Constitutionality of Textbook Rental Fee

December 4, 2005

Andrea Neal column for Aug. 17 and thereafter
740 words

INDIANAPOLIS — Are books essential to a child’s education? The answer could spell the end to Indiana’s textbook rental fee.

Each year about this time, parents whip out the checkbook to cover what might be the most unpopular fee in Indiana. The amount due can range from $50 to $150 or higher, depending on a student’s grade level and course requirements.

For more than a decade, the Indiana General Assembly has discussed eliminating the fee, but been deterred by budgetary constraints. It would cost more than $75 million to fund all textbooks of K-12 students.

The courts may beat lawmakers to the punch. A case on appeal to the Indiana Supreme Court raises the question: Do such fees violate the state constitution’s guarantee of free tuition?

To paraphrase a former president, it depends on what the meaning of tuition is.

Indiana’s Constitution of 1851 guarantees "a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all."

Tuition, according to the New Oxford American Dictionary, is "a sum of money charged for teaching or instruction." 19th Century dictionaries define tuition as the teaching or instruction itself.

Under current law, only students eligible for free or reduced price lunch get their books free, with the state reimbursing school systems to the tune of $17 million a year. The Indiana Civil Liberties Union believes books should be free for all.

"Our view is that charging those fees does violate Article 8," says ICLU Executive Director Fran Quigley. "The clear intent of the framers was to prevent a cash register barrier from being erected between Hoosier children and public education."

The case that could decide the matter doesn’t concern books, but a $20 student activity fee imposed in the 2003-03 school year by the Evansville-Vanderburgh School Corp.

Faced with a big budget deficit and wanting to avoid cuts in programs and staff, the district imposed the fee on all students in kindergarten through twelfth grade. It was to help pay for variety of things, including counselors, nurses, extra-curricular activities and athletic programs.

As soon as the fee took effect, families represented by the ICLU went to court, arguing that it violated the Constitution’s free tuition clause. A Vanderburgh Superior Court dismissed the bulk of their argument, but said students in the free/reduced price lunch program shouldn’t have to pay the fee.

On appeal, a panel of the Indiana Court of Appeals said no family should. "Although the fee being charged by the EVSC is currently ‘only’ 20 dollars, nothing in the logic of the (school district’s) argument would prohibit public schools from charging a student a $200 fee, or for that matter even a $2,000 fee. This logic would permit our system of public schools to be priced out of reach in order to avoid raising local taxes."

The court added, "It is absurd to suggest that public schools may not charge for the services of a teacher, but may charge students a fee for things as essential to teaching and instruction as the services of the teacher, such as school buildings, maintenance, heating and cooling, electricity, or textbooks."

In a similar case in June 2001, Attorney General Stephen Carter concluded that a Health Services Fee imposed in 1995 by the Eagle-Union Community School Corp. to pay for nurses was unconstitutional. Carter’s opinion came at the request of a state legislator and carried no legal force.

The Vanderburgh school corporation has asked the Indiana Supreme Court to review the ruling in the activity fee case (Nagy v. Evansville-Vanderburgh School Corp.). The petition is pending. The Indiana Department of Education has taken no position in that case.

Even where textbooks are "free" — in other words, paid by taxpayers — there’s a downside. When times are tough, school corporations may require students to share books or continue to use torn and tattered books that should have been replaced long ago.

As of 2000, Indiana was one of only 10 states with a rental fee, according to the DOE. Most states use a combination of state and local funds to pay for textbooks.

Ask most parents and they’ll say books are an essential ingredient in education and they shouldn’t have to pay for them. This time next year, they may not have to.

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