee may be charged and academic credit may be
awarded.

DEFEES:WPD

t!!I I,..,.

,.,.,.

l\T&.:

~r ,.
I.

j--'\

1 '

VALERIE V. CLOUTIER

J. Jos~PH CURRAN, JR.

Principal Counsel

Attorney General
NORMAN E. PARKER, JR.
RALPH
TYLER

s.

Deputy Attorneys General

STATE OF MARYLAND

OFFICEOFTHEATTORNEYGENERAL
MARYLAND STATE DEPARTMENT OF EDUCATION

TEl..EcoPIER No.

(410) 576-6880

February 22, 1996

The Honorable Thomas Mac Middleton

State Senator
Room 210
Senate Office Building
Annapolis, Maryland 21401-1191
Re:

Fees Charged by Local Boards of Education

Dear Senator Middleton:

Dr. Nancy S. Grasmick has asked me to respond to your inquiry regarding the imposition of
fees for certain public school services and activities. You indicate that the Charles County Delegation
is considering a legislative proposal that would allow for certain fees and charges under certain
conditions as set forth by the local board of education for activities that take place during the regular
school day and or items used during the regular school day. You also indicate that the fees must meet
the rational nexus test - there must be a rational connection between the fee charged and the service
provided; the fee must be only for non-academic type activities; the fees shall be specific and
equitable; and the fees' shall be uniform throughout the county. You ask whether there is any
constitutional problem with implementing the fees as proposed. As explained more fully below, your
question raises a substantial constitutional issue that has not yet been addressed by a Maryland court.
Article VIII, Section 1 of the Constitution ofMaryland establishes the mandate for free public
schools:
The General Assembly, at its First Session after the adoption of this
Constitution, shall by Law establish throughout the State a thorough
and efficient System of Free Public Schools; and shall provide by
taxation, or otherwise, for their maintenance.
In construing that provision in 1898, the Court of Appeals stated: "This means that the schools must
be open to all without expense." Clark v. Maryland Institute, 87 Md. 643 (1898). I am not aware,
however, of any Maryland case that addresses whether charging fees for certain school activities runs
200 Saint Paul Place Baltimore, Maryland 21202-2021
Telephone Numbers: (410) 576-6465 D.C. Metro: 470-7534
Telephone for Deaf: (410) 576-6372 D.C. Metro 565-0451

j
'

The Honorable Thomas Mac Middleton

February 22, 1996
Page 2
afoul of the constitutional mandate for a system of free public schools..
Courts around the country diverge widelyon whether and under what circumstances students
in public schools may be charged fees. In each case, the court analyzes the state's respective
constitutionalprovisionon the establishment of public schools and then applies an expansive or very
narrow definition of "free" to strike down or uphold the imposition of the fees at issue.1 For
example, in Hartzell v. Connell, 35 CaL3d 899, 679 P.2d 35 (Cal. 1984), the Supreme Court of
California struck down a fee plan adopted by the Santa Barbara school board finding that the fees
were constitutionallyinfirm. Under that plan, students would have been required to pay $25 for each
athletic team in which they wished to participate and $25 per category for any and all activities in
each of the following four categories: dramatic productions (plays, dance performances, and
musicals);vocal musicgroups (choir and madrigalgroups); instrumental groups (orchestra, marching
band, and related groups such as the drill team and flag twirlers); and cheerleading groups. Although
none of the affected activities yielded any credit toward graduation, each was connected to a credit
course. All parties agreed that the activities were "important educational experiences" for the
students.
The court noted that the California Constitution requires the legislature to "provide for a
system of common schoolsby which a free school shall be kept up and supported in each district... "
(Cal. Const., Art. IX, Section 5). The court then grappled with the question of whether extra
curricular activities fell within the free education guaranteed by Section 5 of the: California
Constitution. After determining that the free school guarantee extends to all activities which
constitute an "integralfundamentalpart of the elementaryand secondary education" or which amount
to "necessaryelementsof any school's activities,"the California court determined that the imposition
of fees for educational activities offered by public high school districts violated the free school
guarantee. It also determinedthat the constitutional defect in such fees "can neither be corrected by
providingwaivers to indigentstudents, nor justified by pleading financialhardship." 679 P.2d at 3944.
In Grarn~er v. Cascade County School District, 499 P.2d 780 (1972), the Supreme Court of
Montana establishedthe followingtest to be appliedto determine whether a fee might be charged for
a particular course or activity: Is a given course or activity reasonably related to a recognized
academicand educationalgoal of the particular school system? If it is, it constitutes part of the freepublic school systemcommandedby Article XI, Section 1 of the Montana Constitution and additional

A comprehensive listing of cases dealing with the legality of imposing fees for public
school activities is found in the annotation, "Validity of Exaction of Fees from Children Attending
Elementary or Secondary Public Schools," 41 ALR3d. 752 (1972 & 1995 Supp.).
1

"

-r

The Honorable Thomas Mac Middleton

February 22, 1996
Page 3

fees or charges cannot be levied, directly or indirectly, against the student or his parents.
reasonable fees or charges may be imposed. 499 P.2d at 786.

If it is not,

The Supreme Court of North Carolina took a more restrictive approach in interpreting Article
IX Section 2(1) of the North Carolina Constitution that requires "a general and uniform system of
free public schools. .. wherein equal opportunities shall be provided for all students." The court
determined that that provision meant that the State had an obligation of providing its citizens with:
A basic tuition free education. So long as public funds are used to
provide the physical plant and personnel salaries necessary for the
maintenance of a 'general and uniform' system of basic public
education, our public school system is 'free' -- that is without tuition
-- within the meaning of our State Constitution.
That the
administrative boards of certain school districts require those pupils
or their parents who are financially able to do so to furnish supplies
and materials for the personal use of such students does not violate
the mandate of Article IX, Section 2(1).
Nor do we perceive any constitutional impediment to the charging of
modest, reasonable fees by individual school boards to support the
purchase of supplementary supplies and materials for use by or on
behalf of students.
Sneed v. Greensboro City Board ofEdutation, 299 N.C. 609, 264 S.E.2d 106, 112-113 (1980)
( emphasis supplied). 3
In upholding fees charged for participation in interscholastic athletics, the Michigan Court of
Appeals found that interscholastic athletics are not a necessary element of any school's activity nor
are they an integral fundamental part of the education process rising to the level that would require
them to be provided at no cost. The court also found significant the fact that the school board had
a confidential process for waiving fees for economically disadvantaged students.
Attorney General
v East Jackson Public Schools, 143 Mich. App. 634, 372 N.W.2d 638, 639-640 (1985).

2Article

XI, Section 1 of the Montana Constitution provides: "It shall be the duty of the
legislative assembly of Montana to establish and maintain a general, uniform and thorough system
of public, free, common schools."
3The

Greensboro fee policy had a hardship provision that authorized the principal to
determine whether waiver or the charging of reduced fees was appropriate for a student suffering
from economic hardship. 264 S.E.2d at 113-114.

The Honorable Thomas Mac Middleton

February 22, 1996
Page 4

As I noted above, no Maryland court has interpreted the mandate for a thorough and efficient
system of free public schools as it applies to the imposition of fees for certain activities provided at
those schools. The Attorney General in a published opinion dealing with the imposition of fees by
public libraries, has stated the following with regard to the "free public schools" guarantee of the
Maryland Constitution:
But, whatever the outer limits of Maryland's 'free public schools'
guarantee, we are safe in saying that anything directly related to a
school's curriculum must be available to all without charge. To
borrow the North Dakota Supreme Court's formulation, whatever is
an 'integral part of the educational system' must be free. Cardiff v.
Bismarck Public Schools Dist., 263 N.W.2d 105, 113 (N.D. 1978).4
72 Op. Att'y Gen. 262, 267 ( 1987). If this definition were the litmus test for the constitutional free
school mandate, I believe the State Board regulations establishing program requirements for
elementary, middle, and high schools provide guidance on whether a particular activity is an integral
part of the educational system. Those regulations are found primarily in subtitles 3 through 8 of Title
13 A, Code of Maryland Regulations and cover a broad range of activities that fall within the regular
education program for the public schools in the State.
Assuming that the constitutional hurdle is passed, another question that surfaces is whether
a local board of education has authority unilaterally to impose fees for certain activities that take place
during the regular school day. Article 14 of the Maryland Declaration of Rights provides "[t]hat no
. aid, charge, tax, burthen, or fees ought to be rated for levied, under any pretense, without the consent
of the legislature." I believe that in order to comply with the constitutional provision, legislation
enacted by the General Assembly would be necessary to authorize local boards to collect fees for
certain activities. See 76 Op. Att'y Gen.
(1991) [Op. No. 91-033 (July 25, 1991)] for a
published opinion regarding the ability of the State police to charge fees for the Medivac transfer of
certain patients from one hospital to another.
In summary, it is my view that the imposition of fees for certain activities offered by the public
schools raises a substantial constitutional question that would very likely be challenged in court. At
a minimum General Assembly legislative authorization for the imposition of certain fees is necessary.
It would be prudent to use the state board regulations on the program requirements for the public
schools as guidance in determining whether certain activities are not an integral part of the education
system for which fees may be charged. Special provisions for economically disadvantaged students
should also be considered.
4In

Cardiff the Supreme Court ofNorth Dakota found that charging rental fees for use of
textbooks was unconstitutional.

CJ

The Honorable Thomas Mac Middleton

February 22, 1996
Page 5

I hope this information is helpful to you and apologize for the delay in getting it to you.
Sincerely,

Valerie V. Cloutier
Assistant Attorney General
Principal Counsel
Maryland State Department of Education
VVC/tlw

c: Nancy S. Grasmick
Robert Zarnoch
Jack Schwartz

tlwwvc'middleto.ltr

ADVICE OF COUNSEL
NOT OFFICIAL OPINION OF TiiE ATTORNEY GENERAL

./

Maryland State Department of

,.

,.1

EDUCATION
200

Na.n.C') S. Orasmic:k .

Stare Superintendent

nf Sclwol.s

w,. .~-, Baltimore

Street

Rn.ftimo~, Maryland 2120/

Phone (410) 767-0JOO.

ITY/TDD (410) 333-6442

June 20, 1995

Driver Education Academic Credit
This overview describes how the following two portions of the current
Maryland State Department of Education driver education bylaw are put into

practicer
Bylaw 13A.04.03.06-Fees:
A fee may not be charged
for any part of a public school driver education program
offered during the regular school day.
Bylaw 13A.04.03.07-Academic Credit: Academic
credit may not be awarded if a fee is charged for a
public school driver education program offered during
the established school year.
Local school systems have three options when implementing these bylaw
provisions:
'When an approved driver education course is provided as a semester course
offering during the regular school year, academic credit may be awarded if no
student fee is charged.

When a student fee is charged for an approved driver education course offered
during the regular school year, no academic credit may be awarded.

When an approved driver education course is offered outside the regular

school year, a student fee may be charged and academic credit may be
awarded.

DEFEES.WPD
'7

soo~

::>!1<13 .:10 lcl3CI

61.CZ CCC

onQ,

to:st

S6/ZZ/90

I .
J. JOSEPH CURRAN, JR.

VALERIE V. CLOUTIER
Principal Counsel

Attorney General
CARMEN M. SHEPARD
DONNA HILL STATON
Deputy Attorneys General

STATE~ OF MARYLAND

OFFICE OF THE ATTORNEY GENERAL

TELECOPIER

MARYLAND

No.

STATE DEPARTMENT

OF EDUCATION

(410) 576-6309

March 24, 2003

Lisa M. Myers
Governing Council Chairperson
Monocacy Valley Montessori School
2421 Monocacy Blvd.
Frederick, MD 21701
Re:

Program Fees for Full Day Kindergarten

Dear Ms. Myers:

Dr. Nancy S. Grasmick has asked me to respond to your recent inquiry regarding the
imposition of fees for attendance at a full-day kindergarten program at Monocacy Valley
Montessori School ("MVMS"), a Maryland public charter school under the purview of the
Frederick County Board of Education. You indicate that MVMS is considering imposing a fee
for attendance at a full-day kindergarten due to budgetary restrictions which prevent the school
from offering the full day program without a fee.
Article VIII, Section 1 of the Constitution of Maryland establishes the mandate for free
public schools:
The General Assembly, at its First Session after the adoption of
this Constitution, shall by Law establish throughout the State a
thorough and efficient System of Free Public Schools; and shall
provide by taxation, or otherwise, for their maintenance.
The Court of Appeals has construed this provision as requiring schools to "be open to all without
expense." Clark v. Maryland Institute, 87 Md. 643 (1898). I am not aware of any Maryland case
that addresses whether charging fees for certain school activities violates the constitutional
mandate for a system of free public schools.

200 Saint Paul Place + Baltimore, Maryland 21202-2021

Telephone Numbers: (410) 576-6465 + D.C. Metro: 470-7534
Telephone for Deaf: (410) 576-637.2

Lisa M. Myers
March 24, 2003
Page2

!'

However, courts throughout the country have differing views regarding the circumstances
in which public schools may charge students fees. For example, at one end of the spectrum is
Hartzell v. Connell, 679 P.2d 35, (Cal. 1984), in which the court issued a restrictive decision
against the imposition of school fees, noting that California's free school guarantee extends to all
activities which constitute an "integral fundamental part of the elementary and secondary
education" or which amount to "necessary elements of any school's activities." The California
court determined that curricular and extracurricular activities are educational in nature and
therefore fall within the free school guarantee, thus the school system could impose no fee for
student participation in those activities.
At the other extreme is Sneed v. Greensboro City Board of Education, 264 S.E.2d 106
(N.C. 1980), in which the court narrowly interpreted the free school guarantee in the North
Carolina Constitution to mean that schools must offer "a basic tuition-free education" in which
the "public funds are used to provide the physical plant and personnel salaries necessary for the
maintenance of a 'general and uniform'. system of basic public education." Thus, the North
Carolina court deemed it permissible for local boards to charge modest and reasonable fees to
support the purchase of supplementary supplies and material for required and elective courses.
Id. at 112-13.1
Given the divergence of court opinions across the country, it is hard to pinpoint how a
Maryland court would rule on this issue. I believe that one can extrapolate from the cases,
however, what would likely be minimally required. I further believe that the Maryland Attorney
General correctly articulated the point in 72 Op. Att'y Gen 262, 267 (1987), stating as follows:
[W]e cannot say whether Maryland courts would go as far as courts
in some states in categorizing the activities that must be offered
without charge. But, whatever the outer limits of Maryland's "free
public schools" guarantee, we are safe in saying that anything
directly related to a school's curriculum must be available to
all without charge. To borrow the North Dakota Supreme Court's
formulation, whatever is an "integral part of the educational
system" must be free. Cardiffv. Bismark Public School Dist., 263
N.W.2d 105, 113 (N.D. 1978).2 (Emphasis added).
For more discussion of these and other cases, see the attached 2/22/96 letter from
Assistant Attorney General Valerie V. Cloutier to the Honorable Thomas Mac Middleton.
1

The fact that fees may not be charged for any part of a public school driver education
program that is offered during the regular school day lends support to this notion. See COMAR
13A.04.03.06. See also 57 Op. Att'y Gen. 176 (1972).
2

LisaM. Myers
March 24, 2003
Page3

In Maryland, kindergarten attendance is mandatory. Md. Code Ann., Educ. 7-301(a)(3).

Attendance in a half-day kindergarten program satisfies this requirement at the present time.
Chapter 463, Laws of Maryland, 1991, 4. Thus, applying the analysis quoted above, it is clear
that kindergarten is a part of Maryland's system of free public schools as required by Article Vill,
1 of the Maryland Constitution. I believe therefore that charging for the full-day kindergarten
program offered at Monocacy would not be legally acceptable.
Rather, the fee-generating portion of the program would have to be carefully separated
from the regular, State mandated and State funded half-day kindergarten. For the State mandated
portion, no fees can be applied. For the fee-generating portion, the program cannot follow the
established kindergarten curriculum as a continuation of the State mandated half-day session.
Instead, it must be totally separate and distinct. One way to do this might be to offer a child care
or enrichment program for the fee-generating portion which is serviced by a private provider who
is unrelated to the required half-day program and who is not paid by State educational funds.3

When full-day kindergarten programs are required by State law in the 2007-08 school year,
however, I believe that no fees may be charged for attending full-day kindergarten at a Maryland
public school. See Md. Code Ann., Educ. 7-101 (amendment effective July 1, 2003).
I hope this information is responsive to your inquiry.
Sincerely,

ret . ~
Jackie C. La Fiandra
Assistant Attorney General
Maryland State Department of Education
Enclosures
c:
~cy S. Grasmick
y'Valerie V. Cloutier
wcs

#5413

ADVICE OF COUNSEL
NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL

See the attached 7 /22/92 letter from Assistant Attorney General Cloutier to

Superintendent Paul L. Vance.

VALER.IEV. CtotmER

J. JOSEPH CURRAN, JR.

Principal Counsel

Attorney General
NORMAN E. PARKER, JR.
RALPH
TYLER

s.

Deputy Attorneys General

STATE OF MARYLAl"ID
TEucoPtER.

OFFICEOFTHEATfORNEYGENERAL
MARYLAND STATE DEPARTMENT OF EDUCATION

No.

(410) 576-6880

February 22, 1996

The Honorable Thomas Mac Middleton

State Senator
Room 210
Senate Office Building
Annapolis, Maryland 21401-1191
Re:

Fees Charged by Local Boards of Education

Dear Senator Middleton:

Dr. Nancy S. Grasmick has asked me to respond to your inquiry regarding the imposition of
fees for certain public school services and activities. You indicate that the Charles County Delegation
is considering a legislative proposal that would allow for certain fees and charges under certain
conditions as set forth by the local board of education for activities that take place during the regular
school day and or items used during the regular school day. You also indicate that the fees must meet
the rational nexus test - there must be a rational connection between the fee charged and the service
provided; the fee must be only for non-academic type activities; the fees shall be specific and
equitable; and the fees shall be uniform throughout the county. You ask whether there is any
constitutional problem with implementing the fees as proposed. As explained more fully below, your
question raises a substantial constitutional issue that has not yet been addressed by a Maryland court.
Article VIII, Section 1 of the Constitution of Maryland establishes the mandate for free public
schools:
The General Assembly, at its First Session after the adoption ofthis
Constitution, shall by Law establish throughout the State a thorough
and efficient System of Free Public Schools; and shall provide by
taxation, or otherwise, for their maintenance.
In construing that provision in 1898, the Court of Appeals stated: "This means that the schools must
be open to all without expense." Clark v. Maryland Institute, 87 Md. 643 (1898). I am not aware,
however, of any Maryland case that addresses whether charging fees for certain school activities runs
200 Saint Paul Place Baltimore, Maryland 21202-2021
Telephone Numbers: (410) 576-6465 D.C. Metro: 470-7534
Telephone for Deaf: (410) 576-6372 + D.C. Metro 565-0451

The Honorable Thomas Mac Middleton

February 22. 1996
Page 2

afoul of the constitutional mandate for a system of free public schools.

Courts around the country diverge widely on whether and under what circumstances students
in public schools may be charged fees. In each case. the court analyzes the state's respective
constitutional provision on the establishment of public schools and then applies an expansive or very
narrow definition of "free" to strike down or uphold the imposition of the fees at issue.1 For
example, in Hartzell v. Connell, 35 Cal.3d 899, 679 P 2d 35 (Cal. 1984), the Supreme Court of
California struck down a fee plan adopted by the Santa Barbara school board finding that the fees
were constitutionally infirm. Lnder that plan. students would have been required to pay $25 for each
athletic team in which they wished to participate and $25 per category for any and all activities in
each of the following four categories: dramatic productions (plays, dance performances, and
musicals); vocal music groups (choir and madrigal groups); instrumental groups (orchestra, marching
band. and related groups such as the drill team and flag twirlers); and cheerleading groups. Although
none of the affected activities yielded any credit toward graduation, each was connected to a credit
course. All parties agreed that the activities were "important educational experiences" for the
students.
The court noted that the California Constitution requires the legislature to "provide for a
system of common schools by which a free school shall be kept up and supported in each district ... "
(Cal. Const., Art. IX, Section 5). The court then grappled with the question of whether extra
curricular activities fell within the free education guaranteed by Section 5 of the California
Constitution.
After determining that the free school guarantee extends to all activities 'which
constitute an "integral fundamental part of the elementary and secondary education" or which amount
to "necessary elements of any school's activities," the California court determined that the imposition
of fees for educational activities offered by public high school districts violated the free school
guarantee. It also determined that the constitutional defect in such fees "can neither be corrected by
providing waivers to indigent students, nor justified by pleading financial hardship." 679 P.2d at 3944.

In Granger v. Cascade County School District, 499 P.2d 780 (1972), the Supreme Court of
Montana established the following test to be applied to determine whether a fee might be charged for
a particular course or activity: Is a given course or activity reasonably related to a recognized
academic and educational goal of the particular school system? If it is, it constitutes part of the freepublic school system commanded by Article XI, Section 1 of the Montana Constitution and additional

A comprehensive listing of cases dealing with the legality of imposing fees for public
school activities is found in the annotation., "Validity of Exaction of Fees from Children Attending
Elementary or Secondary Public Schools," 41 A.LRJ d. 7 52 ( 1972 & 1995 Supp.).

The Honorable Thomas Mac Middleton

February 22, 1996
Page 3

fees or charges cannot be levied, directly or indirectly, against the student or his parents. 2 If it is not,
reasonable fees or charges may be imposed. 499 P.2d at 786.
The Supreme Court of North Carolina took a more restrictive approach in interpreting Article
IX Section 2( 1) of the North Carolina Constitution that requires "a general and uniform system of
free public schools ... wherein equal opportunities shall be provided for all students." The court
determined that that provision meant that the State had an obligation of providing its citizens with:
A basic tuition free education. So long as public funds are used to
provide the physical plant and personnel salaries necessary for the
maintenance of a 'general and uniform' system of basic public
education, our public school system is 'free' -- that is without tuition
-- within the meaning of our State Constitution.
That the
administrative boards of certain school districts require those pupils
or their parents who are financially able to do so to furnish supplies
and materials for the personal use of such students does not violate
the mandate of Article IX, Section 2( l ).
Nor do we perceive any constitutional impediment to the charging of
modest, reasonable fees by individual school boards to support the
purchase of supplementary supplies and materials for use by or on
behalf of students.
Sneed v Greensboro Citv Board of Education, 299 N.C. 609, 264 S.E2d 106, 112-113 (1980)
( emphasis supplied). 3
In upholding fees charged for participation in interscholastic athletics, the Michigan Court of
Appeals found that interscholastic athletics are not a necessary element of any school's activity nor
are they an integral fundamental part of the education process rising to the level that would require
them to be provided at no cost. The court also found significant the fact that the school board had
a confidential process for waiving fees for economically disadvantaged students.
Attorney General
v. East Jackson Public Schools, 143 J\1ich. App. 634, 372 N.W.2d 638, 639-640 (1985).

.A.rticle XI, Section 1 of the Montana Constitution provides: "It shall be the duty of the
legislative assembly of Montana to establish and maintain a general, uniform and thorough system
of public, free, common schools."
2

"The Greensboro fee policy had a hardship provision that authorized the principal to
determine whether waiver or the charging of reduced fees was appropriate for a student suffering
from economic hardship. 264 S.E.2d at 113-114.

JI ..
The Honorable Thomas Mac Middleton
February 22, 1996
Page 4

As I noted above. no Maryland court has interpreted the mandate for a thorough and efficient
system of free public schools as it applies to the imposition of fees for certain activities provided at
those schools. The Attorney General in a published opinion dealing with the imposition of fees by
public libraries, has stated the following with regard to the "free public schools" guarantee of the
Maryland Constitution:
But. whatever the outer limits of Maryland's 'free public schools'
guarantee, we are safe in saying that anything directly related to a
school's curriculum must be available to all without charge. To
borrow the North Dakota Supreme Court's formulation, whatever is
an integral part of the educational system' must be free. Cardiff v.
Bismarck Public Schools Dist, 263 )i'.W.2d 105, 113 (N.D. 1978).4
72 Op. Art'y Gen. 262, 267 ( 1987). If this definition were the litmus test for the constitutional free
school mandate, I believe the State Board regulations establishing program requirements for
elementary. middle. and high schools provide guidance on whether a particular activity is an integral
part of the educational system. Those regulations are found primarily in subtitles 3 through 8 of Title
13:\, Code of Maryland Regulations and cover a broad range of activities that fall within the regular
education program for the public schools in the State.
Assuming that the constitutional hurdle is passed, another question that surfaces is whether
a local board of education has authority unilaterally to impose fees for certain activities that take place
during the regular school day. Article 14 of the Maryland Declaration of Rights provides "[t]hat no
aid, charge, tax, burthen, or fees ought to be rated for levied, under any pretense, without the consent
of the legislature .' , I believe that in order to comply with the constitutional provision, legislation
enacted by the General Assembly would be necessary to authorize local boards to collect fees for
certain activities. ~ 76 Op. Arr'y Gen.
(1991) [Op. No. 91-033 (July 25, 1991)] for a
published opinion regarding the ability of the State police to charge fees for the Medivac transfer of
certain patients from one hospital to another.
In summary, it is my view that the imposition of fees for certain activities offered by the public
schools raises a substantial constitutional question that would very likely be challenged in court. At
a minimum General Assembly legislative authorization for the imposition of certain fees is necessary.
It would be prudent to use the state board regulations on the program requirements for the public
schools as guidance in determining whether certain activities are not an integral part of the education
system for which fees may be charged. Special provisions for economically disadvantaged students
should also be considered.
In Cardiff the Supreme Court of North Dakota found that charging rental fees for use of
textbooks was unconstitutional.
4

--~--- '. - . ~ ~-. -.,..-,,---.:; ., . . . -~;;;__~;

{.'.}

The Honorable Thomas Mac Middleton

February 22, 1996
Page 5

I hope this information is helpful to you and apologize for the delay in getting it to you.
Sincerely,
I

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Valerie V. Cloutier
Assistant Attorney General
Principal Counsel
Maryland State Department of Education
vvc.u
c: Nancy S. Grasmick
Robert Zamoch
Jack Schwartz

tlwv,vc'rniddleto. ltr

ADVICE OF COUNSEL
NOT OFFICIAL OPINION OF THE AITaRNEY GENERAL

"

.~

J. JOSEPH CURRAN, JR.

JOHN K. ANDERSON

ATTORNEY GENERAL

CHIEF COUNSEL FOR

EDUCATIONAi. AFFAIRS

I
RALPH S. TYLER
.JEPUTY ATTORNEYS GENERAL

OFFICE OF THE ATTORNEY GENERAL

EDUCATIONAL AFFAIRS DIVISION

200 SAINT PAUL PLACE
BALTIMORE, MARYLAND 21202-2019

WRITER'S DIRECT DIAL NO.

(410) 576-6450
D.C. Metro 470- 7534
TTY for Deaf

Balto. Area 576-6372

D.C. Metro 565-0451

Telecopier No. (410) 576-6437

July 22, 1992

B~ FAX AND MAIL

Dr. Paul L. Vance
Superintendent, Montgomery County
Public Schools
850 Hungerford Drive
Rockville, Maryland 20850
RE:

Tuition for Non-Mandated Half-Day Kindergarten

Dear Dr. Vance:

This is a follow-up to my conversation with you and Zvi
Greismann on the legality of offering the second-halfof an allday kindergarten program in 27 schools on a fee-paid basis. As I
indicated to you both, although the Attorney General has
undertaken a program of assistance to local governmental agencies
in the resolution of legal matters involving substantial issues
of State law, we have found that certain guidelines are necessary
to enable us to provide this assistance within the resources of
this office. These guidelines are set out in Part II F of the
attached policy document.
As you will note, we ask that an opinion request from a
local board of education be accompanied by a written analysis of
the local board attorney's own research and professional opinion
on the matter. I am sure you can understand our desire.not to
duplicate work that may have already been done nor to do
research, writing, and counseling that, at least in the first
instance, is properly within the jurisdiction of another. I am
sure that you understand the need for these guidelines and that
you will be able to comply with them in pursuing a request for an
official opinion from the Attorney General.

Dr. Paul L. Vance

July 22, 1992
Page 2
_
As we also discussed, I concur in the advice given by
Assistant Attorney General Kathryn M. Rowe to the Honorable Brian
E. Frosh in a letter dated January 14, 1992. In that letter, Ms.
Rowe determined that no legislation is necessary to allow a
county to charge for extended kindergarten programs. However,
she advised that such programs must be carefully separated from
the regular, State-funded kindergarten programs in order to avoid
lega,l and ccns t Lt.ut.Lona I problems.

In reviewing the material that you sent to Dr. Grasmick

describing the extended kindergarten program that would be paid
for on a fee basis in Montgomery County, I am concerned about one
aspect as it relates to the advice given by Assistant Attorney
General Rowe. That pertains to the discussion on Page 6 of your
memorandum to members of the Montgomery County Board of Education
where you indicate that the instructional program for the secondhalf of the day will be the same as that of an all-day
kindergarten program in accordance with MCPS policies,
regulations, and established kindergarten curriculum documents.
My concern stems from the Maryland constitutional
mandate of a thorough and efficient system of free.public
schools. To the extent the fee-generating portion of your
kindergarten program follows an established kindergarten
curriculum as a continuation of the half-day session mandated by
law, it would seem that the Montgomery County School System has
as a matter of policy made all-day kindergarten a regular part of
the school program. Children whose parents are unable to pay or
who choose not to pay for the second-half of the kindergarten
session will be negatively affected by their absence from the fee
session when they return the following day to the State mandated
portion of the kindergarten. I do not believe that the extension
of kindergarten in this fashion is consistent with the advice
given by our office that an extended kindergarten program "must
be carefully separated from the regular, state-funded
kindergarten program."
If, in fact, the Montgomery County School System has
made kindergarten an all-day program, but charges parents for
one-half of that program, then I believe the tuition-generating
portion would be in violation of the State constitutional mandate
of a system of #free public schools. In order to avoid this
problem, I suggest that the tuition-portion be programmatically.
separate from the mandated half-day kindergarten program. One
way to achieve this may be by contracting out the fee-portion to
a private provider for an unrelated half-day program.

..
'Dr. Paul L. Vance
July 22, 1992
Page 3
I hope that this clarifies our conversation.
call me if you have any questions.

Please

Sincerely,
~~~

vaierie v. Cloutier
Assistant Attorney General
Principal Counsel
Maryland State Department
of Education
vvc119:py
cc: Dr. Nancy s. Grasmick
Dr. Bonnie s. Copeland
Zvi Greismann, Esq.

!'

J. JOSEPH CURRAN, JR.

ROBERT A. ZARNOCH
ASSISTANT A TI'ORNEY GENERAt. .
COUNSEL TQ THE GENERAL ASSEMBLY

..l,. TTOR NEY GENERAL

RALPHS.

TYLER
RICHARD E. ISRAEL

OEPUTY A T'TORNEYGENERAL

KATHRYN M. ROWE
ASSISTANT A TTOANEYS GENERAL

THE

ATTORNEY

OF

GENERAL

MARYLAND
OFFICE OF

COUNSEL TO THE GENERAL ASSEMBLY

1

04

LEGISLATIVE SERVICES BUILDING

90
ANNAPOLIS,

STATE CIRCLE

MARYLAND

8AL TIMORE & LOCAL CALLING

WASHINGTON

TTY FOR

DEAF -ANNAPOLIS.

METROPOLITAN

21 401 -1991
AREA ( 4 10)

84 1 -3889

(301) 858-3889

AREA

(410) 841-3814 -

D.C.

METRO,

(301) 858-381~~;-~-

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January

14, 1992

(':::~

The Honorable Brian E. Frosh, Chairman

Montgomery County Delegation
220 House Office Building
Annapolis,
l\1aryland
21401-1991
Dear Delegate

Frosh:

You have asked for advice concerning

the ability
of a county
to
charge
for
the
second
half
of
all-day
kindergarten.
Specifically,
you have asked whether
such charges
would raise
constitutional
problems
and
whether
legislation
would
be
necessary
to permit
such charges
to be imposed.
In my view, no
legislation
is necessary
to allow
the counties
to charge
for
ext ended k ind erg a r ten programs .
However , such programs mus t be
carefully
separated
from the regular,
State-funded
kindergarten
programs in order to avoid legal and constitutional
problems.
l\1aryland

Constitution,

Article

VIII,

1 provides:

"The General Assembly ... shall by Law establish throughout the State a
thorough and efficient System of Free Public Schools, and shall provide by
taxation, or otherwise, for their maintenance."
Pursuant

to this

provision,

Education

Article,

7-101 provides:

"(a) All individuals who are 5 years old or older and under 21 shall be
admitted free of charge to the public schools of this State.
(b) There shall be full kindergarten programs in each county of this
State."

The Honorable
Page 2

'

Brian E. Frosh

The requirement that kindergarten programs be provided has been

in effect since the early 1970's.
Starting July 1, 1992,
kindergarten
attendance will be mandatory.
See, ED 7-301.
However, the law provides that:
~"[A]ttendance in a half-day kindergarten program satisfies the requirement
of this Act and nothing in this Act may be. construed to require a county to
provide full-day kindergarten." Chapter 463, Laws of Maryland, 1991,
4

..!!

Taken together, these laws make clear that kindergarten is a

part of the system of free public schools maintained by the State
pursuant to Article VIII, 1 of the Constitution.
Thus, if a
county were simply to allow children to attend both halves of the
day of kindergarten,
it could not impose a charge for this
service. However, it is my view that a county may offer extended
kindergarten or child care as a separate service and charge for
that service.
In doing so, the program should be carefuily
structured to avoid the appearance that State educational funds
are being used to finance the program. For example, if teachers
from the regular kindergarten program are employed, they should
be pa i d f or the i r work f r om f u n d s s e par at e f r om tho s e us e d to
finance the schools.
I hope that this is responsive

to your inquiry.

Sincerely,

/(cit:,~ j;CL_,

Kathryn M/ Wowe
Assistant Attorney

General

KlvlR:maa
cc:

Valerie Cloutier

1 State aid to education is also based on half-day kindergarten enrollment. ED 5202(a)(7)(ii).

.... "'

(_)