Below is the email that Ron sent to Dr. Moniuszko and Ms. Quinn on Monday, January 16, 2012:
This is to provide you and the upcoming working group with a draft of booster guidelines and reporting requirements to be considered as an alternative to the current proposal to change portions of FCPS Regulation 5810.7. The attached draft booster guidelines and reporting requirements are designed to provide better transparency and financial accountability with respect to sponsorship of school activities by booster organizations, including band booster organizations. Drafts were circulated to all band booster organizations and to other booster organizations within the county. That attached draft is the result of insightful and meaningful input from many of those organizations.
As far as I am aware, there is no state-level mandate requiring that any student activity that occurs during the school day, is required or recommended for an FCPS class or otherwise relates to the curriculum cannot be a “booster sponsored” activity or that any such fees associated with such student activity must be receipted into the school activity fund. The relevant Virginia Department of Education regulation at 8 VAC 20-240-10 states that all funds derived from extracurricular activities and “from any and all activities of the school involving personnel, students or property” are classified as “school activity funds” but that the local school boards “shall be responsible for the administration” of this regulation and that they “may determine which funds in any school may be excluded from those subject to” the VA regulations.
While it may be the intent of the proposed change to FCPS Regulation 5810.7 to make clear that any student activity that occurs during the school day, is required or recommended for an FCPS class or otherwise relates to the curriculum must be a “school sponsored” activity and cannot be a “booster sponsored” activity, such result is not mandated by state-level statute or regulation. Therefore, the proposed change to FCPS Regulation 5810.7 is a policy choice and is not dictated by any state-wide law or regulation. As with any policy matter, it should be based on consideration of reasonable means to achieve the desired policy goal. Here that desired policy goal is ensuring better transparency and financial accountability of funds associated with school activities. The attached draft booster guidelines/reporting requirements would serve the purpose of transparency and accountability more effectively, while not adding undue burden to the schools or booster organizations, than the proposed change to FCPS Regulation 5810.7.
In addition, the proposed change to FCPS Regulation 5810.7 is legally questionable to the extent FCPS implements FCPS fees for required school activities. This is especially of concern with respect to any FCPS fees associated with marching band programs at the high schools. The applicable VA statute (VA Code Section 22.1-6 “Permitted Fees and Charges”) states that except as provided in the VA Code or as permitted by the VA Board of Education regulations, no fees or charges may be levied on any pupil by any school board. This statute is implemented in the VA Board of Education regulations at 8 VAC 20-370-10 “Fees and Charges”. This VA regulation states that “no fees or charges as noted below may be levied on any pupil by any school board unless authorized by the VA Board of Education”. The regulation allows the following fees and charges for: (1) class dues; (2) voluntary student activities; (3) night school classes; (4) postgraduate classes; (5) summer school; (6) rental textbooks; (7) musical instruments used in regularly scheduled instructional classes; and, (8) library fees. The regulation also adds that it shall not be construed to prohibit the school board “from making supplies, services, or materials available to pupils at cost” and that “it is not a violation to make a charge for a field trip or an educational related program that is not a required activity.”
This VA statute and regulation allows for certain fees and charges associated with voluntary student activities that are not a required activity. The $100 athletic fee instituted last year by FCPS falls in the category of a fee associated with voluntary student activities. Marching band is a required student activity not a voluntary student activity. The FCPS curriculum for “Advanced Band (923415)” states that marching band is included in the course and that students must meet both the school day and after-school participation requirements to receive credit for the course. The FCPS curriculum also provides the option for each high school to make marching band a required student activity for those students in the Beginning and Intermediate Band courses. In this regard, the FCPS curriculum states that for “Beginning Band (923215)” and “Intermediate Band (923315)” marching band may be included in those courses and that students must meet both the school day and after-school participation requirements to receive credit for the course.
Since marching band is a required activity for all students in the Advance Band courses within the county and may also be a required activity, if a high school so chooses, for those students in the Beginning and Intermediate Band courses, marching band cannot be considered as a voluntary student activity. Marching band is a required co-curricular activity.
Further, the applicable VA Board of Education regulation at 8 VAC 20-370-10 allows for only one specific fee applicable to band courses – a fee for musical instruments used in regularly scheduled instructional classes. No other type of fee for band courses is specified or contemplated. An FCPS fee for marching band is not allowed.
Last year the VA Attorney General struck down an attempt by FCPS to implement a mandatory fee for taking required AP placement examinations. The VA Attorney General’s opinion dated January 28, 2011 held that because the AP placement examination is the required end-of-course examination, it cannot reasonably be viewed as a service or program for which a fee may be levied within the meaning of the VA statute and regulation since it is a required activity. There is no material distinction between the attempted FCPS fee for required AP placement examinations and an FCPS fee for required participation in marching band. Both are legally objectionable and not allowed.
This legal impediment does not exist with respect to fees assessed by booster groups for “booster sponsored” activities, even a student activity that occurs during the school day, is required or recommended for an FCPS class or otherwise relates to the curriculum. Such booster fees are not FCPS fees and are not assessed by FCPS or enforced by FCPS. With respect to co-curricular student activities that are a required part of the FCPS curriculum (such as marching band), sponsorship of such activity by a booster organization does not provide the booster organization with the ability to deny student participation in such activity.
For this reason, the attached draft guidelines/reporting requirements make clear that no student may be denied participation in a booster sponsored activity if that activity is a required part of the FCPS curriculum.
For all these reasons, the attached draft booster guidelines/reporting requirements should be considered as a more effective and legally sound alternative than the proposed change to FCPS Regulation 5810.7.
I look forward to the start of the working group and working together to achieve the best result.
Ron Hutchinson
Treasurer
McLean High School Band Parents Association
