The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6872

September 19, 1995

SCHOOLS:

Constitutionality of public funding for private college courses taken by a public high school senior

Const 1963, art 8, Sec. 2, does not prohibit a local school district from paying a high school student's tuition to a private college for a course, not offered by the school district, for which high school credit is given.

Honorable Jim Berryman

State Senator

The Capitol

Lansing, Michigan

You have asked a question which may be stated as follows:

Does Const 1963, art 8, Sec. 2, prohibit a local school district from funding a college level course, not offered by the district, taken by a high school student at a private college under section 21b of the State School Aid Act of 1979 and then, upon successful completion, awarding high school credit to the student under section 1150 of the School Code of 1976?

In section 21b of the State School Aid Act of 1979, MCL 388.1621b; MSA 15.1919(921b), commonly referred to as the "dual enrollment" provision, the Legislature has required local school districts to pay tuition and fees to public or private colleges on behalf of certain students enrolled in a district's public high school who are also attending the college for academic courses not offered by the high school. Specifically, section 21b provides, in pertinent part, that:

(1) Subject to subsection (2), a district shall use funds allocated under this act to support the attendance of a district pupil at a public or private degree-granting postsecondary institution that is located in this state or that is party to a reciprocal agreement approved by the state board with a public or private degree-granting postsecondary institution located in this state, if all of the following conditions are met:

(a) The pupil has earned sufficient credits so that he or she is in at least grade 12 and has qualified for a state endorsement in all of the subject areas specified in section 104a, but he or she has not yet completed all local graduation requirements.

(b) The pupil is enrolled in the district and is also enrolled in the postsecondary institution during the district's regular academic year.

(2) A district shall pay tuition and fees under this section only for a course that is not offered by the district and is an academic course not ordinarily taken as an activity course. [Emphasis added.]

Section 21b was added to the State School Aid Act of 1979 by 1991 PA 118.

There is no language in section 21b either mandating or prohibiting the award of high school credit to students for college courses funded under that section. However, section 1150 of the School Code of 1976, MCL 380.1150; MSA 15.41150, provides, in pertinent part:

A school district shall not unreasonably refuse to give high school credit for a course offered by a state public university, independent college or university, or community college.

Section 1150 was added to the School Code of 1976 by 1993 PA 335.

Const 1963, art 8, Sec. 2, among other things, prohibits the use of public monies to support elementary and secondary education at nonpublic schools. It provides, in pertinent part:

No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school. [Emphasis added.]

In evaluating the constitutionality of a legislative enactment, every reasonable presumption must be indulged in favor of the statute's constitutionality. Rohan v Detroit Racing Ass'n, 314 Mich 326, 341-342; 22 NW2d 433 (1946); McDonald Pontiac-Cadillac-GMC, Inc v Saginaw County Prosecuting Attorney, 150 Mich App 52, 58; 388 NW2d 301 (1986), lv den, 426 Mich 867 (1986), cert den 484 US 823; 108 S Ct 86; 98 L Ed 2d 48 (1987).

The Michigan Supreme Court has held, in Traverse City School Dist v Attorney General, 384 Mich 390; 406-407; 185 NW2d 9 (1971), that the language of Const 1963, art 8, Sec. 2:

[R]ead in the light of the circumstances leading up to and surrounding its adoption, and the common understanding of the words used, prohibits the purchase, with public funds, of educational services from a nonpublic school. [Footnotes omitted.]

OAG, 1977-1978, No 5333, p 532 (July 12, 1978), discussed the application of this constitutional prohibition to 1970 PA 39, a state statute that attempted to provide public funding to neighborhood education centers for the purpose of providing educational services to high school drop-outs. Observing that the proposed neighborhood centers were to be operated by private sponsors under contract with the Department of Education, the opinion concluded that the proposed funding would violate Const 1963, art 8, Sec. 2:

[T]he primary purpose of private neighborhood education centers is to provide educational programs to school drop-outs that are similar to educational programs provided by public schools. Neighborhood education centers ... are a private educational substitute for public school drop-outs. Consequently, it must be concluded that neighborhood education centers, established pursuant to 1970 PA 39, supra, are private schools within the meaning of Const 1963, art 8, Sec. 2.

Thus, it is clear that Const 1963, art 8, Sec. 2, prohibits the State from providing public funds to private educational facilities for the purpose of funding primary or secondary educational services or their equivalent.

Section 21b of the State School Aid Act of 1979 does not, however, violate this constitutional prohibition. Const 1963, art 8, Sec. 2, is directed only to pre-elementary, elementary, and secondary education; nothing in that constitutional provision bars the use of public funds for post-secondary educational services. A private college is, by definition, a post-secondary institution. A fair reading of section 21b, moreover, rather clearly demonstrates that the educational services contemplated by section 21b are, in fact, post-secondary in nature. In order to qualify for this program, the student must be in at least the 12th grade and must have completed all of the requirements for a state-endorsed diploma. Furthermore, the college courses in question must involve academic subjects that are not offered by the school district and which could not ordinarily be taken as activity courses. Thus, the Legislature plainly intended that the 12th grade student would be enrolling in college level courses and would be taking these courses with, and on the same terms as, the college or university's regularly enrolled students. Under these circumstances, the educational services being provided by the college are clearly post-secondary in nature and do not fall within the prohibition of Const 1963, art 8 Sec. 2, notwithstanding the subsequent award of high school credit pursuant to section 1150 of the School Code of 1976.

This most certainly is not to say that a school district is free to contract with a private college to provide secondary level courses to its public high school students. These private educational services, designed as a substitute for public school secondary courses, would be prohibited by Const 1963, art 8, Sec. 2. OAG, 1977-1978, No. 5333, supra.

It is my opinion, therefore, that Const 1963, art 8, Sec. 2, does not prohibit a local school district from funding a college level course, not offered by the district, taken by a high school student at a private college under section 21b of the State School Aid Act of 1979 and then, upon successful completion, awarding high school credit to the student under section 1150 of the School Code of 1976.

Frank J. Kelley

Attorney General