In Sherman v. Township High School District 214 and Illinois State Board of Education, the Illinois Appellate Court agreed with the brief filed by Franczek Radelet and upheld the constitutionality of District 214’s policy to charge a $350 fee to students who choose to enroll in its elective behind-the-wheel driver education course. Case No. 1-09-2746 (1st Dist. Sept. 30, 2010). This was the first time the Illinois Appellate Court considered the constitutionality of driver education fees.

The plaintiff, a parent of a District 214 student, challenged the school district’s $350 behind-the-wheel fee, arguing that it was unconstitutional under the free education clause of the Illinois Constitution because the fee not only covered materials and supplies (fees that courts have previously found are constitutional), but also covered the costs of teacher salaries and benefits (i.e., instructional costs). The court rejected the plaintiff’s argument, and refused to examine the issue as one considering the ultimate use of fees charged. Instead, the court found that there is no basis to conclude that the framers of the Illinois Constitution intended to cover driver education under the free education clause. The court also relied on the fact that other states that have considered the issue unanimously found that driver education is not part of a "free education."

Dismissing the plaintiff’s claim, the court found that while the framers included a free education clause in the Illinois Constitution, they did not mean "that all courses offered should be free." "When they talked about tuition-free, they were ‘speaking of book fees, book rentals and PE equipment.’" The court found that driver education falls outside this category of free education, a conclusion expressly supported by the language of the Illinois School Code’s driver education provision, which provides that a school "district may charge a reasonable fee, not to exceed $50" for behind-the-wheel driver education. The court concluded that this language "must be given its plain and ordinary meaning, which illustrates that it was never intended to be free."

This decision confirms that school districts can use the Illinois School Code waiver provision in order to charge a reasonable fee above the statutory $50 maximum for behind-the-wheel driver education to help offset the course’s substantial cost. The court, however, cautioned that its ruling does not mean that other elective courses are beyond the reach of the free education clause.

School districts with questions related to their driver education courses or other elective courses are invited to contact Franczek Radelet for additional information and counseling.