Public Funds for Private Fun

How to Go to Disneyland on the Public Dime

On July 24, the Los Angeles Times ran an article that detailed how home schools that operate as charter schools use taxpayer dollars to pay for trips to places like Disneyland, Medieval Times, and SeaWorld as well as private horseback riding lessons and other extracurricular activities.  Public funds have even been used to purchase family memberships at the San Diego Zoo.  Some charter schools provide home school families as much as $3,200 per year for these purposes.  You can read the article here, and Diane Ravitch also covered it here.

Some expenses, like ice skating classes, or acting classes (!) qualify as physical education, while trips to Disneyland or SeaWorld are considered field trips.  Generally, home school families can use public funds to make purchases from a list of charter school-approved materials and activities.  Vendors typically must have their products and services approved by the charter school to have them on the list.  In this sense, the public funds are like script that can only be spent at the “company store.” 

At first glance this would seem to be a clear violation of the prohibition against making gifts of public funds that is contained in Article XVI, Section 6 of the California Constitution, which prohibits “the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever…”  This prohibition applies to all units of government in California, including school districts.

However, the courts have determined that a “thing of value” may be provided to an individual if the private benefit is incidental to a public purpose.  As far back as 1940, the court, in County of Alameda v. Janssen, cited several prior court cases in stating that, “It is well settled that, in determining whether an appropriation of public funds or property is to be considered a gift, the primary question is whether the funds are to be used for a ‘public’ or a ‘private’ purpose.  If they are for a ‘public purpose,’ they are not a gift within the meaning of section 31 of article IV [now Section 6 of Article XVI].”  Presumably, home charter schools have determined that the private benefit (in the form of personal entertainment) of a ride through Pirates of the Caribbean is incidental to the value the public receives from it.  Sure, that may sound ridiculous, but how else would it be legal?

The same court also ruled that, “The determination of what constitutes a public purpose is primarily a matter for legislative discretion.”  The term “legislative” refers to the action of the legislative body of any government entity (including school district governing boards) and not just the state legislature.  In other words, the courts have granted substantial discretion to legislative bodies (including school district governing boards) in determining whether a private benefit is incidental to a public purpose.

The California Education Code is silent on this issue.  The California Department of Education, however, specifically prohibits the use of public funds for the cost of admission for students or staff to amusement/theme parks or other similar social events, but that prohibition applies only to the California Partnership Academies.

The ruling that “the determination of what constitutes a public purpose is primarily a matter for legislative discretion” has, in every case, been made with reference to a publicly-elected legislative body.  Charter school governing boards, by contrast, are non-elected and self-appointed private bodies with jurisdiction over public funds.  The question of whether this same deference should be granted to charter school governing bodies, therefore, may be ripe for a court challenge.  

But legal action would not be necessary if the Legislature exercised its authority to prohibit—or at least reduce—the inappropriate use of public funds by home charter schools.  The courts have made it clear that the Legislature has the authority to strictly prohibit the use of public funds for specific out-of-school activities, such as admission to amusement parks, etc.  

Alternatively, if the Legislature prefers to allow for a case-by-case approach, it could require the governing body of a charter school’s authorizer to approve each such expenditure at a public meeting, as a non-consent action item.  At least this would bring a publicly-elected legislative body back into the decision-making process and provide for public scrutiny.  In any event, the longer these questionable expenditures are allowed to continue and as the number of families benefiting from this public largesse continues, the harder it will be politically to stop or curtail this practice. 

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