Traverse City School Dist. v. Atty. Gen.

Mich 390 390 TRAVERSE CITY SCHOOL DISTRICT GENERAL

ATTORNEY Opinion op the Court — — — Law 1. Constitutional Construction Statutes Technical Rules. statutory apply Technical rules of construction do not to the of a construction constitution. Understanding— 2. Constitutional Law —Construction—Common Intent. primary rule of construction of a constitution is the rule understanding” interpretation “common that should given be minds, it is that great which reasonable mass of [9, 24, [7, 8, 10-12, 20, 23, [43] [44] [46] ^[42] 18] 21, 4] 5, 17, 25, 27, 19, 13-16, 22] 29] 31’ 38] 39] 3] 1] 2, 47 Am 47 Am 47 Am 47 Am 6] 30] 41] 45] 16 Am Jur 16 Am Jur 16 Am Jur 542-547. Am47 39 Am 5 Am Jur 47 Am 51 Am 16 16 Am Jur, Jur 16 Am Jur 26] 16 Am 40] 16 Am Jur Am Am/Jur, Am Jur 47 Am 51 Am Jur, Jur, Jur, Jur, 28] 16 Am Jur 47 Am Jur, Jur, Jur, Jur, Jur Schools Schools Schools Schools 222. References 47 Am 2d, 2d, 2d, Appeal 2d, Jur, Jur, 2d, 2d, Schools Parent and Child Schools §§ Schools §§ Taxation Schools 2d, 2d, 32-37] 2d, Constitutional Constitutional Constitutional Jur, Constitutional Law Constitutional Law Taxation Schools Constitutional 6.§ Constitutional 2d, § § Constitutional Jur, Schools 222. 155. §§ § Constitutional Law Am47 §§ Schools 6. for Points 83, 189, 6-8. §§ 495, 539, § Error § 220, § 620. 222. Jur, Law Law 58 § Law §§ Law* 222. 222. 15. Law 75. Law et Schools 189-200, § 546. 1028. § in Headnotes seq. §§ §§ 1 87. 59. *34§§ § et 417, §§ 335, 338-340, seq. § 87. 87. 222. 222. 338-340. 418. 485-493, Dist. v. themselves, give it; people would intent to be people arrived at who it. ratified Adop- 3. Constitutional of Law —Construction—Circumstances Purpose. tion — that, A rule of construction is clarify constitution to mean- ing, surrounding the circumstances adoption aof con- provision purpose stitutional sought and the accomplished be may be considered. Construction—Interpretation—Valid- 4. Constitutional Law — ity. that, A pos- rule of of a is construction constitution wherever sible, interpretation an that does create constitutional invalidity preferred one that does. 5. Statutes —State School Aid Act —Constitutional Law —Con- Adoption struction —Circumstances —Common Understand- ing Nonpublic —Schools School Districts — Schools— Public Funds.

Chapter 2 of the State Sehool Aid Act is unconstitutional as 19, 1970, December the effective date a constitutional prohibits “directly amendment which the use funds indirectly or school, or nonpublic to aid maintain” a as this

language, light leading read up the circumstances surrounding to and adoption understanding its and the common used, prohibits of the words purchase of educational serv- ices nonpublie from a any with sehool funds and credits 1963, accumulated (Const on or after date are invalid 8, art §2; seq.). MCLA 388.665 et § 6. Statutes —State School Aid Act —Constitutional Law— Nonpublic Schools and School Districts — Schools —Public Funds.

Payments eligible units, chapter as defined of the State Act, School Aid or credits accumulated and are were valid and constitutional, already paid whether disbursed or hereafter out, September 1970, Michigan Supreme the date the Court constitutional, including declared that statute to and 18, 1970, December the date before the effective of a date constitutional prohibits amendment which use “directly funds indirectly aid maintain” a (Const 1963, sehool 2; seq.). art MCLA 388.665 et § § Mich Nonpublic 7. Schools School Districts — School Students— Shared Time —Public School Premises —Public School District —Constitutional Law. A program elementary shared secondary time instruction or educational students, services to offered premises public school, on the of a is not invalidated prohibition in a against constitutional aiding amendment nonpublie school complete since it is under the control of the provides only aid, school district any if incidental (Const 1963, 8, 2). art 8. Constitutional Law —Schools School Districts —Non- public School Students —Shared Time —Public Schools.

A constitutional precludes “support amendment which monies to * * * the attendance of student school” prohibit does not any support nonpublic school to a student from participating program in a shared time at a public school as only it would remotely be incidental to his attendance nonpublie at the (Const 1963, 2). art Nonpublic 9. Constitutional Law —Public Monies — School Stu- Conflicting dents — Provisions —Discrimination—Eree Exercise Severability. Religion Equal Protection — — provision In a in prohibiting public a constitutional amendment money any “to the attendance of student or the em- ployment any person nonpublie at school or at any location or institution where instruction is in whole offered part students”, to such school the clause “or location or institution where instruction is offered part nonpublie whole or in to such un- school students” is constitutional, void and unenforceable it contravenes because religion guaranteed the free by exercise of States the United equal protection Constitution and is violative the provisions laws Constitution; however, of that the unconsti- portion capable being tutional is severable and removed altering pur- that section of the constitution without the pose and effect the balance of the sentence and section (Const 1963, 8, 2). art § Nonpublic 10. and Schools School Districts — School Students— Nonpublic Shared Time —Premises Used as Public School — Schools —Constitutional Law. portion The valid prohibit of constitutional amendment does not nonpublie funds for receiving school students time serv- shared upon premises occupied ices by public lease or otherwise for purposes school authority, operation under the control and School public system by personnel publie school school as a open eligible publie to all to attend a they

school school as though grantor publie are even lessor or is a non- though premises and contiguous school even are adjacent nonpublie (Const 1963, to a 8, school §2). art Nonpublic 11. Schools and School Districts —-Shared Time — by Schools —Control Public School Authorities. portions Prohibitions of the valid of a constitutional amendment proscribe do not shared at a time school where the subject and matter, ultimate immediate control of the personnel premises are under system school open eligible authorities and the courses are all to attend publie (Const 1963, school §2). art Nonpublic and School Time — 12. Schools Districts —Shared Employees. School Premises —Public amendment, C, known The constitutional does not prohibit “incidental” or occasions of shared time in- casual upon nonpublic premises, example, special struction for school employ publie experts limited courses system publie planetarium at a or art instruction collection nonpublie school, prohibit regular of a it nor does visitations publie employees pur- non-instruetional provided the pose they proper of the visitation otherwise are nonpublie regular so extensive as to constitute school as the employees and usual work (Const station of the 2). art Auxiliary 13. Words and Phrases — Services —Statutes—School Safety Children —Health Measures. services, by Auxiliary statutory practical applica- definition and tion, special remedy are designed phys- educational services ical and mental provide deficiencies of school children and physical safety and, functionally, they their health general safety (MCLA 340.622). health and measures Training Safety 14. Words and Phrases —Drivers and —Health Measures —Statutes. training, view, point Drivers from functional general a is a safety health and in measure as the providing state interest driving high instruction age youth is to enable neophyte safely drivers to handle an in automobile order to protect injuries themselves by and other citizens from caused improperly actions of legislature trained drivers and the treats Mich safety rather than an general measure aas drivers education program created the since the act matter educational Michigan (MCLA Vehicle Code to the an amendment was 257.811). Safety Auxiliary and Services —Health Law — 15. Constitutional Time —Public School Students —Shared Measures —Private Schools. Funds —Private Authorities —Public safety having general and measures Auxiliary health services are private only the instruction of an relation to incidental only instruction children; they to educational are related phys- they provide for the by design purpose seek to that they safety physical children or treat ical health and of school so that those children and mental deficienciesof school children they peers; normal are similar to shared can learn like their control private time instruction schools exercise no they by employees performed over them as are under given authorities and the exclusive direction private by statutory direction, school children not an private school; consequently, order administrative prohibitions of a constitutional amendment known as keyed prohibiting passage C which are into funds purposes running into school hands for the operation applicable auxiliary are not services (Const 1963, 8, 2). art Auxiliary Safety 16. Statutes — Services —Health Measures —Constitutional Law. auxiliary auxiliary The clause services act that may legis- include “such other services as be determined give legislature lature” does not a blank check to make safety service a health and measure outside the reach of simply by calling constitutional auxiliary amendment it an (Const 1963, service art §2; §340.622). MCLA Expenditures— 17. Constitutional Law —Construction—Public Nonpublic Purposes Schools —Educational —Governmental Ac- tivities —General Welfare Activities. A constitutional prohibiting public expenditures amendment employment persons schools, nonpublie being part constitution, the educational article of the means employment purposes only for educational does policemen, firemen, include nurses, per- counsellors other sons engaged in governmental, general health and welfare activities as an interpretation place nonpublie would 1971] jurisdiction

schools sovereign outside of Michigan (Const 1963, 8, 2). art § 18. Constitutional Law —Schools and School Districts —Federal Trusts—Auxiliary Funds —Public Monies — Services —Health Safety and Measures.

A prohibits constitutional amendment which monies to private school, aid a the attendance a student at a or support employment person of a sehool does not disallow a sehool district participation in any program special Federal educa- tional in benefits the form of equipment, designed services or educationally deprived aid elementary secondary sehool children, because the nature of the services are similar to auxiliary they services, safety are health measures, Federal funds do not they become monies when are transmitted impressed district but are with agencies trust and must be used state in accordance with guidelines Federal purposes for the for which the funds granted, phrase

were “public monies” the consti- tutional only amendment refers to state resources and does (Const 1963, 8, include Federal 2; funds art 20 TJSC § seq.). et 241a § Nonpublic 19. Constitutional Law —Foster Homes — Schools— Public Schools. they special special children,

Foster homes are institutions for way they private public sehool, no substitute for a “nonpublie schools,” ordinary understanding are not within the term, homes, provide and such incidental educa- services, scope tional “any private, fall outside the denomi- nonpublie elementary national or pre-elementary, other secondary purposes prohibitions for sehool” a con- against public maintenance, sup- stitutional amendment aid port of employment persons attendance and at such schools (Const 1963, 2; 712A.18). art MCLA § Exemptions 20. Constitutional Law —Construction—Tax —Par- ents of Private School Children —Private Schools. providing

A “credit, constitutional amendemnt for no tax bene- fit, exemption designed personal or deduction” was to outlaw exemptions tax parents for school children but not exemptions 2). tax (Const art Mich Exemptions Appropriations—Public Monies — 21. Taxation —Tax —Nonpublic Law. Schools —Constitutional nonpublie not unconsti- exemption granted to a A tax directly indirectly may or “aid or though even it tutional exemptions tax not nonpublic since maintain” the school public monies nor the utiliza- appropriations payments of people intended withdraw and, had the to public tion credit credits, nonpublic exemptions, tax benefits or schools they language in first sen- placed appropriate would have amendment, known of the constitutional as tence (Const 1963, 2). 8, art § Choice oe Law —Parents—Children—School 22. Constitutional —Equal Protection. Proposal C, amendment, as involves known constitutional The by Amend- right, the Eourteenth protected fundamental his choice the school of ment, parent a his child to to send (US quality curriculum standards if it meets the state 14; 2). 8, 1963, art Const, Am Const § Nonpublic Monies — 23. Schools and School Districts —Public Auxiliary Time — Students —Public Schools —Shared School Nonpublic Law. Services — Schools —Constitutional amendment, C, serves the known The constitutional private public expenditures precluding state interest of from shared bar students schools but cannot school, public a as it is unneces- auxiliary at time sary public purpose prohibiting monies to achieve the 1963, 8, 2). nonpublie (Const art Religion—Nonpublic School Districts — 24. Schools School Auxiliary Services Time — Students —Public Schools —Shared Law. —Constitutional C, amendment, serves the known as The constitutional religion sponsorship of preventing state state interest of but is entanglement excessive church and state it between inappropriate deny it be self-evident that would auxiliary services school students access to shared time and (Const public interest schools on basis that state 2). art Equal Time— 25. Constitutional Protection —Shared Law — Auxiliary Nonpublic School Students —Public Services — Schools. receiving in- Excluding private shared time school children from auxiliary public is a struction or denial services at equal right protection; the constitutional this does not but, mean school district must offer them if it public school, offer school children does them at the right have a school students also to receive them at school. 26. Constitutional Law —Classification—Free Exercise of Reli- gion Compelling — State Interest —Private School Students— Auxiliary Shared Time — Services —Public Schools. constitutionally right protected of the free exercise of reli- gion legal is violated when a classification has coercive effect upon practice religion being justified without a com- pelling state and a interest school student has a burden imposed upon right freely his religion exercise his justified by compelling state interests advanced amendment, constitutional Proposal C, known as when he is participation publicly denied auxiliary funded shared time or services offered at the school because of his status as a nonpublie school student and he attends a religious out (US Const, 1; conviction Am Const 8, 2). art Nonpublic 27. Schools and School Districts —Shared Time — Nonpublic School Students —Discrimination—Public Schools — Schools —Constitutional Law. Nonpublie unconstitutionally school students are not discriminated against if shared time instruction is available at nonpublie they but not at long schools so as have access to shared time instruction at the school. Auxiliary 28. Schools and School Districts — Services —Drivers Training Safety Nondiscriminatory —Health and Measures — Basis. Auxiliary general training services and drivers and health safety given nondiscriminatory measures must be on a

basis to all children. Opinion Dissenting Concurring in Part and in Part J.,

T. M. C. Kavanagh, and T. G. Kavanagh, J. 29. Constitutional Law —Certified Questions —Dismissal Nonsuit. questions A case to review on the a constitu- effect certified amendment, Proposal C, tional Tenownas should he dismissed prejudice change people right with as the have the their legal way proper, constitution hut must it m a do and a new Mich satisfy either “election cures errors” called

doctrine fails rejected (Const 1963, 8, law, §2). logic art and should be Concurring Dissenting Part in Part Adams, J. through 4. See Headnotes Meaning. Law —Construction—Plain

30. Constitutional ascertaining meaning rule a court should The follow first give plain to the mean- words in a constitution is effect by people adopted ing it. words as understood who Schools — State Law —Construction—Private 31. Constitutional Transportation Involvement — to Schools. language amendment, known the constitutional as by clearly C, at no involvement the state is aimed might exception schools in it take with the one whatever form legislature transportation provide could (Const 1963, 8, §2). students to school art Nonpublic Schools School Districts — School Students— 32. Shared Time —Dual Enrollment —Public Schools —Constitu- tional Law. elementary programs Shared time or dual enrollment sec- ondary instruction or services to educational precluded students at the is not constitu- (Const 8, §2). tional amendment known art as C Nonpublic Districts — School Students— 33. Schools and School Nonpublic Premises Enrollment — Time —Dual Shared Law. —Constitutional elementary programs Shared or dual enrollment time secondary instruction or educational premises precluded school students on (Const known a constitutional amendment 2). art Premises —Public Districts —Leased and School Schools 34. Determina- Law —Future Premises —Constitutional School tion. premises constitute leased not so-called question whether or The merely premises or are public portion school the a bona fide of a prohibitions con- attempt the to to circumvent a device of Proposal C, amendment, be as should known stitutional left (Const 1963, art case-by-case basis on determination a future 2). 8, § School Dist. Time —Private and School Districts —Shared 35. Schools Nonpublic Monies — Students —Con- Schools —Public Law. stitutional programs private the schools would constitute Shared-time public moneys use to aid such school their or maintain of operations the and would tend to attendance stu- of as, open dents at once the is such door programs schools, simple private a shared-time it would be by matter, programs, objec- the the use such to achieve all of by attempted parochiaid completely tives what defeat people attempted by adopting to achieve the constitutional Propossal (Const 1963, 8, §2). amendment known as G art 36. Constitutional Law —Shared Time —Private School Students —Public Schools. amendment, G, as does constitutional known prohibit students shared-time instruction for public schools, situation, a in the as in the so-called nothing part-time public than shared-time student more a school student and his status is no different of (Const 1963, other student who is enrolled than time less full 8, §2). art 37. Schools School Districts —Students—Public Schools— Nonpublic Schools. public who both Students attend school for study nonpubUc courses both different of given students and a student’s a status at time should be nothing determined the school he attends but there is about justifies attendance at a school or school that tagging belonging exclusively student to one or other attending public school, only portion as a student even day, attending is a school student while of school classes. Meaning 38. Constitutional Law —Construction—Plain —Com- Understanding Surrounding Adoption— mon —Circumstances Invalidity Constitutional —Students—Status. meaning All rules constitutional construction as to the of amendment, Proposal C, constitutional known as are violated place attendance is not used as test student status if (1) give because plain meaning to the failure effect the words the amendment people as understood who adopted understanding”; it—the (2) “common to take failure account surrounding adoption circumstances Mich ignoring interpretation amendment; (3) that an does not and validity by Michigan Supreme Court the create constitutional way interpretation going adopt that does its an out of (Const 1963, 8, §2). art Meaning and Intent —Private 39. Constitutional Law —Plain Equal Protection —Public School Schools —Public Schools — Students —Private School Students. language amendment, the constitutional known as of C, prohibitions private at and the therein contained are aimed expand prohibitions schools and institutions and to the as applying meaning public plain schools runs counter to the language used; and intent the amendment and and of equal protection guarantees require Federal and state programs in the all be made available to offered students, private equal schools, whether or on an (Const 1963, basis §2). art Auxiliary and School Districts — Services —Health 40. Schools Safety Law. and Measures- —-Constitutional being general safety measures, Auxiliary services, are health and prohibitions contained in a con- not within the reach (Const 1963, amendment, art known stitutional as 2). 8, § 18. See Headnote and School

41. Constitutional Homes —Schools Law —Poster Districts —Public Monies. by private a school, whether conducted is a A school foster prohibitions state; therefore, church, home, C, amendment, known a constitutional moneys “to aid or main- against expenditure are pre- nonpublic, any private or other tain denominational against pay- elementary secondary elementary, school” any employ- student or “to the attendance ment any person or at ment of in whole instruction is location or institution where offered precludes nonpubUc part or in to such school students” moneys provide payment homes to foster resides the minor who educational instruction facilities (Const 1963, 8, §2). in the home art Dependent Neglected 42. Infants — Children —Wards State —State Institutions —Poster Homes. Neglected dependent whom children are wards the state to neglected obligation special especially the state owes who, through own, proper no child his lacks home fault of fulfilling atmosphere and, obligation, its some are children placed

sent to state institutions others m homes. foster 43. Schools and School Districts —Free Public Schools —Dis- Neglected Dependent or crimination — Children —Private Schools. responsibility provide schooling to all children is state for responsibility, specifically paragraph enunciated in the first of Michigan an Constitution, legislature article wherein the of required system to maintain and of free * * * elementary secondary and schools without discrimina- religion, race, creed, origin tion to color or national responsibility this cannot be to institutions shifted public expense neglected without undue discrimination as to the dependent or children sent who are to those institutions and thereby relegated schooling wholly to outside the bounds the state’s responsibility (Const 1963, constitutional of 8, 2). art Exemptions 44. Taxation —Tax Law. —Parents—Constitutional amendment, Proposal C, A constitutional known as denies to any parents exemption, including any tax but not to limited exemption exemptions or property, income, sales, use, from franchise, intangibles, inheritance, of,” any “in lieu or other (Const tax 1963, 8, §2). or taxes art Exemptions Nonpublic 45. Taxation —Tax — Schools —Constitu- tional Law. amendment, Proposal C, A constitutional known as does not including deny exemption, to tax but any exemption exemptions property, limited to income, sales, use, franchise, intangibles, inheritance, “in Ueu of,” (Const 1963, other tax or allowed art taxes them §2). 8, Equal

46. Constitutional Law —Construction—Due Process — op Religion. Protection —Free Exercise amendment, C, A constitutional known as does not process equal protection violate due law or the laws guaranteed by the Fourteenth to the Amendment Constitution right religion the United States exercise free rights guaranteed other enumerated the First Amend- ment to the appli- Constitution United States as made Michigan through cable the State the Fourteenth Amend- Mich (US Const, the United States Ams merit the Constitution 1, 1963, 8, §2). 14; art Const question Traverse, from Grand James Certified January (No. Fitzpatrick, 5,1971. J. Submitted M. 53,144.) January Docket No. Term Decided 1971, March 1971. 31, City

Complaint by Traverse School District Attorney seeking against others, General regarding judgment declaratory amendment to an existing 2 in relation to 8, art Const provided by auxiliary services time and shared non-public plaintiff reside within students who for Request by William G. school district. Governor pursuant answers to Milliken, GCR concerning questions constitutional certified others inter- School and amendment. St. Francis Crampton Henry Richard as defendants. vened plaintiffs. to certified as Answers others intervened through questions for circuit court certified to opinion. Supreme disposition Court in accord with plaintiff. Running, Wilson, <& for Wise Kelley, Attorney A. Robert General, Frank J. Derengoski, Bienen- General, Solomon Solicitor and Eugene Krasicky, Searl, Maxine A. and Russell feld, Attorneys for General, defend- Virtue, B. Assistant ants. R. McCormick; Blakeslee <& William Con-

Hubbell, George sedine, Reed, Allred, Vincent and E. C. (Shea N. é and Scanlan Gardner Charles L. Alfred counsel), intervening Whelan, of defendants. for (by Ell- Dill Erwin B. Levin, Levin, Garvett <& Sagen- Hoekenga, K. mann, G. and Wallace Daniel dorph), intervening plaintiffs. School op the Court

Amici Curiae: League Michigan (by Women Voters Atkinson). Y.

Yvonne Laing (by MacLean, Seaman, é Oakland Schools Guilford).

Michigan Association School Administrators Michigan (by Association of Boards and School Laing Guilford). Seaman, MacLean, <& Lansing Board of Education of School District (by Mackay). Newman & declaratory This from a J. case arises Williams, judgment brought City suit, the Traverse against District in 13th Circuit Court Attor- joined ney appropriate par- and all General, validity Attorney interest, ties test (OAG opinion, 4715) General’s issued on November 3, 1970, which construes the constitu- C, prepared by tional amendment initiative Council Against forbidding public Parochiaid, monies for auxiliary expanded by shared time questions counterclaims to include cross-claims impact upon private C’s fosterhomes, programs Elementary I Title Secondary under the Federal exemp-

Education Act of 1965 and tax tions for schools and the Federal constitu- tionality properly C. The came case pursuant before this Court to General Court Rule request by on 797 the the Governor to consider specific questions public importance seven of relat- ing Proposal to the construction of C. This Court certify the ordered Grand Traverse Circuit Court to questions, these seven and in its added discretion eighth question an related con- which will not be Mich op the Court subject matter of it became here, as sidered Secretary companion State case, Carman of (1971), 443. 384 Mich supra, Secretary State, this Court

In Carman v. November 1970 referen- result held language add the on C was to dum paragraph as of Article C a second Michigan This instant case Constitution. question of the construction therefore raises originally § 2 as amended. Article Article as read follows: sup- legislature shall 2. The maintain

“Sec. elementary system port of free and second- Every ary schools as law. district defined pupils provide without the education of its shall discrimination for religion, color or creed, race, origin.” national following paragraph: C added the appro- property shall be or monies “No any

priated paid utilized, credit or or political or subdivision legislature other or indirectly directly or agency to aid or of the state any private, non- or other denominational maintain secondary elementary, or pre-elementary, public, exemption payment, benefit, credit, tax No school. grant subsidy, or loan voucher, or tuition deductions, provided, property shall be monies or directly any any indirectly, attendance or any person employment at or student in- location in in whole offered where instruction is stitution legisla- part students. to such transportation may provide students ture any school.” v. op Opinion tee Court I. RULES OF CONSTRUCTION requires This case the construction of constitu- statutory tion, where the technical rules of construc- apply. Maryland (1819), tion do not McCulloch v. (4 Wheat) (4 579). 17 US 407 L Ed primary The rule is the rule of “common under- standing” Cooley described Justice : people “A constitution is made for the people. interpretation given that should be it great is that which minds, reasonable mass of people give themselves, would it. ‘For as the Constitution does not derive its con- who force from the people vention which but from the framed, ratified to it, intent be at is arrived that people, supposed they and it is not to be that have meaning looked for dark or abstruse in the employed, they accepted words but rather that have them in the sense most obvious to the commonunder- standing, and ratified the instrument in the belief designed conveyed.’ that that was the sense be (Cooley’s 81).” (Emphasis ) Lim Const added. (See quotations understanding” also on “common per opinion companion in curiam Carman supra.) case, clarify meaning,

A second rule is cir- surrounding adoption cumstances aof constitu- provision purpose sought tional and the to be accomplished may point be considered. On this following: this Court said the construing provisions “In constitutional where the meaning may questioned, be the court should have regard leading adop- to the their circumstances purpose sought accomplished.” tion and the to be Kearney (1915), v. Board State Auditors Mich 666, 673. Mich op the Court possible interpre- an wherever rule is that A third invalidity not create constitutional that does tation preferred Mar- one that does. Chief Justice Marbury fully thought pursued shall this (2 Cranch) 60), (1 (1803), L Ed 5 137 Madison US quote part: in which we render the clause construction would “If other reject

inoperative, ing an additional reason that is * *# .” construction, other

II. THE AMENDED ARTICLE EFFECT OF § 1963

8, OF ON 2, CONSTITUTION 100 2, CHAPTER ACT OF 1970 Constitutionality Advisory In PA re (1970), 100 1970, No 384 Mich held 82, we that the Michigan prohibit pur- did not Constitution public chase with funds secular educational serv- nonpublic ices from a school.1 by Proposal § Article now 8, 2, C, as amended prohibits “directly public in use funds directly nonpublic to aid maintain” a school. light language in the The of this read amendment, leading up of the circumstances to surround ing adoption,2 understanding its and the common 1 concept purchasing The of the state secular educational services implemented ways. in schools has been various Mich igan implemented by paying public eligible nonpublic it monies to pay portion lay taught schools to secular of the salaries of teachers who subjects 1970, 100, in the PA No 55- school. §§ (MCLA 388.665-388.676a; 66a Stat Ann Current Material §§ §§ 15.1919[105]-15.1919[116a]). This is similar to the Bhode Island provides salary supplements lay statute which in to teachers systems in competitive order to attain salaries with those of system. Pennsylvania provides public The statute elementary parochial reimbursements penditures ex schools for the actual they purchasing incurred in education services for secular regard layman without to the fact whether the teacher was a or a religious of a member order. 407 Opinion op the Court with purchase, used, prohibits words from a non of educational services funds, school. early Houghton, in as 1921. held classes were time Shared Eugene Krasicky Attorney to Donald General Assistant (Letter from 26, Supreme Court, p [January Michigan Winters, Clerk of the

F. Attorney response from office was a General’s letter This 1971]. 25, January 1971, asking long how shared request of Mr. Winters’ They Michigan.) State of programs have been conducted time seem to parts in various of the state ever since. available have been Attorney Eugene Krasicky General to Donald Assistant (Letter from 1, Court, Michigan Supreme pp [January Winters, Clerk F. Code, 502, 503; also, 1944, pp Stipula- 26, Administrative 1971], see 17, 17e, 17f, 17h, 17k, 21, 28.) 8, paragraphs tion of Facts services, auxiliary goes transportation, a form of baek over- Bus years thirty No only interruption. (PA district years two with requiring public sehool present statute The 38. transportation for both sehool provide children bus 15.3590(1)]. 1968 Rev MCLA 340.590a Ann See [Stat § § history of bus transporta- MCLA 340.590 for the Note to Historical § Michigan.) training Drivers was initiated 1955. tion acts 1; Legislative present PA (1955 Extra Session for the state of the 9.2511].) law, general auxliary present MCLA 257.811 Ann 1968 see Rev [Stat (PA aet dates from 1965. No 343 340.622; 15.3622].) Ann Rev Stat 1968 [MCLA § § continuing have been an for children also old and Federal assistance sehool is story example, programs in this state. For hot lunch (National Aet, 1— popular in state since 1946. School Lunch the §§ 1751-1761, 13, amended, 60 as 42 Stat 230 USC The National School 4, provided Lunch Aet was enacted on June for 1946. It Federal funds for and sehool If private lunches both children. by any agency permitted was not educational local law to state paid nonprofit state, private funds to it to schools in the disburse Secretary Agriculture pro the rata share of the was authorized to disburse the directly private funds state in that for schools.) private Federal under Ele- monies the Federal Secondary Aet have been mentary public Education available to and Elementary private (Title 1965. I schools since of the and Secondary largest Education 1965 which the and Act of is program single program in Federal education the issue and seq. et in 20 241a relevant this ease titles of the promoting found USC other § Secondary Elementary II and Education Act Title seq., library in 20 351 et III found Title USC § seq., in 20 1201 et and IV found USC Title for for adult education § in handicapped children 20 1401 et found USC the education seq. § Ann MCLA 1968 Rev for Mich- See 388.801 [Stat § § 15.2091] investing Superintendent igan the of Public Instruction with law necessary authority any to take action to receive Federal the the grant-in-aid pro- districts Federal available sehool under funds Elementary specific Secondary to the grams. For reference MOLA 388.1031 Ann 1968 Aet see Rev 15.1025 Education [Stat § § (!)](cid:127)) Mich 390 Opinion op the Court hold Chapter we Act PA Accordingly, 2, 100, of December 1970, 19, unconstitutional the 1970, date of the amendment, effective credits on after that accumulated date are invalid. judges authority Probate have been invested with place the delinquent neglected in children fosterhomes for their care and expense (1907 Legislative at state since 1907. education Session Extra 6; present see, PA as to the state law MCLA 712A.25 § (598.25)].) Ann 1968 Rev 27.3178 Real personal prop- [Stat § erty quarters exemptions nonprofit, private tax for schools date back over three- century beginning (See in 1893. Note, Historical 7.7].) MCLA Ann 1960 211.7 Rev [Stat nonpublie Unlike these earlier forms of aid to schools and children, steps leading up the to the enactment of paroehiaid and serious consideration of tuition parents attending private'schools of children developments are recent on the Michigan began culminating scene. The in passage events the paroehiaid Michigan in Study 1967 when the proposed by Finance Education, by the ducted legislature State Board of funded and con- Dr. Allen J. Thomas recommended additional state aid for Michigan private (Dr. Thomas, schools. J. Allen School Finance Study [Michigan Department Education, especially See 1968]. 8, Chapter Michigan.”) “Non-Public in Schools legislature joint In study created committee to question of aid to schools. The committee recommended to legislature paroehiaid. (A Report that it enact and Recom- Legislative mendations the Joint Committee on Aid to Non- Schools, January 16, Public Bill especially pp 25-30.) 1969. See House embodied committee’s recommendation was by eight defeated votes the House. Two unsuccessful bills were during legislative introduced the 1969 designed give session tax paying parents relief to tuition Senate attending private of children schools. provided Bill any person for a tax credit for paid who elementary secondary tuition for students in schools. grades proposed Bill House taxpayers individual be allowed to tuition, subtract the cost of books and fees for college adjusted gross from their income to determine taxable Michigan income for the income tax. Subsequent paroehiaid, to the House defeat of the Governor created on Educational Committee Reform. The Committee recommended legislature paroehiaid. (Report that Commission enact the Governor’s Reform, on Educational September 30, especial- 1969. See ly p 15.) Bill Senate which included the committee’s recommen- Governor, adopted passed by dation was Senate the 1969 Foreseeing approval, session. lion $22 House the Governor included mil- budget in his estimated for paroehiaid state 1970 to fund the During February 1970 approved paroehiaid. scheme. of the House joint The measure was sent to a House-Senate conference committee. prior aid, In paroehiaid contrast to the of generated forms state controversy legislature. heated the February both inside and outside the It took legislature years over two to enact it. When it clear in became legislature pass paroehiaid, of 1970 that group the would a v. op Opinion the Covet made credits ac- units eligible Payments and 1970, to includ- September 1, cumulated and were and are valid 18, 1970, December ing or here- disbursed already whether constitutional, Advisory re Constitution- out. paid after ality PA No 1970, 82. Mich (1970), of petitions Against con- Parochiaid circulated called Council of citizens They language succeeded present C. taining the signatures place proposal on the obtaining the ballot sufficient 3, However, the general on November 1970. election for the next State Board grounds certify on the it the of Canvassers refused But, Michigan Appeals in a Court of defective. the petition was Against by Paro- brought members of the Council aetion mandamus Secretary Proposal C on ballot. ordered the Carman chiaid App (1970), 26 Mich 403. State 14, 1970, important deci- September this Court rendered two On upheld appeal Carman the constitutional leave to and sions. It denied Constitutionality Advisory Opinion re PA validity parochiaid. by Thus, date (1970), 384 Mich 82. it was clear No 100 paid Michigan. Indeed, were out parochiaid was law funds that under the Michigan following parochiaid scheme the decision accepted It eligible private schools who the aid. Supreme Court to against challenge had its was also clear that ready the Council Parochiaid Proposal C fall ballot. in the form of on the 3, 1970, stage on November for the was set for the election they judgment on C. speak their when voted voters supporters opponents of media and even the active and The news Everyone Proposal.” Proposal C referred to it as the “Parochiaid agreed proposed designed parochiaid and amendment was to halt adopted. if would have that effect impact have on What was unclear the amendment would was During campaign other forms of state aid to schools. contradictory barraged on what effect the voter was the to the advice of the with statements Pursuant proposal would have on these various forms of state aid. Attorney General, Milliken and both Governor Instruction, Porter, Acting Superintendent Public John W. adoption publie made would students, of the exemptions the amendment statements to the effect that auxiliary nonpublic programs service for sehool terminate jeopardize availability under I of Federal funds Title Elementary Secondary end tax and Education Act exemp- including property tax schools Michigan tion secured to Article Constitution, sewage possibly protection police as well as affect fire paragraphs 2 (Stipulation Pacts sanitation services 3). Ellmann, spokesman Against Parochi- Erwin B. for the Council amendment, aid, drafting who, lawyer, played key role Mr. took issue with the statements of Governor Milliken and Porter. Michigan electorate, he published In letters to Mr. Porter and the or bar said C would not terminate shared time services; only receiving auxiliary it would limit school students from 384 Mich 390 410 Opinion op the Court

III. AMENDED ARTICLE EFFECT OF OF ON CONSTITUTION TIME SHARED Certified No. 1 is as follows: question tlie through Does C Proposal preclude provision, of ele- shared time or dual enrollment programs, mentary or secondary or instruction educational non- services to school students at any or public school at or any other location institution where instruction is offered whole or part such nonpublic school students?

Answer: At the public on school, no; leased premises, not on necessarily; nonpublic school prem- ises, not necessarily. auxiliary shared time and school. services to the those offered proposal funds, Nor would the off jeopardize cut Federal protection police sewage fire or the or and sanitation services terminate property exemption according (See tax to Mr. Bllmann. Exhibit A brief.) and Exhibit B of Intervenors-Plaintiffs In many newspapers addition these statements editorialized on impact proposal what the would on have the various forms of state aid presented schools. Often these editorials alternative interpretations Proposal (See Appendix 0. 1 of Intervenors- brief.) Defendants As as far the concerned, pre-election voter was result all the talk was an concerning Proposal and action simply 0 Proposal was 0 this — anti-paroehiaid amendment—no run parochial monies to beyond schools—and that all complete else was utter and confusion. On 3, 1970, proposal adopted November was the electorate by a of: 1,416,800; 1,078,705. vote paroehiaid As far as Yes— No— concerned, rejected was the voters it. day On Attorney the election the General issued formal opinion 4715 interpreted language 0 ter-

minating shared cancelling auxiliary time and services for Although opinion school students. an Attorney of the General is binding interpretation not a follow, of law which courts must it does the allegiance Kavanagh, command agencies. (Fowler of state v. Mich, 1944], 167; F Supp Company Depart- Detroit [ED Edison v. ment 506; Revenue [1948], David Mich Walcott Kendall City Memorial School Rapids [1968], 231.) v. Grand App 11 Mich Thus, the State Board of Education-announced its intention to follow opinion Attorney of the City General. This led to the Traverse School challenging validity District Attorney General’s interpretation O. Opinion op the Court requires of Article paragraph 8, § first non-discriminatory of education. The system second of Article paragraph, part 8, § against appropriation contains five prohibitions indirectly monies or its directly equiva- lent. The prohibitions five are: 1. No “to aid a non- public money or maintain” school;

public “to 2. No public support the attendance money school; student” at any nonpublic 3. No one at public money a non- employ any school;

public 4. No public money the attendance of support student at

any any location where is instruction offered a nonpublic school student.

5. No public money support the employment

any person at location where instruction is any offered to a school student.

This Court must construe whether time shared services3 to nonpublic school students are prohibited 3 Authority for programs local school districts to initiate shared time following statutory language: is derived from the “Every carry grades, board shall establish and on such schools and departments nance neeessary as it shall for deem or desirable the mainte- schools; improvement study of the determine the courses of pursued pupils to be to be and cause attending the in school such district taught departments may in such expe- schools as it deem (MCLA 15.3583].) dient:” 340.583 Ann 1968 Rev [Stat £ good description As as shared is time found in the United Report States Senate subject, Education Subcommittee on that reads: generally in “As used in education, current literature the field term arrangement the ‘shared time’ means an pupils for in enrolled nonpublic elementary secondary public schools to attend * * * subjects for instruction certain The shared time provision is public or would be school parochial instruction for pupils subjects (but widely regarded universally) not being mainly entirely secular, laboratory such as science home (Staff economics.” Welfare, of Senate Comm. on Labor and Public Proposed Congress, Session, 88th 1st Federal Promotion “Shared Time’’ Education 1.) Print p [Comm. quotation As this indicates, operation whereby shared time an is general district makes available courses its cur- riculum to normally both on students premises of the school. Mich Opinion op the Court mentioned above. five prohibitions under three head- be considered question will This : ings public school. time —at the

1. Shared construes Pro- General’s Opinion Attorney at time services shared prohibit C to posal as follows: public school funds could amendment,

“Under attendance used to be where or institution location ‘any school students to non- or in part offered in whole is instruction (Emphasis supplied.)” students.’ public school free shocking This It both result. violates provi- equal protection and the religion exercise of (See Part the United States Constitution. sions of VIII.) applying reasons necessity

These evoke a consequence, As I). (Part of construction rules is there whether this Court is question before to that constitutional construction an alternative Opin- General’s Attorney in the aforesaid adopted preserves purpose which also ion, for more accepted of American life has been an fact time Shared years. Indirect Aid to Parochial forty (Note, Shared Time: than Schools, tional Experiment Watkins, in Educa [1967]; L 1224 65 Rev Mich [1965]; Sharing, 43 Staff of Senate Religious 60 Education Welfare, Congress, Session, 88th 1st on Labor and Public Comm 1 Proposed “Shared Time” Education Federal Promotion [Comm Welfare, 2; Health, Dual Dept & p Education Print US 1963] [1965].) 5 Schools Enrollment in Public Non-Public & require therefore, analysis, it would of historical On the basis really strong outlaw shared showing that C did intend to long accepted in become a public because that had time (New [1921], years. Eisner practice 256 US York Trust v. over a number of 963, 660]; 345, L Walz v. 349 S 65 Ed 16 ALR Ct [41 City [1907], 678 New York 397 US Tax Commission of 697].) 1409, 25 L S Ct Ed 2d [90 15,000 Stipulation in over of Pacts this ease indicate that pro- in Michigan nonpublic participate time school students shared grams public 2,500 premises public schools, at leased about nonpublie schools, nonpublic schools from 800 at schools. and about (Stipulation paragraphs 21, 28.) Pacts Opinion op the Court proscribing parochiaid and, of course, /con- is understanding sonant with a common of the lan- guage already used in 0. This Court has problem Advisory Opinion considered a similar Constitutionality (1970), re PA 1970, No adopt Mich 82. This Court there refused to “a primary ‘no strict benefits, or incidental’ rule” and * * * people found “no evidence in- (Article they adopted tended such a rule when this 4) provision §1, of the Constitution.” The same reasoning applicable “support” is to the terms prohibitions the second, third, fourth fifth prohibition. “aid maintain” the first comparison parochiaid A of the act, this prohibition proscribes, first and shared time which prohibition proscribe, this illuminating does not prohibition. as to the construction of the by Chapter Parochiaid as authorized 2 of PA provided public No 100 $22,000,000of monies participating nonpublic for portion pay school units to private lay salaries teachers of nonpublic nonpublic secular school courses in the school for shared time school students. In contrast

provides public public monies local public school districts to use hire school teachers public to teach school courses in schools to

students. parochiaid sig-

Shared time differs from in three respects. parochiaid nificant First, under paid private agency funds are whereas under paid they public agency. shared time to a parochiaid permitted Second, the school to lay choose and a to control teacher whereas under public shared time the school district chooses and parochiaid permitted Thirdly, controls the teacher. subjects the school to choose the to be Mich Opinion op the Court long they taught, secular, whereas shared are so prescribes system public the school the time means subjects. public differences in control These school significant. legally program Obviously, on offered the a time shared complete public premises is school under public in- district and is not school control against aiding prohibition by the first validated nonpublie time instruction such since shared school any. provides only if The second aid, incidental precludes public prohibition monies * * * any “support student attendance of Any support nonpublic any school.” such at pro- nonpublic time from a shared school student participates public gram in which he at school only remotely to his attendance incidental would be prohibited. school and thus at the public money employ prohibition, no The third question. anyone not here in is school, at a particularly and five are based four Prohibitions portion of the money sentence of the second on the last public paragraph 2—no of Article second any or the student attendance “to any person employment in or institution where location or at part non to such in whole or struction is offered added.) (Emphasis public plain students.” language meaning non is that when of this go school, a school students instruc where an “institution becomes * # * nonpublic school to such offered tion is ineligible monies. and hence students” quoted language free exercise contravenes This religion guaranteed Con States United equal protection of stitution and violative provisions States Constitu of the United the laws (Part VIII.) tion.

1971] 415 Opinion op the Court portion hold that

We of the sentence second quoted § 2 Article hereinafter unconstitutional, void and unenforceable: “or at location or institution where instruction is offered in whole or part nonpublic to such school students.” quoted portion hold,

We however, that capable being severable and removed Article altering § purpose 8, 2 without and effect of the balance the sentence and section. upon premises.

2. Shared leased or other Time— occupied by public Premises lease or otherwise purposes authority, school operation under the control and public system by public school personnel public open as school a school to all public eligible public to attend a school are schools. though grantor This is even true the lessor or is a nonpublic though premises school and even contiguous adjacent nonpublie are to a school. Nonpublic receiving school students shared time in services under such circumstances are the same position public as such at students other form of rights school and entitled to the same and bene- Consequently, already por- fits. tion the valid noted, prohibit Article does not funds for shared time under such conditions. nonpublie

3. Time—at the Shared school. provided time be Shared can a school system only appropriate under conditions for a public school. This means that the ultimate and subject per- matter, immediate control premises sonnel and must be under the system open authorities, courses to all eligible to attend a school. prohibitions conditions

Where such exist the portion amended valid Article do not proscribe nonpublic shared a time at school. Mich op the Court prohibition monies “to to the first As —no school—shared time aid or maintain” provides only aid, incidental any, under such conditions if public defined the first school, as a as of control paragraph of section. this public prohibition monies “to second As to the —no # #* any support at of student the attendance nonpublic any time at a non school”—shared such public control as a under conditions of school such paragraph public first of defined the school, as support provides only to the incidental section, this nonpublic a non school student at attendance of a public school. As to the third ^{[*] [*] [*]} prohibition the employment —no public any monies “to person supports nonpublic time school”—shared

at public employment at teachers the the public school they check, their school draw where perform they some or all of their where location periods may longer shorter or time services for nonpublic of con- under such conditions be school para- public as in the first trol defined school, graph not alter the location of section, of this does employment. to our “control” their This conforms purposes and the amendment construction (see VII) adopted. for which it Part was or not all the school standards

Whether beginning this exist, of this section described at the prohibit “in- C does not finds that Court time instruc- cidental” casual occasions shared premises, example, upon nonpublic tion school experts employ special in the limited courses system public instruction school planetarium nonpublic or art collection of a school. regular prohibit C visitations Nor does pro- employees non-instructional 1971] School Dist. Court purpose of the vided proper visitation otherwise they are not so extensive as to constitute regular school as the and usual work employees. station of the special It should be needless to observe circum- may not considered above create stances unconstitu- religious entanglements, tional but shared time and of itself not. does

IV. AUXILIARY SERVICES question 2No. Certified is as follows: preclude provision Does auxil- (as iary PA defined in Section of Act 629, being being PA Section 1 of Act Compiled 1948) Section 340.622 Laws of school students at or at other location or institution where instruc- part tion is offered in whole in such school students?

Answer: No.

Auxiliary by services are best described the stat- Michigan ute which introduced them into the educa- system. tional The statute reads: “Whenever the board of education of a school provides any auxiliary spec- district services ified in this section to of its resident children in elementary high grades, attendance in school provide auxiliary it shall the same on services an equal basis to school children in attendance high elementary grades non-public school at may schools. The board of education use state pay school aid funds for district auxiliary auxiliary services. Such services shall nursing include health and services and examina- crossing guards tions; street services; national de- 384 Mich the Court services; speech correc- act testing fense education for delinquent teacher services services; visiting tion serv- diagnostician school children; and disturbed children; teacher handicapped mentally for all ices chil- handicapped for physically services counsellor hand- for mentally consultant services teacher ; dren children; remedial disturbed emotionally icapped deter- be may services other and such reading; services auxiliary Such mined the legislature. and reg- with rules accordance provided shall be board of educa- the state promulgated by ulations * * * Ann 1968 340.622 [Stat .” (MCLA § tion 15.3622]). Rev § an defined “on of Education Board State to mean:

equal basis” shall the services be means that basis’ “(c) ‘Equal to nonpublic school at the made available regular pub- established during school children 1964-1965 Code (Administrative lic school day,” R AACS, 340.291). application,4 definition statutory practical

By services educational services are auxiliary special mental deficiencies physical designed remedy their physical provide children and implementation Stipulation of details actual 26 of the Facts Item auxiliary It states: services. ** * act, auxiliary non- provisions services “Under nonpublie approved state students in attendance at those of the Roman Catholic operated with or affiliated variety auxiliary Michigan receive faith the State of through expenditure of by public provided school districts Specifically, primarily their attendance. funds tests; hearing nonpublic schools receive 67,695 at such children testing; 79,630 nonpublic schools receive vision at such such children examination; physical receive 3,364 schools children at participate or receive the 28,207 schools children at nonpublie 3,764 crossing guards; children at such services of 8,831 nonpublic schools nonpublie schools reading; at such such children receive remedial correction; 1,713 speech children at receive services; 1,265 diagnostician at such school children receive schools are being by visiting teachers.” serviced v. Attt. Opinion op the Court safety. Functionally, they general health and are safety health and measures. training, point

Drivers from a functional of view, general safety is also health and providing driving measure.5 The state interest in to instructions high age youth neophyte school to enable drivers safely protect handle an automobile order injuries and other themselves citizens from caused by improperly actions trained drivers. legislature gen

The treats drivers education as a safety eral measure rather than an educational training matter. The act which created a drivers program was enacted as an amendment to the Michigan specific Vehicle Code. act The amended * * # provide “An was entitled act for the licensing operators examination, and control of chauffeurs.” prohibitions impact no C have

upon auxiliary auxiliary services. Since general they are health and measures, welfare have only an incidental relation to the instruction private They school children. are related to edu- only by design cational instruction in purpose they provide physical seek to for the health safety they physical of children, treat and mental deficiencies of school children so that peers. such children can learn their like normal Consequently, prohibitions C which keyed prohibiting passage into purposes funds into school hands for 5 According to statute drivers training: “ * * * district, shall be conducted the local open and enrollment driver education shall courses be to children high grades enrolled public, parochial youth. schools as well resident out-of-school Reimbursement local school districts shall be on the application made basis of an made superintendent the local school district depart- to the state ment of (MOLA education.” 257.811 Ann 1968 Rev [Stat 9.2511].) Mich op Opinion the Court appli- running private operation are not only incidentally auxiliary which cable to services private operation educating involve the children. auxiliary are similar services

In addition private exer- schools instruction time shared They performed by are them. no control over cise public employees direction of under exclusive private given are authorities by statutory an adminis- not direction, children a school. order trative and that caveat must one we voice However, entanglement possibility between of excessive auxiliary offered services are when church state auxiliary services school. Since at the safety in- general rather than measures health and possibility of excessive measures, structional religious affairs is, of the state involvement most, at minimal. course, regarding auxil- this holds Of what Court course, iary services enumerated is limited to those services auxiliary act. The in the act clause in the auxiliary include services shall states that may by “such other services be determined legislature legislature” give blank does safety meas- service health and check to make calling simply ure the reach of outside auxiliary it an service. against public prohibition do not

We read the persons expenditures employment policemen, firemen, schools to include persons engaged in other counsellors and nurses, governmental, general activities. health and welfare interpretation place an would Such sovereign jurisdiction of the of the State outside Michigan.

1971] op the Court employment part

Since the stricture is educational article of the constitution, we construe employment it purposes to mean for educational only.

V. FEDERAL FUNDS question The third certified is as follows : preclude moneys, Does C use federal Michigan made through available to the State of Elementary I Secondary Title of the and Education being seq., Act of 1965, 20 USO, Section 241a et for purpose providing elementary secondary nonpublic instruction or educational services to any nonpublic school any students at school or at other location or institution where instruction is part offered in whole or in to such school " students ? Answer: No. grants

Federal are made available to local school Elementary districts under Title I of the Federal Secondary (hereinafter and Education Act of 1965 A) programs special cited as ESE to fund educa- equipment, tional benefits, the form of services or designed deprived educationally which are to aid grants children.6 The to a school district conformity plan to a submitted the school dis- subject trict to obtain Federal funds are to the requirement that: *“ # # to the extent with num consistent educationally deprived ber children in the school agency district of the local educational are en who private secondary elementary rolled in schools, agency provision including special has made 6 Elementary and Secondary Act, I, Education Title 79 Stat 27 (1965), amended, as 20 USO 241a-244. §§ Mich 390 Opinion op the Court (such arrangements services and educational dual television, radio educational enrollment, equipment) in educational services and mobile participate;” ESEA, Sec children can which such 241e(a)(2) (1965), 205(a)(2), 20 USC Stat (Supp 1965). language question C is,

The does the “public prohibits “aid” monies” “support aat of a student school, attendance” “employment” school encompass person aat make avail- where districts situation special both services to able educational required condi- under the school students grant. of a Federal hold it does not. tions We adoption does disallow a participation in Federal district aiding program ele- I of ESEA for under Title secondary mentary children. and First, Two lead this conclusion. reasons special nature of the services similar educational auxiliary character of the educa- services. The programs I Title was tional made available under described as follows:

“Although far com- statistics are available plete, projects appears I it the bulk Title that of type service, involve some of non-instructional reading speech therapy. The simi- remedial ** * larity projects actually implemented of part of seems to indicate on belief educators problems the solution of educational deprivation ‘compensatory’ lies educational serv- special ices, which instruc- services offer the student enabling subject, thereby tion in proceed a skill him to (Comment, peers.” same rate as his Elementary Secondary The and Education Act— Implications Theory The the Trust Fund Dist. v. op the Court Questions Raised Title 65 Mich Church-State shown.) [1967]) (Footnotes not 1187. L Rev appraisal indicates, these educational serv- As this safety general health measures similar ices are auxiliary found we have nature to permissible under C. to be “public do become Second, the Federal funds they from the Office when are transmitted monies” Department Health, in the Educa- Education through Board of Educa- tion and the State Welfare school district. Instead tion to impressed with a trust must Federal funds are agencies in with Federal be used guidelines state accordance purposes for for the which the funds granted. were when confronted with Other courts question grants in aid of the status of Federal to the states have determined that a education serving with the funds as the trust arose Federal agency, which administers the res and the state program, serving as Montana State Fed- trustee. (D No 1 District Mont, eration 1934), Labor v. School University Supp F Ross v. Trustees (1924), (228 642). Wyoming Wyo P “public phrase C, used monies” prohibitions proposal, in the has reference five only not include Federal to state resources does grants I Federal under Title do funds. Since the they not become of the state when monies control of come under the administrative no them. boards, C has effect on VI. PRIVATE FOSTERHOMES question asks: The fourth certified preclude direct or indirect Does providing private educa- institutions assistance to Mich op the Court placed there who to children tional pursuant order? court No. Answer: judge probate probate is clothed a code

Under place authority minor, that a with birthday, not attained his who has seventeenth child statutory private The relevant fosterhome. a authority states: court] probate may

“[The enter order of dis an appropriate position for welfare shall be * # * society as follows: child said (d) to a child in or commit child Place the incorporated private agency under the institution approved or licensed laws of this state department care of for the social welfare state age, characteristics;” of similar sex children (MCLA Supp [Stat § Ann 712A.18 1970 Cum 27- (598.18)].) .3178 county private funds to

The fosterhome receives pay caring expenses for a minor incurred in all placed private home court order.7 Some provide in- educational facilities and fosterhomes home. reside in the struction for the minors who Payments may funds, either out be made from two county’s general county’s fund out social services care fund established under the child arrangements question whether act. raise the These paid maintain” funds are “aid or prohibition. C’s first violation of “any private, key language Proposal C is nonpublic pre-elementary, or other denominational elementary secondary Is school.” primarily but as a home fosterhome which serves juveniles appointed “non- for also a school court purposes of the amendment? school” [598.25]). (Stat Ann 1969 Rev 27.3178 MCLA 712A.25 School 425 Opinion op the Court operation, private Both in function and foster- providing which, home addition to food, shelter personal and care to its residents, offers incidental special private educational services is a stitution. The minors kind of in- placed in its are care com- by probate the mitted to fosterhome order court.8 The minors who are are committed lawbreakers, intemperate products victims of habits or of an unsuitable home environment.9 At the time their private they commitment to a are fosterhome, either custody probate Depart- court or the ment of Social Welfare.10 The fosterhome must file progress reports probate semi-annual to the court.11 Department responsible of Social Welfare is developing enforcing adequate for and standards living including quarters, of child care food, cloth- ing, medical care, sanitation And recreation.12 private fosterhome must be licensed Department of Social Welfare.13 special special

Fosterhomes are for institutions way private children are no substitute for many A is in school. fosterhome ways private counterpart to the state institu purview Department tions under of Social charged caring dependent, Welfare with ne glected delinquent Boys as the children, such Training Training School Girls appointed which receive These court juveniles.14 distinguished “public state institutions are 400.191-400.195. also (Stat 9MCLA 712A.2 11 MCLA 8MCLA 712A.18 10 MCLA 712A.20 712A.24 12 MCLA 722.102 MOLA 722.103 PA Administrative Code Ann 1957 Rev § 1907, § § § § § § No (Stat (Stat (Stat (Stat (Stat (Stat 25.387). 7; 1954, Ann 1970 Cum Ann LA Ann 1970 Cum Ann 1970 Cum Ann Ann 1962 1970 R 400.141-400.178; Cum No Rev Rev Supp § § Supp Supp Supp 27.3178 27.3178 14; § § § § 27.3178 27.3178 25.358[3]). 25.358[2]). MOLA [598.20]). [598.24]). 1962 AACS R [598.18]). § [598.2]). 400.207 See 384 Mich 390 Opinion op the Court Similarly, private Michigan schools” statutes.15 function fosterhomes which serve the same as these distinguished from could be institutions, state “non Moreover, fosterhomes schools.” “nonpublic ordinary within the schools” under standing of that term. highest of court of the State New York was upon

called whether a contract a decide between private orphanage city a board of education pursuant allowing to a cities to statute contribute municipal funds, funds, but not common school private orphanages whereby of the salaries four paid orphanage city teachers at the violated the were with funds prohibition York constitutional New against the use of credit in aid of sectarian Sargent In schools. v. Rochester Board Educa- of tion NY NE New York (1904), (69 722), 177 Appeals orphanage of was not Court held that the learning mean- or within the a school institution of against ing prohibition of the state constitutional aid to sectarian schools. York,

Like sister hold that a our State New we provides fosterhome which incidental educa- scope pri- “any tional services falls outside the nonpublic pre-elemen- or other vate, denominational tary, secondary purposes elementary or school”16for (Stat 15.3251). MCLA Ann 1968 MCLA Bev § §340.251 (Stat Supp 28.2026). 804.106 Ann 1970 Cum concept Tax has of a The United States Court utilized this same attending “special cost of a school for school” to decide when the mentally persons physically handicapped a medical is deductible as expense purposes income the Federal tax. case, year, girl average In the decided last intel- Griesdorf ligence from an emotional disturbance which caused her to suffered normally reality point retreat from to the where she could not function ordinary A psychiatrist an recommended that she attend school. organized give maladjusted psycholog- children such psychiatric help process educating The Tax ical and Court them. operating primarily to “special ruled that this school” was remedy only benefits. handicaps mental with educational incidental Thus, expense. the entire fee as a medical tuition was deductible (54 1970.) TO No 54.167 P-H TC paragraph Dist. v. op the Court prohibitions against aid mainte- employment

nance, attendance and persons at schools.

vn. TAX EXEMPTIONS question Certified No..5 states: deny Does intervenors and their respective represented class or classes, tax exemption, including any exemp- but not limited to exemptions property, tion or income, sales, intangibles, use, franchise, “in inheritance, of,” lieu pursuant other tax or taxes, them, allowed to the Constitution and laws of the 'State of Mich- igan, prior adoption to the C? parents, yes.

Answer: As to As to schools, no. Property exemptions private tax for schools have accepted part Michigan been an of law for over three quarters century. Michigan of What is on new the scene is serious consideration of tax relief for parents support public systems by paying who two school system taxes for and tuition for private Michigan legisla- school. In fact, proposals during ture entertained two the 1969 legislative provided session which would have tui- parents paying tion tax relief.

Reading exemption the no tax “credit, benefit, or language prefaces deductions” the second and prohibitions third in context indicates it was de- signed personal exemptions to outlaw tax for parents private of ex- children but not tax emptions private interpreta- for schools. This is the Kauper University tion of Professor Paul G. of the Michigan nationally recognized Law authority and on author affairs and church-state Mich op the Court Kauper, constitutional law. Professor in a memo- colleagues randum on to his addressed University Michigan Faculty, on the Law School writes: prohibited types singling bene “In out directly sup indirectly may to used

fits that port be employment children or attendance persons uses it the terms schools, at exemption ‘payment deduc benefit, tax credit, grant subsidy, loan vouchers, tion, tuition * * # property .’ ‘tuition monies or clear. Under amendment reference is voucher’ whereby parents given any system payable of their are vouchers subsidize education funds to out of their choice would be children unconstitutional, at the extent that such least to purchase to education at non clear voucher be used could fairly I it that the think too schools. exemptions phrase tax or deduc ‘credit, benefit, whereby to devices tions,’ reference various has special parents are send benefits accorded who tax # # * . their children “I do that the effect believe, however, proposed destroy prop- will be to amendment erty school cated exemption property tax for used for contending.

purposes, as some As indi- me to be the natural above, what seems to interpretation in the prohibition exemption on tax proposed tax amendment is that it refers to exemptions parents attending pri- of children (Kauper, Proposal vate Mich- schools.” Amend igan State Financial Assist- Constitution Prohibit 12.) pp Schools, ance Private October agree argument We with this taken At- from the torney p General’s brief 50: people

“Had non- to withdraw from intended any exemptions, schools tax cred- benefits or they placed appropriate language its would have to Opinion of the Court accomplish purpose such in the first sentence of Proposal language Instead, C. placed was only, in the sup- second sentence as it relates to the port the pupils attendance of employment person. The appropriate provision failure to make for denial of exemptions significant such tax compels is Proposal conclusion that does not evidence C an part people interest on prohibit to exemptions tax to schools.” exemptions appropriations

Since tax are hot or payments monies, nor the utilization of exemption granted credit, a tax to a though may unconstitutional, even it directly indirectly “aid or maintain” the non- public school.17

VIII. CONSTITUTIONAL QUESTIONS question The sixth certified is: deny Does C to intervenors their respective represented process class classes due equal protection guaranteed of law of the laws by the Fourteenth Amendment to the Constitution of the United States? By interpretation,

Answer: this Court’s no, ex- cept for the last clause of C’s second sen- By Attorney interpretation, tence. General’s yes. question

The seventh to certified us reads: deny Does to intervenors and their respective represented right class or classes gasoline exemption given gasoline tax transporting (MCLA used students to and from school bus 207.112a Supp 7.302(1)]) Ann Cum comes within the [Stat legislature provide last sentence of the amendment allows transportation for the students and from school. 390 384 Mich Opinion op the Court rights religion and other enumerated free exercise of the guaranteed Amendment to Con- the First applicable as made United States stitution ' through Michigan Fourteenth the State United to the Constitution Amendment ? States interpretation, By no, ex- Court’s

Answer: this Proposal cept C’s second sen- for the last clause of interpretation, By Attorney General’s tence. yes. Proposal noC, constitu- construes

As this Court except questions for the last clause tional arise which we found sentence the amendment’s second if we However, III. in Part to be unconstitutional adopted Attorney interpretation General of the (the interpretation here and hereinafter we refer to 4715), Attorney appears No General problems would arise. constitutional serious terminating Attorney reads General auxiliary time instruction and shared perspective on children. This literal for non- funds mandate of no C’s position place in a the state schools would against the class of where it discriminates equal protection of the in violation school children of the provisions Amendment Fourteenth parochial In the case Constitution. United States (and some school children or other church-related school students 274,000 of the 270,000 schools),18proposal Michigan church-related attend religion clause the free exercise violate C would Con- the United States Amendment to of the First stitution.19 19 and 20. Stipulation paragraphs of Facts church- aid to questions regarding state Generally past, in the pro- aid has extended its the state have when arisen related church- to include public school children

grams public schools or grounds challenged on the This pupils. their aid schools or related Amendment clause First it violates the establishment 1971] Opinion op the Court

FEDERAL QUESTION: CONSTITUTIONAL EQUAL PROTECTION —FREE EXERCISE Nonpublic School Students Public Schools right, pro- C involves the fundamental hy parent tected Fourteenth Amendment, of a to send his child to the his school of choice if it quality meets the state and curriculum standards. Society (1925), (45 Pierce v. Sisters 268 510 US 1070). Proposal S L 571, Ct 69 Ed C’s restriction right Attorney Opinion this under the General’s by prohibiting nonpublic school children from re- ceiving public auxiliary shared time and services at a justified only by compelling

school can be necessary state interest and means to achieve objective. Harper Virginia v. Board Elec- (1966), (86 tions 196); 383 663 US Ct 16 L 2d 1079, S Ed (1969), Kramer v. Union Free School District (89 583); 395 US 621 L 1886, S Ct 23 2d Ed Shapiro Thompson (1969), (89 v. 394 618 US S Ct 600) (hereinafter L Shapiro). 22 Ed 2d cited as governing The constitutional doctrine indirect bur- dens has well been summarized Mr. Justice power opinion sustaining Brennan in his recent Congress requirements residency presi- to set dential elections: governmental

“Of has course, action that burdening incidental effect of the exercise of a con- ipso right stitutional is not unconstitutional. facto governmental may But case, in such a action with- through applicable United States Constitution to the states made Hence, to States Fourteenth Amendment the the United Constitution. generally provided has form issue been whether of state aid permissible. pupils or church-related schools their was In this case C restricts aid to ehureh-related state nonpublie Thus, question other is schools. here whether religion C guarantee the free First Amend- violates exercise of protection equal ment and the In Fourteenth Amendment. clause of the question state other words the in certain situations is whether mandatory. aid pupils their is Mich op the Court upon only scrutiny a clear constitutional stand necessary imposed showing burden governmental compelling protect interest.” and substantial (1970), Oregon Mitchell US 346). (91 L Ed 2d 321; 27 S Ct precluding serves two interests: state public expenditures prevent- schools and sponsorship religion ing excessive state en- tanglement between church and state.

Shapiro recognized “that a has a valid in- state preserving integrity pro- terest the fiscal its [the state] grams.” “It However the Court said example expenditures for not, could -for reduce its barring indigent by Shapiro, education children from its supra, 633. Neither Pro- schools.” can posal from shared C bar school students auxiliary time as it is school, at a unnecessary prohibiting purpose to achieve the monies schools. denying inappropriateness

The auxiliary students access shared time public at basis of a schools on the state preventing religion sponsorship state interest entanglement between church and state or excessive program Even a is self-evident. released time during public permits leave school school students to religious day attend centers for reli- the school gious the “free not exercise” instruction does violate the United States and “establishment” clauses of (1952), 343 US Zorach v. Clauson Constitution. (72 954). 306 L Ed S Ct 96 interpretation Attorney Pro- General’s right posal severely constitutional curtails the advanced while the interests school selection state upon require by Proposal intrusion this C do right. fundamental constitutional the exercise of a excluding private Consequently, school children 1971] 433 op the Court receiving auxiliary shared time instruction or public equal services at the school is a denial of protection. public This a does not mean that district must offer shared instruction time auxil- iary services; it that if means it does offer them to school children school, at right students also have a receive them school.

When a partici school student is denied pation publicly funded shared time courses or auxiliary services offered at the school be cause of his status as a school student and he attends a conviction, religious school out of imposed upon he also has burden his right freely religion. exercise his The constitu protected tionally right of the free exercise of reli gion legal is violated when a classification has a upon practice religion coercive effect without being justified by compelling Engel state interest. (1962), (82 v. Vitale 421 US Ct 8 L S Ed 1285); 2d (1963), 601, ALR2d Sherbert v. Verner (83 965) (herein US 1790, 10 S Ct L Ed 2d Sherbert). pointed after cited as As above, out compelling there are no state interests advanced justify placed C which the burden on attending private religious choice school out of a conviction. passing, may Attorney

In it be noted that argued inap- General in his brief that Sherbert plicable. pointed “Proposal He out not deal C does religious with schools as such but rather with all private schools whether non sectarian or sectar- Supreme ian.”20 However, Court the United in States matters of racial looks to discrimination “impact” v. Erick- the classification. Hunter (1969), (89 son 21 L 2d 557, 393 385 Ed US S Ct 20Attorney Brief, p General’s 83.

434 384 Mich Opinion op the Court to the First same should apply This principle 616). discrim- protection against religious Amendment’s with 98 percent and here ination church-related schools students being total. is “impact” nearly Nonpublic at

Nonpublic School Students Schools not unconstitionally school students are Fonpublic time instruction against if shared discriminated but not at nonpublic at schools available have access to shared time so as long they at the school. instruction however, and drivers Auxiliary training, measures must general safety health basis to all chil nondiscriminatory on given be Education v. Board Hughes State ex rel. dren. of cert. 711), pending SE2d (1970), — W Va — (174 517, No Supreme in the United States Court Everson v. Board term,21 and see October L 504, 91 Ed (67 Ct (1947), Education 330 US 1 S 711).22 — Hughes (1970), W Va Board Education ex rel. In State cert, — pending term, Supreme Court (174 711), States the United SE2d Virginia Supreme Court held the West No. October 1970 as that county of education statutory providing that board language expense provide adequate means authority “shall have mandatory age” made it transportation for all of school children attending paro- transportation for those provide on the chial schoolswhen to do chial school children and their laws the free exercise of board Not transportation provided for schools. was Supreme Court, deny paro- so, Virginia would West said the equal protection parents the Amendment, violate and would also guaranteed the Fourteenth religion clause of the First Amendment. (67 S Ct (1947), 330 22 Everson v Board Education US 1392) when the circumstances 91 L Ed 168 ALR illuminates religion or exces sponsorship of preventing state’s interest sive not state does applies; or rather state entanglement church and between upheld Supreme Everson, Court apply. United States In parents parochial Jersey of both New that reimbursed statute transportation to and public school of bus children for costs grounds it violated challenged on school. The statute was compared The court establishment clause of the First Amendment. saying were both protection, transportation police

bus and fire such, they As safety legislation. examples served a general health and incidental only an legitimate purpose with legislative secular 1971] Opinion op the Court

IX. CONCLUSIONS following summary This Court reaches the con- : clusions Proposal prohibits

1. C above all else state fund- ing purchased educational services in the non- public hiring school where the and control is hands of the school, otherwise known as (Part “parochiaid.” II.) Proposal prohibitory impact 2. has upon C no provided time shared instruction wherever offered ultimate and immediate control the sub- ject personnel premises matter, the and the are un- system der the and authorities open eligible courses are to all to attend the school, absent such when standards, merely the shared time instruction is “incidental” or “casual” or non-instructional in character, sub- ject, religious entangle- of course, to the issue (Question III.) ment. 1; Part Proposal prohibit auxiliary 3. C does not services training-, general and drivers which are health safety services, wherever these are services offered except unlikely religious in those circumstances of entanglement. (Question IV.) 2; Part attempt

4. does not to interfere with (ESEA.) (Ques- the distribution of Federal funds. V.) 3; tion Part pro-

5. C does in an not, educational posal, prohibit operation intervene to social religion. reasoning auxiliary apply benefit would This general examples education health driver also safety legislation. the Everson light safety case, In it is clear that health and only religion incidentally measures do benefit not constitute state entanglement Hence, religion. is not excessive it necessary prohibit auxiliary premises non- services on objective. school to achieve this Mich Dissenting Opinion by T. M. Kavanagh, C. J. (Question welfare institution such as fosterhome. VI.) 4; Part change Michigan’s

6. long- C does not standing policy exemption religious, of tax char- (Question itable, and educational institutions. 5; VII.) Part Eegarding constitutionality Proposal 7.

(Questions VIII): 7; 6 and Part language a. The “or at location or institution part where instruction is offered in or in whole school students” at the end of the Proposal second sentence in C is unconstitutional, capable void and unenforceable and is severable and being removed from Article without alter- ing purpose and effect of the balance of the (Part 1.)§ sentence and section. III, language by b. The remainder of C’s this Court’s construction of C raises no questions unconstitutionality Michigan under the or the United States Constitutions. interpretation

c. An C that school children are barred from time in shared auxiliary schools and from and driv- training ers and schools is un- constitutional under the United States Constitution. foregoing questions answers to certified one through will seven be certified the 13th Circuit disposition opin- of the cause with in accord this ion. No costs. T. E. T. G.

Black, Brennan, Kavanagh, JJ., concurred with J. Swainson, Williams, (dissenting part T. M. Kavanagh, in C. J. concurring part). my in For in stated reasons separate opinion Secretary in State Carman (1971), 384 Mich 443, we believe case should this School Dist. v. Dissenting Opinion J. by Adams, with prejudice. However,

be dismissed the majority- Carman, present is for opinion supra, at least, the law in Michigan. if Proposal

We C was sub- agree properly mitted people properly adopted, to the our opinion correctly Justice Williams interprets correctly applies Constitution as amended and process equal protection due clauses Federal Constitution.

T. G. Kavanagh, J., concurred with T. M. Kava- C. J. NAGH, J. (dissenting part and concurring

Adams, part). In Carman v. Hare (1971), Mich 443, this Court decided that the people duly adopted an amendment to the Pro- Constitution, submitted as posal C at the election general of November 3,1970, and that its became a of language the part Michigan on Constitution the If December 18. this following added provision does violate the Federal Con- (Questions stitution 6 and it 7), controlling is and our in this in duty case, the answering ques- stated tions, simply if and, be, need to construe apply its provisions. I with Justice agree that this case raises Williams of question the construction of Article as 8, 2,§

amended. I him agree with as con- rules of struction, would but add that we had occa- recently sion to consider the of the first language paragraph 2, of Article of Ann 8, § the case Bond v. Arbor School District 383 Mich 693. In (1970), case, that ain per unanimous curiam this Court stated opinion, (pp 699, 700): “The rule a court should follow ascertain- first

ing the of meaning give words constitution is effect to such words as under- plain meaning Mich by Adams, J.

Dissenting Opinion People, adopted people ex it. See who stood Blodgett (1865), 127, 13 Mich Twitchell, rel. v. (1949), People State 167; Board v. Canvassers Michigan Farm Bureau 529; Mich 523, 528, (1967), Secretary 387, 390, 379 Mich 391.” State (Emphasis added.) petitions place Proposal onC the ballot legislative were drafted and before the circulated private appropriating enactment for $22,000,000 commonly “parochiaid,” known became schools, petitions February law. The were circulated in Secretary March of 1970 and were with the filed July on State June 25 and 1970. Parochiaid did July not become Prior to law until 1970. adoption way parochiaid, proposals by other parents attending tax relief to of children expenses taxpayers toor individual schools, colleges, connected with attendance schools legislature. were considered adoption C, Before the the Constitu- clearly provided public elementary tion for “free * * * secondary schools without discrim- religion, ination as to color or national creed, race, origin.” Proposal in- state C addressed itself to light volvement in in the raging legislature that debate had been in the among as to whether there should be parochiaid, such involvement, whether in the form of language of Pro- credits, tax posal or whatsoever. The clearly C is aimed what- at no involvement in might exception form ever it take with the one legislature provide transportation could for the students to and school. question Turning questions, to the as to certified public my school, one, number answer is: At premises, I would “No”; on school “Yes.” case-by-case a leave for future on determination Dist. Opinion by Adams, Dissenting J. premises leased con- or not so-called whether basis public prem- portion school a fide bona stitute attempt merely to a device to circumvent ises or Proposal prohibitions It obvious C. seems private programs provide in to shared-time that public moneys the use of constitute would operations in their or maintain such schools aid attendance tend to and that it would Once the door schools. students private programs open schools, to shared-time is pro- simple of such the use a matter, be it would grams, objectives attempted by all achieve people completely what the parochiaid and defeat by adopting attempted C. to achieve agree I with Justice Williams pri- prohibit shared-time for instruction does public In such students in the schools. a school vate so-called is shared-time student noth- situation, part-time public ing a than school student. more is different that of other His status no is enrolled less than full time. In who student dealing question, I constitutional would with this given a at a determine student’s status therefore Students attend the school he attends. who time different school and school for both opinion, study my both are, courses of nonpublic school students. the released student

This is the rationale of time religious instruc- who attends considered to be If he were tion. religious school, at the attendance

student while constitutionally There forbidden. be this would nothing at a attendance about justifies tagging a student as school that exclusively belonging or the other. There- one invalidity partial in what Justice I can find fore, no ,C’s refers fourth and fifth to Williams Mich Opinion by Adams, Dissenting J. attending public

prohibitions. A school, student portion day, public only of is a even public attending classes. student while place If of attendance is not used as the test of status, student all rules constitutional construc- meaning Proposal tion as to the C are violated— (1) give plain to we fail meaning effect to the Proposal the words of C people as understood adopted understanding”; who “common (2) it—the fail we to take account of the circumstances sur- rounding adoption Proposal (3) C; and we ignore interpretation an that does not create con- invalidity, going way adopt stitutional of our out to interpretation an that does. language Proposal

The prohibitions and the private therein contained are aimed at schools and expand prohibitions institutions —to apply- ing plain schools runs counter to the mean- ing and intent of language C and of the any equal protec- In used. tion event, Federal state guarantees require programs offered in public school be made available to all students, private equal whether from schools, on an basis. agree question with Justice Williams’ answer to I Auxiliary

number Services. General health two— safety measures are not within the reach of prohibitions contained C. agree question with Justice Williams’ answer to I Moneys number three —Federal' under Title I. agree am I unable to with Justice Williams’ an- question swer to number four —Private Foster question Homes. The which confronts us here is probate judge authority place not whether has a minor foster home but whether moneys paid may foster homes be used provide educational facilities instruction for School Dist. J. Dissenting by Adams, prohibi- in the home. who resides minor expenditure against C are tions private, de- moneys maintain aid or “to pre-elementary, nonpublic, or other

nominational pay- against secondary elementary, school,” student the attendance “to ment any person employment at in- where institution location or at part to such non- inor in whole is offered struction school, a is A school school students.” private home, a foster a conducted whether by the state. church, or

Neglected dependent children are wards special obligation them, The state owes to state. especially neglected through child who, no fault proper atmosphere. In own, of his lacks home fulfilling obligation, some such children its are sent placed private are to state institutions. Others responsibility provide foster homes. ing to school- specifi- responsibility, all children is a state cally paragraph in the legislature enunciated first of Article required § wherein maintain to system elementary “free * * * secondary without discrim- religion, ination to creed, race, color or national origin.” responsibility I fail see how this can private public expense be shifted to foster homes unduly discriminating against neglected without dependent children who are sent to those relegated thereby foster homes schooling wholly outside the bounds of the state’s responsibility. constitutional agree with Justice that the answer to I Williams question parents, number five is “Yes” as to “No” as to schools. regard questions

With number and number six seven—Constitutional I would con- Questions—as Mich Dissenting Opinion by Adams, J. strue proc- C, there is no violation of due equal protection ess of guaranteed law or of the laws by the Fourteenth Amendment to the Constitution right of the United States, or of the to free exercise religion rights guaranteed and other enumerated by the First Amendment Constitution of the applicable United States as made to the State of Michigan through the Fourteenth Amendment to the Constitution of the United States.

Case Details

Case Name: Traverse City School Dist. v. Atty. Gen.

Court Name: Michigan Supreme Court

Date Published: Mar 31, 1971

Citation: 185 N.W.2d 9

Docket Number: 19 January Term 1971, Docket No. 53,144

Court Abbreviation: Mich.