Can a Virginia public school district charge students for the Advanced Placement exam when the school requires the exam to complete the AP course?

Plain-English summary

Senator Marsden asked the AG about a Fairfax County Public Schools practice. FCPS offered students the chance to enroll in Advanced Placement (AP) classes. The College Board, a nonprofit that administers the AP Examination, charges a standard fee of $87. FCPS required students enrolled in AP classes to take the AP Examination as the end-of-course testing, and charged students $75 per AP course to cover the exam.

The AG concluded this was not legal. A Virginia public school cannot charge a mandatory fee for a required exam.

The reasoning starts with the Virginia Constitution, which directs the General Assembly to "provide for a system of free public elementary and secondary schools." The General Assembly responded by directing that "[t]he public schools in each school division shall be free to each person of school age who resides within the school division." The legislature further directed that local school boards may not levy any fee on pupils except as provided in Title 22.1 or by regulation of the State Board of Education.

The AG worked through possible authority for the fee:

• No direct authority. No statute authorizes school boards to impose fees for tests.
• FCPS argued § 22.1-253.13:1(D)(10) authorizes the fee. That section requires school boards to implement a plan to notify students and parents about AP and dual enrollment opportunities, qualifications for enrollment, and the availability of financial assistance to low-income students for AP and International Baccalaureate exams. The AG read this as a notification requirement, not a fee authorization. The mention of financial assistance for low-income students for AP exams refers to standalone AP exam scenarios (a low-income student can take an AP exam without taking the AP course), not to mandatory fees imposed by the school.
• Board of Education regulations. The Board of Education's regulations prohibit fees not authorized by the Board. The express purposes for which fees may be charged do not include examinations or classes (other than summer school and postgraduate courses). The regulation also permits charging cost for supplies, services, or materials and for field trips or educational-related programs that are not required activities. The AP exam is a required activity for AP-enrolled students, so it cannot reasonably be treated as a non-required service.

The conclusion: in the absence of express authority to charge for AP exams, combined with the general constitutional and statutory principle that public education must be free except in delineated circumstances, the FCPS practice is impermissible.

A note on what is permitted: A school could not require AP students to take the AP exam and charge them for it. It could, however, offer AP courses without requiring the AP exam, leave the AP exam as an optional outside-the-school activity, and let students who choose to take the AP exam pay the College Board directly. The opinion's prohibition is on the mandatory fee for the required exam.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The fee-prohibition framework in Title 22.1 and 8 VAC 20-370-10 has remained substantially in place, but specific exceptions may have been added by the legislature or the Board of Education. Anyone evaluating a current school fee should consult both the current statute and the current regulation.

Common questions

Why does it matter that the AP exam is required by the school rather than optional?
Because the regulation permits fees for activities that are "not required." A required end-of-course exam is by definition a required activity. The school can't relabel a required test as an optional service to dodge the fee prohibition.

Could a school district just stop requiring the AP exam?
Yes. Then the exam becomes an outside activity and students would deal with the College Board directly. The fee prohibition would no longer apply to the district. But the district would lose the "uses the AP exam as the end-of-course test" model.

What about financial assistance for low-income students?
Section 22.1-253.13:1(D)(10) actually requires school boards to inform students and parents about the availability of financial assistance for AP and IB exams. The financial-assistance angle is built into the statute.

Are there any school fees that are permitted?
Yes, several. The regulation allows fees for summer school or postgraduate courses, for supplies/services/materials at cost, for field trips, and for educational programs that are not required. Title 22.1 has other specific authorizations. The default is no fees; specific exceptions are allowed.

What's the remedy if a school charges an impermissible fee?
The opinion doesn't address remedies. Parents could complain to the school board, raise the issue with the Virginia Department of Education, or pursue litigation. The AG's analysis provides legal ammunition for any of those approaches.

Background and statutory framework

The free-education guarantee:

• The Virginia Constitution directs the General Assembly to provide a system of free public elementary and secondary schools.
• The General Assembly directed that public schools shall be free to school-age residents.
• School boards may not levy fees on pupils except as provided in Title 22.1 or by Board of Education regulation.

The fee regulation:

• The Board of Education's regulations prohibit fees not authorized by the Board. They allow fees for summer school or postgraduate courses, supplies/services/materials at cost, and field trips or educational-related programs that are not required activities.

The notification statute:

• § 22.1-253.13:1(D)(10). School boards must implement a plan to notify students/parents about AP and dual enrollment opportunities and financial assistance for low-income students to take AP and IB exams. NOT a fee authorization, per the AG.

The opinion adds that its conclusion is consistent with prior opinions of the Office, without identifying those opinions by number in the reproduced text.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 22.1-253.13:1(D)(10)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/10-121-Marsden.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

January 28, 2011

The Honorable David W. Marsden
Member, Senate of Virginia
Post Office Box 10889
Burke, Virginia 22009

Dear Senator Marsden:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a local school board may impose a mandatory charge for students taking advanced placement courses.

Response

It is my opinion that a local school board cannot impose a mandatory fee on students taking advanced placement courses for the required taking of the Advanced Placement Examination.

Background

You relate that Fairfax County Public Schools ("FCPS") offers students the opportunity to enroll in advanced placement classes. Such courses are commonly offered in high schools, and prepare students to take the nationally-administered Advanced Placement Examination. Many colleges permit students achieving sufficiently high scores on the Advanced Placement Examination to satisfy certain curriculum requirements toward their college degrees.

The FCPS requires that students enrolled in advanced placement classes take the Advanced Placement Examination as the end-of-course testing. The College Board, the not-for-profit organization that administers the examination, charges a fee to take the examination. At present the standard fee is $87, although the actual fee may be higher or lower, as where the examination is given outside the United States, or a student demonstrates a financial need. FCPS charges $75 to students taking the advanced placement course to cover the cost of the Advanced Placement Examination.

Applicable Law and Discussion

The Constitution of Virginia directs the General Assembly to "provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth." In response, the General Assembly has directed that "[t]he public schools in each school division shall be free to each person of school age who resides within the school division." The legislature further has directed that local school boards are not permitted to levy fees or charge any pupil, except as provided in Title 22.1, or by regulation of the State Board of Education.

No statute authorizes a local school board to impose fees for the taking of tests. According to materials submitted with your request, FCPS asserts that § 22.1-253.13:1(D)(10) authorizes the fees it imposes. That section requires local school boards to implement "[a] plan to notify students and their parents of the availability of dual enrollment and advanced placement classes, the International Baccalaureate Program, and Academic Year Governor's School Programs, the qualifications for enrolling in such classes and programs, and the availability of financial assistance to low-income and needy students to take the advanced placement and International Baccalaureate examinations." It is my opinion that this statute does not provide a local school board with the authority to impose a fee for an advanced placement course or examination, but simply directs the board to provide information on financial assistance available to those wishing to take such examinations.

I note that it is not necessary to take an advanced placement course to take an advanced placement test. Therefore, a logical reading of this section is that a low income student who did not take the AP course can receive financial assistance for taking an AP test that is not part of a class.

The regulations of the Board of Education prohibit fees or charges unless authorized by the Board. The express purposes for which fees may be charged do not include examinations or classes (other than summer school or postgraduate courses). The regulations also provide:

Nothing in this chapter shall be construed to prohibit the school board of any county, city, or town from making supplies, services, or materials available to pupils at cost. Nor is it a violation to make a charge for a field trip or an educational related program that is not a required activity.

Because the Advanced Placement Examination test is the required end-of-course examination, it cannot reasonably be viewed as a service or program for which a fee may be levied. This view is consistent with prior Opinions of this Office.

Given the absence of express authority to charge a fee for taking an advanced placement test, and the general principle that an elementary and secondary public education is to be free except in limited and delineated circumstances, I conclude that an Advanced Placement Examination fee cannot be charged to students who are taking an advanced placement course.

Conclusion

Accordingly, it is my opinion that a local school board cannot impose a mandatory fee on students taking advanced placement courses for the required taking of the Advanced Placement Examination.

With kindest regards, I am

Very truly yours,

Kenneth R. Cuccinelli, II
Attorney General