Education Executive's Update
Legal Issues To Consider Before Your Next Fundraiser
- By Brett Geier
- May 1st, 2016
In the current era of school budget constriction, co-curricular activities are seeing financial resources allocated from the district dissipate. A time-honored event to
assist co-curricular groups in acquiring the funds to carry out its mission is a fundraiser.
Fundraisers often conjure the vision of students conducting bake sales at the local grocery store,
spaghetti dinners before a basketball game, car washes at the local gas station and many others.
For most individuals, fundraisers seem like innocuous
activities that help these groups raise needed financial resources
to support their mission — new uniforms, equipment, field
trips, etc. Yet, the potential for legal violations is tremendous,
and in actuality, school administrators need to have knowledge
of the law couching these activities and the foresight to predict
conflict and plan accordingly. While most actions by public
educators completed within the scope of their job indemnifies
them from personal liability, the time spent on these issues and
financial resources expended to make whole individuals who
have been harmed can be weighty, which causes these resources
to be utilized in ways not best suited for student growth. Some
of the more prominent fundraising methods are discussed here
with a brief legal analysis provided.
NEGLIGENCE
Avoiding negligent behavior on the part of the school
may be one the most arduous tasks needing the most
forethought and guidance for staff members. Negligence is
defined by the following characteristics: (a) the failure to
exercise the standard of care that the doer, as a reasonable
person, should have exercised in the circumstances, (b)
undue indifference toward the consequences of one’s act, or
(c) including the notions of duty, breach of that duty (unreasonable
conduct), and resultant damage.
Educators are held to the standard of a reasonable and
prudent parent. Teachers acting in loco parentis have a general
duty to instruct, reasonably supervise and protect children
from known or reasonably foreseeable dangers while the
children are under the teacher’s care .1 Obligations of an educator
include: (a) providing adequate supervision, (b) providing
proper instructions, (c) providing properly maintained
buildings, grounds, and equipment, and (d) providing warning
regarding known or reasonably foreseeable hazards.2 An allegation
of failure to provide adequate supervision for students
is the most common negligence claim.
In order to minimize the potential for legal action due to
negligence, there are several factors that should be taken into
account as leaders seek to monitor fundraisers:
- An obligation to provide warnings regarding know or reasonably
foreseeable hazards;
- Provide proper instructions to reduce the risk of injury;
- Ensure that instructions are reviewed more than once;
- Incorporate the age, capacity and past behavior of students
when addressing foreseeability;
- Establish procedures that are consistent with board policy and
require all fundraising groups, clubs, or teams to comply.2
CONSTITUTIONAL VIOLATIONS
There are fundraising activities, conducted by public
schools, which may encroach on constitutional protections.
Public schools conduct fundraisers, which encourage the
consumer to place personal messages on tangible items,
such as a brick, tile, wood panel or paper.4 Displaying messages
on these types of items in a public school increases the
tension between protecting a person’s right of expression
under the Free Exercise Clause and the public school’s obligation
to prohibit religious expression violating the Establishment
Clause found in the First Amendment. Discerning
whether speech violates the Free Exercise Clause or remains
within the influence of the Establishment Clause can be
confounding for school administrators. Jurisprudence offers
little relief:
Unfortunately, because Supreme Court decisions concerning
the appropriate balance between the free speech and the
establishment clause are fact-specific and the court has yet
to address a case involving personal messages displayed on
school premises, legal principles must be extrapolated and
applied from case law that is available.4
Therefore, it is prudent for public school administrators to
be cognizant that fundraising activities, which invite the community
to place messages on public school property, may not be
guided by precise canons mitigating liability. First Amendment
speech rights could be chilled if private individuals are prohibited
from including these messages. Several factors, such as the forum
for the speech, maintaining viewpoint neutrality, and what the
actual message declares must be recognized by school administrators
to avoid conflict.
The following list provides suggestions for mitigating the
potential for constitutional violations when dealing with free
speech and fundraisers:
- Eliminate all personal messages. Limit message content to a
name and date;
- Prohibit all religious messages along with profane and offensive
ones;
- Prohibit disruptive messages. Permit religious messages but
then prohibit or restrict them if they disrupt the educational
function of the school.4
TITLE IX – DISPARATE BENEFITS
Title IX of the Education Amendments of 1972 ensures
that gender equity is mandated for all public schools that
receive federal funding. Public schools are prohibited from
discriminating, excluding or denying benefits because of
gender differences. To help remediate these deficiencies booster
clubs, alumni, and in some cases, corporate sponsors, that may
or may not be sanctioned by the school, contribute money to
athletic program budgets. Fundraising activities conducted by
school groups and non-school organizations, like booster clubs
create a situation whereby different levels of fundraising success
(or lack of success) justify a disparate claim.
Title IX does not require boys and girls budgets to match
dollar-for-dollar; however, the bottom line is that the benefits
provided must be equal. An institution is not absolved of this
responsibility when disparate benefits are created by successful
or unsuccessful fundraisers. Educational institutions cannot use
an economic justification for discrimination. In those instances
where fundraisers may lead to disparate benefits, administrators
should identify benefits of equivalent importance that may be
provided to offset disparities.
School administrators should consider implementing
some of the following points in order to avoid violating the
spirit of Title IX legislation:
- Establish one large booster club for all activities;
- The principal, or his or her designee, should attend booster
club meetings;
- The principal, or his or her designee, trained in Title IX
compliance, should monitor fundraising activities.
RAFFLES
Frequently, groups associated with school activities use some
version of a raffle to raise funds. Using the concept of a 50/50 raffle
may appear to be a fairly effortless method of raising revenue
fairly quickly: tickets are sold, money is collected and a winner
is drawn. However, 46 states and the District of Columbia have
enacted legislation controlling raffles. Organizations sponsoring
raffles may be required to file an application with the state. Some
state raffle laws limit the number of raffles that a tax-exempt
organizations can hold, while other states have laws about the
value of prizes given away, the format of the tickets and other
aspects of the raffle. Needless to say, it behooves any administrator
that oversees raffle activities in his or her building to be very
cognizant that state and/or local law probably governs this type
of activity, and assuming it does not could be detrimental.
FOOD FUNDRAISERS
A typical activity used in a fundraiser is to sell food.
Whether prepackaged food like candy bars, or prepared food
such as spaghetti dinners, two factors need to be explored
to ensure compliance with various guidelines. First, in the
past several years, the federal government has mandated new
rules for competitive foods and beverages known as “Smart
Snacks.” The 2010 federal law established rules that took
effect in July 2014 to cover bake sales and other food fundraisers
held during the school day, as well as snacks sold in school
vending machines, school stores and onsite cafes.3 The federal
regulations provide states an exemption from the law if they
so choose. Twenty-five states have, in fact, enacted exemptions
to the Smart Snacks standards.
Secondly, groups who wish to prepare food on campus
for fundraising activities have the potential of incurring state
health code regulations that provide direction or prohibition for
the use of school facilities to prepare food. Some states, through
health code laws, restrict the use of a food establishment in or
at a school to licensed personnel. States may require groups
using these facilities to obtain a license to operate a food fundraiser
in public schools, which may require trained personnel
to be present while the activity is being conducted.
MOVIE NIGHTS
Groups organizing a movie night, whereby a movie is
rented, downloaded or privately purchased, and the movie
is shown at school for a fee, are fairly typical. Yet, using a
video in this manner can raise copyright violations. Importantly,
no educational value is inherent in this type of activity
and is an infringement of copyright rights without the
purchase of a license. For those not familiar with copyright
law, it is possible that an infringement could occur without
malicious intent. Sponsors, advisors and coaches might be
inclined to approve such activities with the impetus being
enhanced resources for students — an honorable goal. This
assumption is erroneous, and if permitted to occur, the action
could place the school in jeopardy of legal action. Purchasing
a movie by a private individual does not constitute
the purchase of a license. School administrators need to be
aware of movie nights and ensure that appropriate measures
have been taken to minimize copyright violations. When in
doubt, always request permission.
Based upon this legal compendium of fundraising
activities, it may seem as though supervising fundraising
activities is a daunting task — it can be! Yet, these activities
are invaluable and are extraordinary team-building
activities. In order to minimize potential legal liability an
administrator can:
- Develop policies that require all school sponsored fundraisers
to be approved prior to implementation;
- Periodically hold meetings to train sponsors regarding
legal pitfalls incurred by conducting fundraising activities;
- Continue to be vigilant regarding knowledge about
fundraising activities. Do not ever assume that you know
something. It is always worthwhile to seek legal counsel if
you are unsure about the legality of certain activities.
REFERENCES
1 Dayton, J. (2012). Education law: Principles, policies, and practice. Bangor,
ME: Wisdom Builders Press.
2 DeMitchell, T. A. (2007). Negligence: What principals need to know about
avoiding liability. Lanham, MD: Rowman & Littlefield Education.
3 Healthy, Hunger-Free Kids Act, 42 U.S.C. § 1751 (2010).
4 Mawdsley, R. D. (2006). Solicitation of personal messages for display on
public school premises: What are the first amendment considerations?
West’s Education Law Reporter, 213, 909 – 934.
This article originally appeared in the May 2016 issue of School Planning & Management.