If summer school is being put on by the city'school foundation and we have to pay for the summer class would that be considered

It may not be allowed. Summer school is set up with classes that are remedial, not necessarily full content classes, and there are limited numbers of seats. As well, if your child is advanced, you will not get advanced level courses so GPA will possibly suffer.

I feel your pain. When my kids were in high school we had to pay for summer school because they were exercising an option to get ahead, not because they had scholastic issues. The moral of the story: people who don't try hard are given assistance, gifted and hard-working students shoulder the burden. Sadly, no constitutional challenge here.