Council of Organizations & Others for Education About Parochiaid, Inc. v. Governor

Organizations v Governor 1997] FOR COUNCIL OF ORGANIZATIONS AND OTHERS EDUCATION PAROCHIAID, v ABOUT INC GOVERNOR 106092-106094, 5, Argued (Calen- Docket Nos. 106106-106111. March July 30, 13). dar No. Decided 1997. The Council of and Others for Education About Parochiaid, Inc., others, brought Ingham and an action in the Cir- against others, seeking enjoin cuit Court the Governor and to distri- public public challenging bution of funds to academies and constitutionality 362, the of 1993 PA which the authorized acad- court, Collette, J., emies. The William determined 1993 PA 362 be to public unconstitutional because school academies were not under immediate, state, governed the exclusive control were not publicly bodies, and, thus, public elected were not schools under 8, § Const art 2. The court further held that Act 362 divested authority pro- the State Board of Education of its constitutional leadership general supervision public vide and over education as required by 8, 3, permanently enjoined § Const art distri- any funding. Appeals, bution of state school The Court of Marilyn P.J., J., dissenting), and D. A. J. affirmed (O’Connell, Kelly, Teeple, (Docket 180681, 181298, 181300). appeal. Nos. The defendants opinion by joined by In an Justice Chief Justice Brickley, Supreme Riley and Justices the Court held: Mallett, Weaver, PA 362 does not violate Const 2 or 3. The repealer enforceable, requiring 1994 PA 416 is valid and remand to injunction entry the trial court for vacation of the anof order Department Treasury public to the to disburse funds to the operating school academies under 1993 PA 362. Michigan 1. The Constitution does not mandate that the state system. have exclusive control of a school Public school academies are under the ultimate and immediate its control of state and may agents. authorizing Their charters an revoked time body grounds exist, has a reasonable belief that for revocation application-approval through state exercises control over them process funding public and controls their manner of other may schools, charge and academies not While the tuition. boards of may elected, school academies not be through authorizing maintains control of the schools bodies. 455 Mich 557 subject Academy to all are officials and are board members Further, Legisla- applicable pertaining law officials. apply School Code ture intended that academies. parochial schools. MCL 2. school academies are not Public prohibits religious organiza- 15.4502(1)specifically 380.502(1); MSA academy prohibits organizing public and further tion from any organizational contractual affiliations with churches or or religious organizations. other public Legislature declared school academies to 3. Because the they necessarily subject leadership public schools, are to the supervision general of the State Board of Education to the and public as all schools. same extent are other and remanded. Vacated part part, concurring dissenting in Justice in and Cavanagh, 1963, 8, Legisla- 2§ stated that the mandate of Const art that the system public elementary support ture maintain and of free secondary primarily imposes obligation fund, an to rather schools responsibility lead, supervise, control, public schools. than a to or opinion scope Legis- of The lead could be read to overstate the the authority pro- regard public lature’s with to education. 1993 PA 362 public public for sufficient of school academies

vides control bodies, and, accordingly, is constitutional. constitutionality parties challenged None of the has the of 1994 289, and, therefore, improvidently PA 416 or 1995 PA leave was respect repealer granted with the issue of the 1994 PA 416 to provision. concurring, agreed Chief Justice with the rationale and Mallett, majority opinion, of the and all but ii of Justice result Cavanagh’s opinion. Michigan dissenting, charter Justice stated that the Boyle, Michigan the Constitution and is invalid on its schools act violates constitutionality face. Because the issue of of 1994 PA 416 and the fully subsequent argued, amendment was not briefed or this case development remanded to the trial court for further of should be constitutionally acts are valid. whether the 1994 and 1995 amended act, 362, Michigan derogates 1993PA charter schools the con- public prohibition against application funding stitutional of 1963, 8, usurps private § aid schools under Const art authority supervise Board of Education to oversee and of the State public 1963, 8, § of art 3. The constitu- education violation Const public appropriated tional mandate is clear: No monies are to be or paid directly indirectly any private nonpub- aid maintain or or backing electorate, public In the view of the fiscal lic school. 1997] nonpublic systems, intentioned, educational no matter how well is

prohibited privatizes the state constitution. If 1993 PA 362 char- schools, ter the fundamental constitutional value has been trans- gressed. Thus, 8, amended, viability § unless art is depend public system charter school initiative will on how under successive acts. Although identify was careful to charter schools public purposes 1963, 8, 2, as schools for § of Const art and as purposes 1963, 9, 11, public school districts for Const art by privately selected, school academies are controlled rather than publicly elected, subject only boards of directors are to limited oversight authorizing bodies and the State Board of Educa- Despite tion. the fact that the State Board of Education is constitu- tionally supervise public education, mandated to lead and there is provision grants authority no under the 1993 act that to the State Further, despite Board of Education to revoke a charter contract. comply applic- the fact that school academies must with all law, academy subject large portions able schools are not addition, incorporates express pro- School Code. In Act 362 visions that are inconsistent with the conclusion that comply schools must with the School Code. assuming Even school academies are schools under Const 1993PA 362 would violate Const by divesting the State Board of Education of its constitu- tionally authority supervise mandated to lead and all educa- authority tion. Under 1993 PA the Board of Education has no academy application, contract, an review issue a charter revoke compliance, approve a contract for lack of or oversee and an acad- emy’s goals, proposed curriculum, educational student assessment criteria, day. Any length authority of student to oversee and supervise activity has been vested in the authoriz- body ing ability alone. The State Board of Education to lead supervise public ability deny and school academies is left to its funding or revoke under the State School Aid Act. Because the con- grants general supervisory stitution the State Board of Education leadership authority public schools, power over and the to act body general planning coordinating as the for all educa- tion, segregation power funding of this matters alone is a viola- tion of the constitution. Kelly Justice took no in the decision of this case. App 126; (1996) 216 Mich 548 NW2d 909 vacated.

White, Przybylowicz, Baird, Schneider & PC. (by Arthur R. Przybylowicz, Young, William F. 455 Mich

Opinion the Court plaintiffs- Clark), for Suzanne Krumholz appellees. Attorney Kelley, L. General, Thomas

Frank J. Casey, Zimmer, Paul J. Assistant General, Solicitor defendants-appellants. Attorney General, for Dykema, (by Gossett, P.L.L.C. Richard D. Silsbury, Wolfe), C. Lori M. and Leonard McLellan, defendants-appellants intervening Northlane Math Academy Michigan and Central and Science University. Orange A. for defendants Berlin

David Kallman Academy. Board and Noah Webster Amici Curiae: Majority Shelly Hall, Counsel, H. Senate J.

Alfred Edgerton, and Kenneth P. Poirier and Yvonne M. Balagna, Majority Counsel, Assistants for Dick Post- Majority humus, Senate Leader. Michigan

Mark H. Cousens for Federation of Organiza- Teachers and School Related Personnel and Supervisors. tion of School Administrators and J. This case concerns 1993 PA Brickley, commonly act, statute known as the charter schools the creation of acad- which authorized plaintiffs enjoin brought emies. The this suit to by challenging funds the consti- distribution tutionality Ingham Judge of the statute. Circuit Court opinion order, William Collette issued an and declar- ing §§ 2 that the statute violated art and 3 of the enjoined Michigan Constitution, 1963 and the distribu- 1997] v Governor Appeals any public funds. The Court tion of App (1996). 126; Mich 548 NW2d 909 affirmed. 216

i Michigan Legislature 24, 1993, the On December January passed 14, 1994, On Gover- enrolled SB 896. Engler signed (1993 law PA nor John the bill into 362). Code, Act 362 amended 6A of the School seq., seq.) MSA 15.4501 MCL 380.501 et repealed et by PA all the sections created 284.1 Academy During spring Noah Webster application an to charter a submitted academy No. Fractional of the to School District Townships Orange. application of Berlin and The was by townships accepted and the charter was July by During authorized the school district. application year, August of the same Ronald Helmer’s Academy Math and was to start Northlane Science approved Michigan Central Univer- considered and Academy sity. Math Noah Webster and Northlane Academy applied funding. to the state for Science Department of Education made a formal deci- approve Math 17, 1994, sion on October Northlane Academy and Science and seven other funding. academies for state Noah Webster was the amended twice since it took effect —1994 PA 416 Act 362 has been 289, commonly as the Revised Code. and 1995 PA referred to School parties dispute whether this Court should consider the amend- constitutionality only determining when of this statute. It is ments First, necessary Court to review 1993 PA 362 for several reasons. for this operated in 1994 under 1993 PA 1993 PA 362 is not moot. Several schools funding Second, from the state. the constitutional- 362 and did not receive disputed ity challenged PA and 1995 PA 289 have not been of 1994 specifically party. Finally, either amended the acts that were noted the trial court correct the constitutional deficiencies this matter. 562 455 Mich 557 Opinion the Court only Depart- applicant funding that was denied ment of Education because it did not meet requirements essentially 362, of Act as it was a home- study operating school. Noah Webster has been since funding.2 1994without August Organizations 18, 1994,

On the Council of and Others for About Parochiaid, Inc., Education two members of the State Education, others, Board of Ingham challenging filed suit in the Court, Circuit constitutionality Judge of Act 362. Collette dismissed standing. August the suit for lack of On 30, 1994, plaintiffs complaint, refiled the and a show cause hearing hearings, was scheduled. After several parties summary disposition. filed cross-motions for prelimi- 19, On October 1994,the trial court issued a nary injunction, preventing Department of Treas- ury any issuing payments from state school aid public school academies until a decision was made constitutionality on the PA 1993 362.

On November 1, 1994, the trial court determined finding that Act unconstitutional,3 362 was that school academies were not under the “immediate, approved by Public school academies that have been the State Board operate funding pursuant of Education and receive to 1994 PA 416 and seq.; seq. They 289, MCL 380.511 et PA MSA 15.4511 et have only funding 416, received from the date of the enactment of 1994 PA not for the time that 1993 PA 362 was in effect. plaintiffs alleged had also at the trial court level that the act vio (the funding through provi lated Const school sales tax sion). inadequate The trial court held that there was evidence to substanti They appeal Appeals. ate the claim. did not cross this issue in the Court of seq.; seq., Additionally, Code, MCL 380.1 et the School MSA 15.4001 et clarify academy may has since been amended to “[a] levy property any purpose.” not ad valorem taxes or other tax for 503(8). 1994 PA subsection

1997] . . . .”4 The court fur- control of the state exclusive were not gov- school academies ther held that bodies; therefore, public by publicly elected erned schools” under art “public academies were not Michigan 2 of the Constitution.5 held that Act 362 Additionally, the trial court of its constitu- divested the State Board of Education authority provide “[leadership general tional required by over education as supervision” was a 1963, 8, 3,6 finding art a that based on § Const 4 by requirement combining formulated its control The circuit court OAG, 1989-1990, 6581,pp 103, (May 8, 1989), 105 with terms found in No General, City Attorney Mich in Traverse School Dist v 384 terms found Attorney 390; opinion 6581, opined (1971). In No the General 185 NW2d 9 question public school because it “is not that the school in was not a Michigan, gener the exclusive control of the State of and it is not under ally open all in the district in which it is located.” The children school Attorney opinion General’s concerned a tribal school that restricted admit that, City, Supreme tance. In Traverse Court stated for a shared-time admittedly private arrangement public and school to with between a an scrutiny, sharing arrangement stand constitutional must be under the system authorities. Id. “ultimate and immediate” control of at 415. 8, provides: § Art legislature support system pub- shall maintain and of free elementary secondary Every

lic schools as defined law. provide pupils school district shall for the education of its without religion, creed, race, origin. discrimination as to color or national property appropriated paid monies or No or shall or any public utilized, by legislature any political credit or other agency directly indirectly subdivision or of the state or to aid or any private, nonpublic, pre-ele- maintain mentary, elementary, denominational or other secondary payment, credit, No tax or school. benefit, exemption deductions, voucher, subsidy, grant or tuition or directly property provided, loan of monies or shall be support any employ- indirectly, to the attendance of student or the any any any person nonpublic ment of at such school or at location part in whole or in or institution where instruction is offered may provide nonpublic legislature school students. The such any transportation of students to and from school. provides as follows: 6 Const art 455 Mich 557 PA PA Conse comparison of 1993 284 and 1993 362. injunction issued, was quently, permanent prohibit dispersion state school ing funding. Attorney 28, 1994, On November General appealed Appeals. Webster, in the Court of Noah Northlane, Branches, New and CMUfiled claims of appeal 30, respectively. on November 29 and Appeals, Court of in a two-to-one decision Judge Marilyn Kelly, affirmed the trial court’s finding Act 362 was App unconstitutional. 216 Mich 135. The majority held that because the statute lacks a mecha- nism that public body mandates that a select board school, of directors for the it does not meet the constitutional standard of Const 2. Id. at 134-135. However, Judge O’CONNELLstated in his majority dissent that the acting “super was as a legis- lature,” majority employed that the an incorrect stan- review, dard of and that

act was constitutional. Id. at 135, 160.

On 13, 1994, passed December the Legislature Act 416, which amended Act 362 6A amending and establishing part 6B. The school acad- Leadership general supervision public education, and ail over including programs adult education and instructional in state insti-

tutions, except higher granting as to institutions of education bac- degrees, calaureate is vested in a state board of education. It shall general planning body coordinating public serve as the and for all education, including higher education, legisla- and shall advise the requirements ture as to the financial in connection therewith. initially Public school academies were established 1993 PA 284. Legislature repealed Act 284 before it became effective. 1993 PA 362. questioned why repealed taMng Both lower courts Act 284 was before its However, repeal effect. the reason for the does not influence the facial constitutionality gives of 1993 PA 362. This Court deference ato deliber Legislature, inquire leg ate act of the and does not into the wisdom of its Twp Twp Clerk, 673, 690; islation. Dearborn v Dearborn 334 Mich (1952). NW2d 201

1997] currently operating do so under in the state emies part Many part 6A were amendments of of the 6B. rulings. Leg- response trial court’s to the made designed Act that, 416 so if a court found Act islature 6B of Act constitutional, then 362 to only provi- automatically repeal itself would apply. 6A would sions of

n constitutionality to determine the of the In order necessary. provisions is Under statute, a review of its academy organized a Act a school is as Nonprofit Corpora- nonprofit corporation under the seq.\ 21.197(101) tion Act. MCL 450.2101 et seq. MSA et academy 502(1). A Subsection school of direc- administered under the direction of board nonprofit and the tors in accordance with Act 362 bylaws corporation contained in the school academy’s 502. contract. Section academy, applicant, organize public an

To school applica- person entity, an either a or an must submit specific body. authorizing tion to an Act 362 contains every public included with information that must be academy application. It must include at least school applicant, the identification of subsection proposed 502(3)(a), a list of the members of the qualifica- description board of directors or a appointment election,8 tions method bylaws. incorporation and the The arti- the articles of incorporation names of the are to include the cles of academy proposed authoriz- and of the ing body, purposes of the authority authorizing subject board under sub to the Which is 603(3). section 455 Mich

Opinion of the Court corporation, proposed and the time that the articles incorporation will be effective. Subsection proposed bylaws 502(3)(c)(i)-(v). The must include a copy governing public of the structure of the school academy, copy goals, of the education curriculum pupil be offered, assessment, to method of and the policy,8 day admission the school calendar and school age grade range pupils schedule, and the 502(3)(d)(i)-(v). be enrolled. Subsection application descrip- Moreover, the must include responsibilities agree- tions of the staff as well as an public academy comply ment that “the school will provisions [part with the Code] 6A of the School subject provisions part, and, to the of this with all applicable other state law bodies and with applicable federal law bodies or school dis- 502(3)(g). tricts.” Subsection If the school academy is authorized district, school there must academy be an assurance that the school will bargaining agreements be covered the collective apply employees to other of the school district. 502(3)(h). Subsection specifies types authorizing

Act 362 four bodies: (1) (2) the board of a school district, intermediate (3) community college, board, school the board of a (4) governing and sity. board of a state univer- body 501(2). authorizing

Subsection An is not required any public to issue con- tracts, does, but if it it must issue the contracts “on a competitive taking basis into consideration proposed public resources available for the policy comply admission must with 504. Subsection 502(3)(d)(iii).

1997] v Governor population pro- academy, the to be served public academy, posed and the educational school by proposed public goals to be achieved school academy.” 503(1). granting a Subsection Before con- operate public academy, a school an authoriz- tract to body required adopt ing establishing is a resolution length selection, term, the method of and number public academy’s of members of the school board of 503(3). directors. Subsection body public academy authorizing for a school agent public academy, for is the fiscal school payments paid body. authorizing its aid are to the body responsible authorizing public is for the school academy’s compliance appli- all with the contract and Further, cable law. Section 507. the contract academy public at time revoked school fails by to abide the statute. public 501(1) “[a]

Subsection states that school academy is a school under section 2 of article VIII of the state constitution of and is consid- purposes ered to be a school district of sec- IX tion of article of the state constitution of 1963.” expressly power Act 362 does not limit the of a board fact, “[a] of education. In Act 362 states that academy comply applicable school shall with all 503(5). Moreover, law . . . .” Subsection the act organization religious states that a church or other academy organize cannot school and that a academy prohibited having is from organizational or contractual affiliations with religious organizations to the churches or other agreements prohibited extent such are the state or 502(1). federal constitutions. Subsection 455 Mich specifically provides that a Act 362 Furthermore, academy prohibited charging public school from required pupil tuition and is to abide admission policies If the set forth in the statute. Section 504. applicants more than has space, required pro- it is to hold a random selection cess for the enrollment of its students. Id.

m compelled pro- When to make a constitutional great nouncement, the court must do so with circum- spection carefully trepidation, language with tai- lored to be no broader than that demanded particular rendering pro- facts of the case such necessary. Raines, nouncement United States v (1960). 4 L 17, 21; 519; US 80 S Ct Ed 2d 524 way go operation The court will not out of its to test the every of a law under conceivable set of The circumstances. only validity light in court can determine the of an act questions of the facts before it. Constitutional are not to be Corp Attorney in dealt with the abstract. Motors v [General General, 558, 568; (1940). 294 Mich NW293 Accord Regents Michigan Michigan, 52; Univ v Mich of of (1975); Salerno, 739, 745; NW2d 1 United States v 481 US 2095; (1987).] 107 S Ct 95 L Ed 2d 697 party constitutionality challenging the facial an act “must establish that no set circumstances [a]ct exists under which the would be valid. The fact might operate unconstitutionally . . [a]ct that the . under some conceivable set of circumstances insuf- supra any . . .” Salerno, “[I]f ficient . at 745. state of reasonably facts can be that would conceived sustain legislative [a act], existence of the state of facts at law the time the was enacted must be assumed.” 16 1997] p § Further, 642. Law, Constitutional 2d,

Am Jur although it lacks be constitutional “[a] statute requirements, provisions if which meet constitutional requirements, excluding and in it has terms not such justified holding in that the this situation the court is subject require- to such statute was intended to be requirements are to be consid- ments, and that those p Id., 225, in statute.” 659. ered as embodied rules of constitutional This Court articulated three Attorney City v in Traverse School Dist construction (1971). 390; 185 NW2d 9 Justice General, 384 Mich primary rule of construction stated that the Williams understanding.” at 405. Id. is the rule of “common in his treatise on Con- Justice defined this rule Cooley Limitations: stitutional people people.

“A constitution is made for the interpretation given that should be it is that which rea- people themselves, minds, great sonable mass of give the Constitution does not derive its would it. ‘For as peo- framed, which but from the force from the convention ple it, to be arrived at is that of the who ratified the intent supposed they people, and it is not to be have looked employed, meaning dark or in the words abstruse they accepted in the sense most but rather that have them understanding, to the common and ratified the obvious designed that that was the sense instrument the belief conveyed.’ (Cooley’s 81).” Const Lim [Id.] clarify meaning A rule is that to second provision, circumstances surround- constitutional provision adoption ing and the of a constitutional may accomplished purpose sought consid- be be point the Court has said: ered. On this provisions construing where the mean- In constitutional regard ing questioned, have to the the court should 455 Mich leading adoption purpose circumstances to their and [Kearney accomplished. v Bd sought State Audi- to be tors, 666, 673; (1915).] 189 Mich 155 NW 510 interpre- possible, A that, third rule is wherever an invalidity tation that does not create constitutional is preferred pur- to one that does. Chief Justice Marshall fully thought Marbury sued this Madison, v 5 US (1 Cranch) (1803): 137, 175; L Ed 60 inoper-

If other construction would render the clause ative, rejecting that is an additional reason for such other construction, adhering and for to their obvi- [the clauses’] meaning. ous gives

This Court deference to a deliberate act of Legislature, inquire and does not into the wisdom legislation. Twp Twp of its Dearborn v Dearborn (1952). Clerk, 334 673, 690; Mich 55 NW2d 201 power to declare a law unconstitutional should be exercised with extreme caution and never where seri- regard Thayer ous doubt exists with to the conflict. v Dep’t Agriculture, 323 Mich 413; 35 NW2d 360 “Every (1949). presumption reasonable or intendment indulged validity must be in favor of of the act, only invalidity appears clearly and it when so as to leave no room for reasonable doubt that it violates provision some of the Constitution that a court will validity.” Cady refuse to sustain its Detroit, v (1939). 499, 505; Mich 286 NW construing constitutionality In of a statute, we requirements examine the statute’s rather than method which the individual schools administer programs. Society, their Rassner v Federal Collateral (1941). Inc, 299 Mich 206, 217-218;300 NW45 A valid statute is not rendered unconstitutional on the basis

1997] Opinion of the Court People Kirby, improper 440 Mich v administration. Similarly, (1992). an invalid 487 NW2d 485, 493; by compensating actions on statute is not redeemed supra. The Rassner, of its administrators. constitutionality of a law must be tested what any express provi offending done under it without Cummings Garner, v sion of the constitution. (1921). 408, 435;

Mich 182 NW 9

IV Michigan The 1963 Constitution does not define the “public that However, term schools.” it does state responsibility “maintain[ing] Legislature has the system supporting] a of free educa- Legislature § . .”10 2. had tion . . Art has defining task of the form and the institutional struc- through ture which education is delivered in Michigan Michigan since the time became a state. See Const 3. system appellees assert that the established §8,

our violates art 2 because public, 1) they academies are not that are not under the ultimate and immediate, exclusive, 2) academy’s control of the state and because the publicly appointed board of directors is not elected or body. by public

A Using “public the definition of school” set forth in p plaintiffs OAG,1989-1990, 6581, 105, No reason seq.\ seq., Code, MCL 380.1 et MSA 15.4001 et The School has since expressly “public been amended to define the term school” so as to encompass public However, 5(6). PA school academies. 1994 this independently meaning Court must determine the of constitutional terms. 455 Mich 557 are not schools school academies they under the immediate and because were not City, supra.11 control of the state. Traverse exclusive City, In this Court answered several Traverse declaratory ques- in a action. School districts issues constitutionality existing tioned the shared-time auxiliary provided nonpublic activities services City address what school students. Traverse did not public nonpublic, made a school but instead public provide a whether school could services such parochial as driver’s education to students in schools. The Court that under held the services that were immediate and exclusive control of the state could be nonpublic rendered to the students of schools they “public because then were services.” Our constitution does not mandate exclusive con- requires legislature trol, “[t]he it shall maintain system support public elementary and secondary of free § . . .” Therefore, schools . Art 2. plaintiff’s first assertion fails because there is no requirement in our constitution that the state must system. have exclusive control of the school requires only Legis- While our constitution that the support system” public lature “maintain and parties argue schools, and several other states recognized have the need for the state to have some 11The trial court held: This Court determines that a school must be under the immedi- ate, pass muster, exclusive control of the state to constitutional as open being

well as to all students that care to attend. that, The court then examined the act and reasoned because it would possible authorizing body satisfy grant for an a charter that did not “immediate, requirement, its exclusive control” the act was in violation of 8, § Const 2.

1997] qualify public funding. See, in order to control generally, 2(b), CJS, Districts, School and School pp public Michigan’s 38-39. school academies meet they requirement are under the ultimate this because agents. immediate control of the state and its any First, a charter be revoked time the authoriz- body ing grounds has a reasonable belief that for rev- academy’s exist, ocation such as either the failure to of its charter or its failure to com- abide the terms ply applicable 507(a)-(d). with all law. Subsections authorizing are

Second, because bodies insti- tutions, the state exercises control over application-approval process. through academies process, body reject During authorizing this can any application completely with which it is not satis- body’s through authorizing detail, fied in any public right to revoke the charter of school acad- emy comply that does not with its charter. money. pro-

Third, the state controls the The act funding vides for the school academies in schools, 507, the manner of other and may charge school academies not tuition. Subsection 504(2).12 The framers of our constitution stated that “restrictions as to finance and definitions as to basic qualifications eligible needed to be for state aid aré legislative 2 better left to determination.” Official p 1961, 3395. If a Record, Constitutional Convention qualifications Legislature meets the set 12 Cordes, 278; (1894), parties In Richter v 100 Mich 58 NW 1110 disputed building prop that had been used as a school whether certain erly adjoining belonged district or to an church. The state of to the school overtly Despite religious the fact that instruction the deed was unclear. school, given in this Court ruled that the that the school had been fact pub public funding necessarily meant that the school was had received lic. Id. at 285. Mich 557 455 any and does not offend constitu- funding, for state qualifies public it as a school. protection, tional intended the other sections Finally, Legislature apply School to the Code in 1993 specific academies.13 There are no restrictions power Addi- PA 362 that would limit the of the state. tionally, the intent of the is evidence 1995 PA where the School Code was revised and specifically school academies were included in provisions.14 the Revised School Code required The dissent asserts that school academies are not comply However, with other sections of the School Code. it is evi they specifi apply, dent that other sections of the School Code cally exempt. unless are elementary pari in materia are “It is that statutes to be taken together ascertaining legislature, in the intention of the and that courts regard upon general subject part will all statutes the same matter as of 1 system.” Twp Jones, 658, 662; 57 NW2d Dearborn Clerk v 335 Mich (1953). partic This Court has further held that the construction of a “[i]n statute, interpretation provisions, ular ing or in the all relat of its acts subject, having general purpose, to the same or the same should be it, together constituting read in with as law.” connection one Id. provides pub- 501(1) 1993 PA in subsection relevant that “[a] pur- lic school . . . considered to be a school district for the poses 1963,” of section of article IX of the state constitution of which provision. Act, 388.1601; is the state school aid The State School Aid MCL provides ques- 15.1919(901) safeguards MSA and controls that are dissent, including 388.1609; 15.1919(909), tioned MCL MSA which provided department promulgate that “the shall rules nec- [of education] essary implement and administer this act.” provision specifically provides One in 1993 PA 362 for the use of non- provides certified teachers. Section 505 that noncertified teachers only faculty authorizing if used body the teacher is a full-time member of the granted and has at a uni- been tenure is on tenure track versity taught subject years ifor the teacher has for five at a commu- nity college. specifically statutes, Public school academies are included in several see, generally, 380.1137; (rights parents legal MCL MSA 15.41137 guardians); 380.1221; (treasurer MCL MSA 15.41221 of the school board deposit bank, loan, union); savings must 380.1230; funds or credit MCL (requiring background MSA 15.41230 criminal checks for employees); 380.1267; (competitive MCL MSA 15.41267 bids for construc 380.1274; (procurement sup contracts), tion and MCL MSA 15.41274 plies, materials, equipment).

1997]

B plaintiffs argue public The further that because a by private school is run board of directors body authorizing and because the has no means for selecting board, members of the school academies are not schools.

This Court has stated: authority granted Legisla- the Constitution to the primary system

ture to establish a common or car- authority prescribe ried with it the what officers should districts, be chosen to conduct the affairs of the school powers duties, office, define their their term of they Burr, how and whom should be chosen. v [Belles 1, 11; (1889) (emphasis supplied). Mich 43 NW 24 See also Penn School Dist No 7 v Lewis Cass Intermediate School Ed, App 109, 125-126; Dist Bd 14 Mich 165 NW2d 464 (1968).] 503(3) provides: Subsection of 1993 PA 362 body adopt authorizing An establishing shall a resolution selection, length term, the method of and number of members of the board of directors of each academy subject jurisdiction. to its Legislature Therefore, has mandated the board process. Legislature of directors’ selection has change process control, this and it can this at time.

Additionally, authorizing the board of the bodies is publicly appointed by public elected or bodies. While the boards of the school academies using We are not the revisions of 1995 PA to make 1993 PA merely PA constitutional. 1995 evidences the intent of the to have control over the school academies. Mich 557 455 576 Opinion of the Court control of maintains elected, not be authorizing through bodies. the schools

c understanding if we examine the common Further, adopted by “public the 1961 is, school” as of what a paragraph of Convention, for the first Constitutional understanding inquire § the common and if we into nonpublic” “private, or other denominational adopted voters in 1970 for the sec- school, as paragraph acad- 2, we find that ond “public CJS, Schools schools.” Under 78 emies are p “public school” is Districts, 2, 39, and School public expense, primarily and maintained at established moneys taxation, general as contradistin from raised or, private school, in guished denominational from a system words, comprised a school in the free school other adopted generally in the United States.[15] which has been as, It has further been defined broadly open speaking, in the and to all locality,[16] through various boards and which the state undertakes direct, manage, and and which is sub officers to control,[17] 15 important Michigan operating It to note that is not alone charter January twenty-four and the Dis schools. As of at least other states acts, including: Alaska, Ari trict of Columbia have enacted charter school Colorado, Connecticut, Delaware, Florida, zona, Arkansas, California, Kansas, Louisiana, Massachusetts, Minnesota, Georgia, Hawaii, Ulinois, Island, Jersey, Mexico, Carolina, Hampshire, North Rhode New New New Carolina, Texas, Wisconsin, Wyoming. South 16 34; Special Logan Bangs, 144 Ark 221 SW Dist No 65 Co v School (1920). Parker, 984; 238 Iowa Silver Lake Consolidated School Dist v (1947). NW2d

1997]

ject qualified to and under the control of the voters of the school district in which it is situate. [Id.][18] Supreme Washington Court held that a com- (public school) meaning mon school “within the Washington’s [the State of Constitution] is . . . com- proper age capacity, mon to all children of free, subject qualified to and under the control of the voters of the school district.” State ex rel School Dist (1914). No Preston, 3 v 79 Wash P 289; 140 350 requirement However, we do not have a in our state constitution that mandates that the school be under the control of the voters of the school district. history In a fact, review of our constitutional shows that our forefathers envisioned education to be Legislature, under the control of the which is under the command of the entire state electorate. The Con- stitution of 1835 stated: legislature provide system The shall for a of common by

schools, kept up supported which a school shall be and in every each school district at year; least three months in neglecting keep up support and school district school, deprived such equal proportion a be of its the interest of the fund. [Art 3.] requirement There was no in the 1835 Constitution that the members of the school board for the local district be elected the local voters.

During the 1850 Convention, Constitutional the edu- cation article was amended after much discussion regarding “free education.” The education article was renumbered art and revisions were made. The del- (1914). State ex rel School Dist No 3 v Preston, 79 Wash 286; P 455 Mich 557 the the nature of length at some discussed egates should be the constitution specific and how revisions eventually Legislature that They agreed written. noted, delegate As one deference. given should sys- Legislature establish law I think that the should subject schools, should be and I think the tem of common system hands; progress, it should be is in left in their as upon, properly amend to decide left for system would, might adopt a it from time to time. We practical working, best. This be found not to be the in the judged upon progress of should be left to be matter age. Legislature, willing for this reason —if I am to trust the primary schools, they pass it is in relation to a law people; power in good, returns to the not to be found only way people upon fact, decide it that the can p subject. Convention 265.] [Constitutional adopted 4, which people of this state then stated: shall, years adoption legislature within five from the system provide constitution, this for and establish whereby kept

primary schools, a school shall be without year charge in for tuition at least three months each every state, and all instruction in said school district in the language. English shall be conducted in the [Const 13, § 4.] a incorporated of 1908 section The Constitution encourage- that was intended to evidence the state’s stated: ment of education. Section one morality necessary knowledge being Religion, and happiness mankind, good government schools and the of encouraged. means of education shall forever be and the 11, § [Art 1.]

1997] of

Opinion the Court of primary provision The was also amended: legislature system primary shall a of continue whereby schools, every pro- school district in state the shall pupils charge for vide the education of its without for tui- tion; all in instruction such schools be in shall conducted language. English § the [Art 9.] changes of Constitution 1963 also the made education article. The article was rewritten to limiting language of exclude much the that in existed clarify the 1908 Constitution, 11, 9, and to powers the State Board Education. Article legislature was amended to state: “The shall maintain support system public elementary a of free secondary by Every schools as defined law. provide pupils district shall for education of its religion, without race, discrimination as to creed, origin.” required color national This support” public to “maintain and schools rather than system requirement pri- the former a to “continue mary schools.” history

This review of the of the education article requirement shows that there was never that the appointed local school had board body opined by Appeals majority as the Court of in Finally, this case. we note several schools in the organized are state and maintained without local Michigan control. The Deaf Flint, School Michigan Lansing, School for the Blind in Rehabilitation Institute for Veterans and Disabled Lake, Adults at Pine are controlled State Board not local Education, school districts. MCL 15.1023(10). 388.1010; MSA Mich 557 455

Opinion of the Court d defi- limit the does not parochiaid The amendment public schools to exclude nition of elector- by 2 was amended Article academies. commonly as the known in 1970 what is ate added to § This amendment parochiaid amendment. following language: property appropriated or shall No monies or any any public utilized, legislature or paid credit or directly agency or political or of the state subdivision other any private, indirectly or aid or denominational to maintain secondary nonpublic, pre-elementaiy, elementary, or other exemption credit, benefit, or payment, tax No school. subsidy, grant deductions, voucher, tuition or loan directly indirectly, property provided, or or shall be monies any employ- support the attendance of student or the to any any any nonpublic person at such school or ment of at in whole where instruction offered location or institution nonpublic legisla- such school students. The may provide transportation to and for the of students ture from school. the circumstances sur- City

Traverse discussed leg- amendment: “In parochiaid rounding joint study ques- islature created committee recom- private of aid to schools. committee tion it enact to the legislature mended (A Report parochiaid. and Recommendations on Non-Public Legislative Joint Committee Aid to January especially pp 25-30.)” See Schools, 16, 1969. at n 2.19 Several measures were introduced Id. parochiaid history was Justice amendment summarized Williams as follows: Bill the committee’s recommenda- House which embodied by eight in the House. unsuccessful was defeated votes Two

tion 1997]

and defeated that would have authorized tax relief for during legislative bills were designed introduced the 1969 session give paying parents attending pri- tax relief to tuition of children provided any per- vate schools. Senate Bill 1097 for a tax credit for paid elementary secondary son who tuition for in students grades private proposed in schools. House Bill 2697 that individué taxpayers tuition, be allowed to subtract the cost of books and fees college adjusted gross for school or from their income to deter- Michigan mine taxable income for the income tax. Subsequent parochiaid, to the House defeat of the Governor cre- ated a Committee on Educational Reform. The Committee recom- legislature parochiaid. (Report mended that the enact the Gover- of Reform, September 30, nor’s Commission on Educational 1969. especially p 15.) 1082, See Senate Bill which included the commit- adopted by Governor, passed by tee’s recommendation the was the Foreseeing Senate in approval, the 1969 session. House the Gover- $22 nor budget included in million his estimated state for 1970 to parochiaid February During fund the scheme. of 1970 the House approved parochiaid. joint The measure was sent to a House- Senate conference committee. prior In aid, parochiaid generated contrast the to forms of state controversy legislature. heated both inside and outside the It took legislature years the over two to enact it. When it became clear in February legislature pass parochiaid, of 1970 that the would group Against of citizens peti- called Council Parochiaid circulated containing present language Proposal tions They the of C. suc- obtaining signatures place in proposal ceeded sufficient the on general 3, the ballot for the next election on November 1970. How- ever, certify the State Board of Canvassers refused to it on the grounds petition But, Michigan the was defective. the Court of Appeals brought by in a mandamus action members of the Council Against Proposal Parochiaid ordered C on the ballot. Carman v Secretary (1970), App 563], State 26 Mich NW2d [182 of September 14, 1970, important On this Court rendered two deci- appeal upheld sions. It denied leave to Carman and the constitu- validity parochiaid. Advisory Opinion tional ity re Constitutional- (1970), PA 265], Thus, No 100 384 Mich 82 NW2d [180 parochiaid it was clear that Michigan. date that was law in Indeed, paid parochiaid funds were following out under the scheme Michigan Supreme the decision eligible private Court to accepted schools who the aid. It was also clear that the Council against ready challenge Proposal Parochiaid had its in the form of C on the fall ballot. stage 3, 1970, set was for the election on November for the speak judgment they Proposal

voters to their when voted on C. The supporters opponents news media and even the active of Pro- posal Proposal.” Everyone C referred to it as the “Parochiaid 455 Mich 557 in clear tuition. When it became paid who parents pass February would 1970 that Against called Council parochiaid, group citizens petitions containing lan- Parochiaid circulated They 2. Proposal Id. at n of what was c. guage place obtaining signatures succeeded in sufficient general ballot the next elec- proposal on the on 1970. Id. tion November As far voters were concerned as the and action concern- preelection result of all the talk simply Proposal was an Proposal C was this ing “— C public monies anti-parochiaid amendment —no was parochial beyond run schools —and all else designed parochiaid agreed proposed amendment to halt was adopted. if and would have that effect impact What was unclear was the amendment would have on private During campaign other state aid to barraged schools. forms of contradictory voter with statements on what the was proposal have on various forms of aid. effect the would these state General, Attorney both Mil- Pursuant to advice of the Governor the Porter, Superintendent Acting and W. the of Public liken Instruction, John public adoption to the effect that of made statements auxiliary programs the would terminate service for amendment availability students, jeopardize nonpublic school the of Federal Secondary Elementary funds I of the and Education Act under Title 1965, exemptions nonpublic including for schools of end tax property exemption nonpublic 9, tax secured to schools Article Constitution, possibly police Michigan 4 of the affect fire and and protection sewage (Stipulation and as well as sanitation services 3). paragraphs 2 and Facts Ellmann, spokesman Against Erwin a the Council B. Parochiaid, key who, lawyer, played drafting as a a role amendment, issue with the of Governor Milliken took statements published Michigan and Mr. In letters to Mr. Porter Porter. electorate, Proposal C would not terminate shared time or he said auxiliary nonpublic receiving services; it bar school students from only auxiliary would shared time and services those offered limit public funds, proposal would cut off at the school. Nor Federal protection jeopardize police sewage and fire or sanitation ser- property exemption according vices or to Mr. terminate tax 408-410, Ellmann. n at [Id. 2.] 1997] v Governor complete Id. at n 2. 410, utter On confusion.” proposal adopted 1970, the was November parochiaid electorate, as far as and, concerned, was rejected the voters it. Id. understanding

Therefore, the common of the voters spent in 1970was that no monies would be to run a parochial public However, school. school academies parochial specifically not are schools. The statute prohibits religious organization organizing from public academy prohibits any school and further organizational or contractual affiliations with religious organizations. churches or other Subsection Additionally, 502(1). is not a parochial charging pro- school in that the of tuition is hibited, as is restriction on admission than other process a random selection if school has more applicants space. 504(2). than Subsection

v plaintiffs argue act violates Const allegedly 3 because it divests the State duty Board Education of its to lead and exercise supervision general over education. provides § Article in relevant that the “Leadership general supervision over all education ... is vested state in a board educa- general planning It tion. nating shall as the serve and coordi- body for all education . . . and shall legislature requirements advise the as to the financial in connection therewith.”

Because the declared that public they 501(1), schools, academies are subsection subject necessarily leadership general are to the supervision of the State of Board Education the 455 Mich Opinion the Court of Further, public all schools. are other extent as same “public school acad- provides that 503(5) subsection require- applicable law,” comply with all emy shall provision in incorporates that the constitutional ment 2d, Law, in 16 Am Jur Constitutional As stated issue.20 “A be constitutional 225, p 659: statute which meet constitutional provisions lacks although it excluding such if it has terms not requirements, . .” . . requirements board over authority the of the state

Additionally, statutes. The is established other public schools 388.1009; MCL implementing statute, state board powers provides the has that board 15.1023(9), MSA MCL supervision over all education. of the board with 388.1015; provides MSA 15.1023(15) prescribe regulations rules and the authorization carry provisions out the of necessary it deems that the act.21 its

Thus, it is clear that the board retains constitu- As authority over school academies. tional Houghton Community Bd Lake noted State Ed v of Schools, 658; (1988), prin- Mich 425 NW2d 80 exercises its cipal means which the state board powers through over all school districts State seq., seq.; Code, MSA 15.4001 et 380.1 et MCL has since The School explicit “subject are make school academies been amended to leadership general supervision state board [of to the education] the state all under section 3 of article Vffl of consti over education 501(1). tution of 1963.” 1994 PA subsection provide argues that the act does not the State The dissent because authority retention, selection, removal of Board Education over education, act members of charter school board of violates the However, does have constitution. the State Board Education not authority selection, retention, over the or removal of the members of therefore, public schools; school acad boards traditional regard. are no in this emies different 585

1997] of Opinion the of Court School Aid Act. MCL et seq.] 388.1601 15.1919(901) MSA et See MCL seq. 388.1603(5); MSA by power 15.1919(903)(5). This is evidenced the of deny the to as board it did to Noah funding, Webster. It be that should also noted subject board members are officials and are to all law applicable pertaining to officials.22

VI plaintiffs state that the repealing section, an constitutes unconstitutional of delegation legisla- authority. tive repeal of a a legislative statute is act that not be delegated. Wayne Atlas v Co Bd Auditors, 596; 281 Mich 275 NW 507 (1937). It is of the of judiciary function the to determine existing rights, repeal not enact or To legislation. predicate the on judiciary may statute the act of the influence the of decision this Court. provides:

Section 518 who The issue is and who not a is official was discussed in Wood, 279, 282; App (1981), quoting v 104 Mich 304 NW2d 551 Bandfield People Freeland, 457-458; (1944): v Mich 14 NW2d 62 authorities, “After an exhaustive examination we hold that indispensable any position public employ-

five elements are in of ment, (1) order make it a office of a nature: civil It by by legislature must be created or Constitution or created by municipality body through authority by a or other conferred (2) legislature; possess delegation portion it must of a of a the sov- ereign power government, to be exercised for the benefit of the public; powers conferred, (3) discharged, and the duties to be defined, directly impliedly, by legislature through must be or or legislative authority; (4) performed indepen- the duties must be dently superior power law, without and they control of a other than the office, unless be those of an or inferior subordinate created or by placed legislature, general authorized it under the superior body; (5) perma- control of a officer or it must some have nency continuity, only temporary and not be or occasional.” Mich disposition part repealed if final of council This parochiaid, organizations and others education about county al., case inc., Engler (Ingham circuit court v John et 6a, 94-78461-AW) as added Act No. 362 is that no. competent is held court of Public Acts constitutional, effective, jurisdiction or otherwise valid. case) prevents law (statutory is no

There of an predicating from the effectiveness Legislature “legislature of an event. The happening on the act happen- effect upon a valid law to take may enact which contingent, future certain or event, ing legisla- others of that does not involve the exercise cannot constitution- discretion, will and which tive Judge, v Calhoun Circuit ally delegated.” McCall con- on the 319, 323; (1906). Ruling Mich NW 601 not a stitutionality judicial function, of a is a statute has other one. The conditioned Legislature legislative PA 336 Legislature voter action. In 1993 acts on system. The act had a new school finance enacted pas- alternatives, first was conditioned on the two Proposal percent sales the second (six tax), sage A Additionally, if A failed. one Proposal alternative was in had a prohibited assisting a suicide statute that provided prospective repeal for a six provision that legislative-appointed after commission months MCL recommendations to the Legislature. made its MSA 752.1027(5); 28.547(127)(5). constitutional, PA 362

If this Court finds 1993 day. There- part could 6B the next repeal on repealer infringe hold that does not fore, we powers. separation 1997] Council of

Opinion by Cavanagh, J. vn We hold that 1993 PA 362 does not violate art 8, Michigan or art 3 of the Constitution of 1963. repealer Further, we hold that the in 1994 PA 416 is valid and enforceable.23We remand this case to the injunction trial court for it to vacate its and order the Department Treasury payments to make to the operating school academies that were under 1993PA 362.

Mallett, C.J., and Riley and Weaver, JJ., concurred with Brickley, J. (concurring dissenting

Cavanagh, J. in part). agree general I with the conclusion of the majority Appeals majority that the Court of incor- rectly solely focused on the fact that 1993 PA 362 require public body does not that a select the board academy. of directors for each Accord- ingly, judgment I concur in the that 1993 PA 362 is constitutionally separately, valid. I write however, my majority because of concern that the can be read aggrandizement power Leg- as an undue of body plenary islature vis-a-vis the in which and over- arching authority public by over education is vested our constitution: the State Board of Education.

i majority acknowledge authority does pp State of Board Education. Ante, 583-585. However, 23 380.518; provides repeal We note that MCL MSA 15.4518 for the of only. Therefore, by §§ 511 to 517 the revisions made 1994 PA 416 and 1995 PA 289 to the remainder of the Revised School Code are unaffected by repealer. Mich 557 Cavanagh, J. by

Opinion compels analysis emphasis me to focus in its certain authority. ultimate on the board’s majority does not “Our constitution states: legis- requires that control, ‘[t]he it mandate exclusive system support free a of and shall maintain lature public secondary elementary . schools . . concept my p of view, this confuses 572. In Ante, support.” “maintenance] that of with “control” synonymous with the constitu- “control” is The term supervision,” general phrase “[leadership and tional public § educa- 3, in the context 8, art Const legislature “[t]he mandate tion. The constitutional system public support free a maintain and shall secondary elementary Const schools,” imposes obligation primarily § to fund—rather an supervise, responsibility or control— lead, to than a public schools. majority emphasize I not read the that do

I wish to scope Legisla- attempt as an to overstate public authority regard I do education. with ture’s majority susceptible that the think, however, separately reading, fore- write and therefore such possibility. close such a provides majority PA concludes,

As the public school academies control of for sufficient judgment Accordingly, I concur in its bodies. constitutionality regard PA 362.1 of 1993 with to the Legislature’s pronounce I am this is so as evidenced satisfied act, 1278(1) § of the 1995 intent in 1995 PA 289. Under ment of its accredited, must schools meet order for a school to be Furthermore, 1531, pub requirements. under core academic curriculum previously possess teaching As certificate. lic school teachers must majority, 501(1) a is a under noted significant Therefore, public control academies are under school. public bodies. 1997] Council of C.J., J. Opinions by Mallett, Boyle,

n my separately express disagreement I also write majority’s repealer provision with the review of the undisputed matter, 1994 PA 416. As a threshold it is parties challenged that none of the tionality has the constitu- my 1994PA 416 PA In either or 1995 289. opinion, required therefore, we are not to resolve this question, I nebulous and would hold that leave was

improvidently granted on this issue.

Regarding majority’s analysis the merits of the argument repealer provision that the is an uncon- delegation legislative authority, stitutional I would Legislature note that the fact that “[t]he has condi- p tioned other acts on action,” ante, voter does question not answer the whether the can legislative make the ultimate content of a enactment solely judicial contingent on action. The obvious dif- expressly legisla- ference is that voters share in the power, tive as evidenced the initiative and the ref- erendum. See Const art 2, 9. (concurring). agree

Mallett, C.J. I with the ration- majority opinion. agree ale and result of I also Cavanagh’s opinion. with all but n of Justice (dissenting). Boyle, J. This case is about the inevi- table tension that exists between the intent to create schools that are free from the regulation burden of experiments order to allow in improved learning, and imperative the constitutional funds not be private used for purposes. While the Legislature has unquestioned authority to define law what required of public schools,1 privatize and to the deliv- Const 2. 455 Mich 557 Dissenting Opinion Boyle, J. obviously ery cannot make what it services, of certain simply declaring private, public, In it so. creat- is clearly recognized ing schools, charter provided what is for certain indicia of truism and this public. therefore, is how Court, this The issue before necessary comply with the much control constitutional directive. my Michigan charter view, 362, 1993 PA

In prohibition derogates act, the constitutional schools public funding pri- application against aid of Michigan § 2 Constitu- under art of the vate schools authority usurps Board of of the State tion supervise public education Education to oversee and 3. Given that in violation of Const I that the act violates the Mich- observation, conclude igan and I face, and is invalid on its Constitution Appeals affirm the Court of decision. Because would constitutionality and the of of 1994 PA 416 the issue fully subsequent was not briefed or amendment argued I remand case to Court, before this would this development trial court for further of the issue amended acts are consti- whether the 1994 tutionally increasing parental goal valid. The of light in choice in education must be evaluated been a fundamental constitutional directive that has incorporation. goal of this state since before i provides Michigan Article 2 of the Constitution part: support system legislature shall maintain and elementary secondary schools as defined free law. . . .

1997] Dissenting Opinion by J. Boyle, property appropriated No monies or shall be or paid any public utilized, or legislature credit or political agency directly other subdivision or of the state or indirectly any private, to aid or maintain denominational or nonpublic, pre-elementary, elementary, secondary other or school. . . .

The constitutional mandate is clear: “No mon- appropriated paid directly .. . ies shall be or . . . indirectly any private or to aid or maintain ... nonpublic . . . . . . school.” Id. In the view of the by necessity, eyes electorate, and therefore, in the backing nonpublic those elected, fiscal edu- systems, cational no matter how well intentioned, is prohibited by state constitution.

A Approximately twenty-five including states, Michi- gan, and the District of Columbia have enacted char- legislation.2 ter school An innovative and creative bid at educational reform, charter schools are part, schools that are autonomous, at least in from “ regulation.3 ”4 state Called schools ‘that have no proponent rules,’ at least one of charter schools has “ ‘[t]he said that best . . [charter] . schools have near independence total to decide what to teach and how to teach it, whom to hire and how to use their

2 Ante, p 576, n 15. 3 See, generally, Furst, very legal history The short but curious Michigan’s schools, Rep (1996). charter 105 Ed Law 4 Heubert, schools, disability Schools without rules? Charter federal law, paradoxes deregulation, 301, and the Harv CR-CL L R (1997), quoting The White House: Hartford Debate ’96—The First Presi Dole, part 3, dential Debate between President Clinton and Senator M2 Presswire, 8, October 1996. 455 Mich Opinion

Dissenting Boyle, J. operate and how best to hours to resources, what ”5 needs.’ meet students’ necessary by charter The “freedom” deemed flexibility relieving proponents achieved is the regulation.6 7However, from state or local schools legislation the constitu- not circumvent because precisely regulation ele- is that from tion, freedom brings concept into it charter school ment of the potential other- with the constitution. Stated conflict “privatizes” schools, charter wise, if 1993 PA 362 value has been trans- fundamental constitutional gressed. § 2 the viabil- 8, amended, unless art Thus, depend ity will on how the charter school initiative system “public” is under successive acts.

B identify charter was careful to purposes 1963, for of Const schools as schools purposes of Const 8, art 2 and as school districts 501(1). subsection No doubt this in driven the desire to have was in the state school-aid fund created academies share Nonprofit Organized § under art 11. under the Cor seq.-, 21.197(101) poration Act, MCL450.2101et MSA seq.,7public govern el school academies8 are labeled rights responsibilities agencies with all the ment power grant agency.9 inherent in such an acad any public emy board of contracts is vested 5 Schools, Id., quoting Jr., Beating Up New Chester E. Finn On Charter Times, August 24, 1996, p 23. York 6 Id. 7 15.4502(1). 380.502(1); 1993 PA MCL MSA 8 act, public Throughout are referred to as school charter schools synonymously opinion. will used in this academies. two terms 501(1) 503(6). Act subsections

1997] Dissenting Opinion by Boyle, J. board, school board of a district, school community college, intermediate university. or board of state public 501(2)(a). last, In all but the Subsection body is not to issue a contract to charter operate outside the that would enable the school to body’s authorizing district. boundaries of the 502(2). Subsection

Despite public the illusion of control created majority act, and the conclusion of the that “the public through maintains control of the schools authorizing bodies,”10 school academies are by privately publicly selected, controlled rather than subject only elected, boards of directors and are oversight authorizing limited bodies and the State Board of Education. reading

A careful of the 1993 act reveals that body authorizing neither the nor the State Board of power appoint Education has the individual mem academy bers to the board. In fact, the State Board of authority Education has no whatsoever under the supervise statute to selection, retention, academy removal of board Moreover, members. body’s authorizing academy influence over the board process of director selection is constrained under the body only authorizing 1993 act so that the has the authority length to establish the of selection, “method

10Ante, p 576. majority argues that because the State Board of Education does authority selection, retention, not have over the or removal of the mem public schools, bers of the board of traditional then school acade only mies are no different from traditional schools. Had the defect authority in Act 362 been that the State Board Education lacked select, retain, members, or remove school board I would have joined majority’s However, in the result. because of defects Act 362 that say easily overlooked, are not so I am unable to school acade mies are “no different” from traditional schools. 594 455 Mich 557 Dissenting Opinion by J. Boyle, of the board of term, and number of members Once this nebu 503(3). directors . . . Subsection public academy the has established, lous criteria is authority as a member of its board of appoint full academy directors individual it deems fit. The application “qualifications must describe and method appointment for or election of members of the identity board,” and need not disclose the actual proposed board members. Subsection 502(3)(b).12 Moreover, act, authorizing body under the 1993 the has limited recourse school acad against emy if it is dissatisfied with an individual member of academy board. The State Board of Education has even less recourse.13 362, 502(3)(b) requires academy While PA subsection that the application proposed school include “a list of the members of the board of description qualifications directors ... or a of the and method of appointment” members, 502(3)(b) PA of the subsection require academy 502(3)(b) appli 1995 PA subsection that the school proposed cation “a include list of the members of the board of direc description qualifications appoint . . . tors and a of the and method of (emphasis added). Although ment” of board members the Court of Appeals dissenting opinion “requires” states that the 1993 act that all ini approved by body, authorizing App tial board members be 216 Mich 126, 156; (1996), 502(3)(b) 548 NW2d 909 Act subsection does not so require. Therefore, appear body authorizing it does not that an would solely right application application have the to refuse an because merely qualifications appointment described the and method for or elec directors, listing approval

tion of members of the board of rather than proposed members. body’s authorizing general power of recourse is limited to revok ing the charter contract under 507. The Board of Education’s recourse is funding Act, limited to revocation under the State School Aid MCL seq.; seq. However, 15.1919(901) 388.1601et MSA et the 1993 act does not expressly grant authorizing body right an to revoke a contract if the body academy’s authorizing is dissatisfied with a member of the board of body may Instead, authorizing directors. revoke a for this contract only reason if the terms of the contract allow it do so. Act subsec 503(4)(f) tion and subsection 507.

1997] Dissenting Opinion by Boyle, J. authority body authorizing The limited academy State Board of Education to oversee process operations con- is further evidenced provided tract issuance and revocation as under the process by operate which a 1993 act. contract to is set forth in sub- is issued 502(3). issued, section In order for a contract to be it mandatory provisions14 may must include certain only application accepted. be issued after an has been body required Although authorizing the is not to issue any person entity, authorizing a contract to the body, opposed Education, as to the State Board of authority approve has sole a and issue contract.15 provision fact, In no under the 1993 act affords the opportunity State Board of Education an to review an academy’s application or contract before the contract is issued.16 power

In addition to the to issue a contract, the body authorizing given sole, limited, is albeit author- ity grants to revoke the contract.17 Section 507 the 14 362, 503(4). Act subsection 15 362, provision Act 503. The act does include an override the body authorizing authorizing event the does not issue a contract. If the body grant contract, proposed academy petition refuses to a can the place question application board to on a school election ballot to 362, 503(2). be decided the district voters. Act subsection provision body requiring authorizing 1994 PA 416 a includes copy application submit a of the contract and to the State Board Edu days authorizing body cation within ten for a issues contract after academy. 503(3). school Act subsection Even under the new body legislation, authorizing authority contract, has sole to revoke a PA subsection while the State Board of Education’s author ity restricting authorizing body issuing is limited to from new con 502(5). tracts. Act subsection right to revoke a contract n not without its limitations. See supra. 455 Mich 557 Dissenting Opinion by Boyle, J. body power authorizing to revoke contract and provides: part may

A contract issued under this be revoked authorizing body authorizing that issued the contract if the body following determines that 1 or more of the has occurred: academy

(a) Failure of the school to abide goals meet the educational set forth in the contract.

(b) academy comply Failure of the with applicable all law.

(c) gener- Failure of the to meet ally accepted public principles. accounting sector

(d) grounds The existence of 1 or more other for revoca- specified [Emphasis tion as in the contract. added.] issuance, despite As was trae of contract the fact that constitutionally the State Board of Education is man- dated to supervise public education, lead and there is provision no authority under the 1993 act that grants to the State Board of Education to revoke a charter contract.

c public Lack of academy control over the school board of directors, and limited control of the author- body and izing pro- State Board of Education over the cess of contract issuance and revocation are not the only Despite flaws in the 1993 act. public the fact that comply school academies must with “all applicable law,”18academy subject schools large por- are not to public tions of the example, School Code.19 As an 503(5). Act subsection majority asserts that it is evident that “other sections” of the apply; however, majority identify unwilling School Code remains to academy comply. with which sections of the School Code schools must In

1997] Dissenting Opinion J. Boyle, expressly required not to academies are public school Although some, including state certified teachers. use public school academies defendants, argue that teachers, the answer clearly use state certified must What is obvious is issue is less than obvious. to this 1994 PA 416 deficiency was corrected under that this expressly required, sepa- in two when the use certified provisions, schools rate over addition, disagreement In there is teachers.20 with comply academies must public whether school there is no requirements. Clearly, curriculum core requires act that com- express provision the 1993 requirement. Rather, with curriculum pliance academy to public designate act authorizes a incorporation goals “the educational in its articles of issue, majority plaintiffs’ failing eludes assertion that to define this comply public obligated with core curriculum school academies are not to mandates, requirements and leaves that issue and teacher certification majority’s cursory open dispute. that “other sec- for future conclusion apply School Code and that the School Aid Act resolves the tions” question. Instead, what issues discussed in this dissent does not settle the respect public specific which is needed is direction with to sections of apply public example, As an under the School Code school academies. may majority opinion, public required comply school academies Act, specifically with the School Aid requirements but not with the core curriculum public Code. While the School Aid Act does School requirements require compliance with the core curriculum of the Code, 388.1619; 15.1919(919), School MCL MSA failure of the school dis- merely comply requirements with means the school forfeits trict to those percent qualified funds for the school under the five of the total which 388.1619(3); 15.1919(919)(3). Therefore, Aid Act. MCL MSA School monies, percent lose five of its allotted but still be entitled majority Obviously, mandating compliance with of its funds. mandating compliance with core § 19 of the School Aid Act without also adequately requirements might of the School Code not curriculum support nonpublic protect against being aid or monies used to 8, § 2. schools. Const private, denominational, 505(1) 515(1). The Act subsections parochial provides hold a certificate schools act that a teacher must grade qualify in a like that would the teacher to teach 388.553; MCL MSA 15.1923. schools of the state. 455 Mich Boyle, J. Dissenting Opinion academy and the curriculum to pupil be and methods of assessment to be offered 502(3)(d)(ii) . . used . Act subsection (emphasis added). Although the state’s interest in requirements establishing prepare basic citizens to effectively political participate intelligently in the system indisputable, Yoder, is Wisconsin v 406 US (1972); 205, 225-226; 1526; 92 S Ct 32 L Ed 2d 15 Peo- ple DeJonge (After Remand), v 442 Mich 307; 501 unspecified (1993), progress achieving NW2d 127 in goals applicable,” “[t]o is to be assessed the extent using designated including Michigan several tests, Program Education Assessment test. academy obligations

If failure to define the respect schools with to teacher certification and core requirements only curriculum was the defect in Act might 362, the act be constitutional. “Astatute provisions though constitutional it lacks which meet requirements, constitutional if it has terms not excluding requirements, such and in this situation the justified holding court the statute was subject requirements, intended to be to such and that requirements those are to be considered as embodied App 126, in the statute.” 216 Mich 147; 548 NW2d909 persuaded, (1996). however, I am that Act 362 incor- porates express provisions that are inconsistent with comply the conclusion that schools must with the School Code. only part

1993 PA 362 amended 6A of the School Code. Additional sections were not amended bring at that time to the remainder of the School alignment Code into with amended 6A. Inclusion provisions of a limited number of of the state School act, Code in the 1993 and the concomitant exclusion v Governor 1997] Dissenting Opinion Boyle, J. “public failure to include the term school acade-

or provisions necessarily code, mies” other provisions of the School leads to the conclusion fail to mention school academies are Code that academy applicable schools. not regard § is instructive. In this 503 of the 1993 act academy 503(5), subsection Under comply applicable including law,” must with “all but Open (a) Meetings Act, MCL15.261 not limited to: seq.) 4.1800(11) seq., (b) et MSA et the Freedom of seq.) 4.1801(1) MCL et MSA Act, Information 15.231 seq., public employment (c) act, et relations MCL seq.) 17.455(1) seq., (d) prevail- et MSA et 423.201 ing wages seq.) 17.256(1) act, MCL408.551et MSA et seq., (e) §§ 1267 and 1274 of the School Code.21 compliance requiring applicable If with “all law” sub- jected public requirements school academies to the language requiring Code, the entire School com- pliance §§ with 1267 and 1274 of the School Code Inteipreting would be redundant. the statute in such a way principles statutory would violate established every meaning construction that word in a statute has interpreted surplusage and no word should be as nugatory. Twp, rendered Altman v Meridian 439 Mich (1992). 623, 635; 487 NW2d Moreover, if “all applicable law” were meant to include the whole 513(8)(e), Code, the School by subsection as amended 503(6)(e), 1994 PA and subsection as amended PA would also be rendered require competitive Sections 1267 and 1274 school districts to obtain entering purchasing sup when into bids construction contracts and when plies, materials, equipment, single or services where the cost of a transac $12,500 tion is or more. 455 Mich 557

Dissenting Opinion by J. Boyle, interpretation appli- of “all Clearly, this meaningless.22 in the face of traditional notions of cable law” flies statutory construction. wished to ensure that

Had the academy applicable School Code would be entire expressly provided so. Its fail- schools it would have only one conclusion: while acad- ure to do so leads to emy comply are bound to with some restric- schools applicable to all generally tions that are schools, Act, such as the Freedom of Information MCL MSA schools have 15.231; 4.1801(1), independence under 1993 PA 362 from significant coupled private state or local When with regulation. obligations boards of directors that have limited public, answer to the and with bodies and authorizing essentially power- that are a State Board of Education academy supervise organization less to school and operation, academy by schools established private given 1993 act are schools that have been public in hope selected accouterments of schools they that will be characterized as the functional equivalent public Simply put, schools. this “innova- effectively nearly grants tive” act schools independence “total to decide what to teach and how it, to teach whom to hire and how to use their operate what hours to and how best resources, my meet In judgment, students’ needs.”23 the 1993 act facially 2 8, Michigan violative of art Constitution. 22 416, requires part 513(8)(e), PA Subsection as amended 1994 6B

public comply 1263(3) §§ academies with subsection and 503(6)(e), and the School Code. Subsection as amended 289, requires compliance 1134, 1135, 1153, §§ PA with subsection 1263(3), §§ and 1267 and 1274 of the School Code. 23Heubert, supra n 4 at 301. 1997] v Governor Dissenting Opinion Boyle, J.

n public arguendo, assuming, school acade- Even public § 2 under art of the state mies are schools opinion am the that 1993 PA 362 constitution, I by divesting §8, would violate Const constitutionally man- Board of Education of its State authority supervise all edu- dated to lead pro- Michigan Constitution cation. Article 3 of the part: vides in

Leadership supervision general over all educa- in tion ... is vested a State Board of Education. It shall coordinating body general planning and all serve as the legislature . . . and shall advise the as to education requirements financial in connection therewith. leadership Inasmuch as the constitution vests supervisory authority general over all educa- Legis- alone, of Education tion the State Board power lature lacks the to diminish state board author- ity by statute. many already

For of the same reasons that have authority discussed, been of the State Board of Education been over academies has unconstitutionally abrogated under 1993 PA 362. The paramount superintendent role of the of the State only expressly Board of Education has not not been actuality acknowledged act, in the 1993 but has in by the terms of the act. Under PA been limited authority the Board of Education has no to academy application, an issue a charter review con- compliance, tract, revoke a contract for lack of over- approve academy’s goals, pro- see and an educational posed curriculum, criteria, student assessment any authority day. length fact, In to oversee of student 455 Mich 557 Dissenting Opinion Boyle, J. supervise academy activity has been ability body authorizing in the alone. The vested supervise the State Board of Education to lead and ability deny school academies is left to its funding Aid or revoke under the State School Act.24 grants Because the constitution the State Board of general supervisory leadership Education ity author- power schools, over and the to act as the body general planning coordinating for all power segregation funding education, of this mat- ters alone is a violation of the constitution. persuaded ability

I am that the of the State Board supervise public of Education to oversee and educa- Michigan usurped by tion in has been 1993 PA 362. Accordingly, I would hold that PA 362 violates Michigan § art 8, 3 of the Constitution.

m approach being fully I this issue caution, with pre- aware that an act of the must be sumed constitutional unless “no set of circumstances [a]ct exists under which the would be valid.” United Salerno, States v 481 US 745; 2095; 107 S Ct 95 L (1987). Ed 2d 697 I However, that, conclude as writ- ten, no set of circumstances exists under Act 362 that give authorizing would bodies and the State Board of statutory authority super- Education to oversee and vise charter schools sufficient to make these schools “public” purposes of art and 3 of the Con- argue authority To the State Board of Education has ultimate pay over school academies because it can refuse to under the State saying pay School Aid Act is no more than that the state can refuse agent provides. agent right if contract it does not like the services the This payment “leadership” by to refuse no means the State Board of Education. v Governor

1997] Dissenting Opinion Boyle, J. that some 1963. The fact stitution of beyond requirements go choose to academies vali- academy schools does not operating the act in I 1993 PA 362 Therefore, find act itself. date the the Court of and I would affirm facially invalid, the constitu- I believe that decision. Because Appeals amendments, being and 1995 tionality of the 1994 inextricably related PA axe PA 416 and 1995 case, in this issue to be decided to the ultimate constitutionality amendments of those because the Court, I before this fully argued was not briefed court for full case to the trial would remand this issue and retain argument on briefing jurisdiction. case. took no in the decision this

Kelly, J.,

Case Details

Case Name: Council of Organizations & Others for Education About Parochiaid, Inc. v. Governor

Court Name: Michigan Supreme Court

Date Published: Jul 30, 1997

Citation: 566 N.W.2d 208

Docket Number: Docket 106092-106094, 106106-106111

Court Abbreviation: Mich.