The provisions of the Revised School Code, 1976 PA 451, MCL 380.1 et seq, do not impose any obligations on a higher education institution to require criminal history checks or fingerprints of its employees who provide instruction to K-12 students.

The board of a school district or intermediate school district, or the governing body of a public school academy or nonpublic school is obligated to obtain a criminal history check of employees of a higher education institution who provide instruction to any K-12 students if such instruction is provided: 1) pursuant to a contract with the school board or governing body of the K-12 institution; 2) regularly and continuously – on more than an intermittent or sporadic basis; and 3) "at school," meaning "in a classroom [or] elsewhere on school property," as provided in MCL 380.1230a(15).

Opinion No. 7252

October 21, 2010

Honorable Joan Bauer
State Representative
The Capitol
Lansing, MI 48909

You have asked whether higher education institutions that are engaged in providing instruction to K-12 students are required to conduct criminal background checks and obtain fingerprints of their employees who come into contact with K-12 students.

Higher education institutions may provide instruction to high school students who are eligible for dual enrollment under the Postsecondary Enrollment Options Act (PEOA), 1996 PA 160, MCL 388.511 et seq. The PEOA provides that eligible high school students may enroll in courses or programs in eligible postsecondary institutions.¹ This is commonly known as "dual enrollment."

In September of 2005, the Governor signed into law a series of public acts, 2005 PA 121-139, that comprise the Michigan School Safety Legislation (School Safety Legislation). Taken together, these acts amended: the Code of Criminal Procedure, 1927 PA 175, MCL 760.1 et seq; the Revised School Code, 1976 PA 451, MCL 380.1 et seq; the Teacher Tenure Act, 1937 PA 4, MCL 38.71 et seq; and the Sex Offender Registration Act, 1994 PA 295, MCL 28.721 et seq. Your question centers on whether higher education institution instructors who teach high school students under the PEOA are subject to the School Safety Legislation.

The PEOA applies to eligible students in grades 11 and 12. MCL 388.513(f). Thus, students in those grades are most likely to come into contact with higher education institution instructors. However, as discussed later, the School Safety Legislation is generally applicable to individuals who work on school property. So this opinion, while
most likely relevant to students in grades 11 and 12, is nonetheless applicable to any students in grades K-12.²

Provisions of the School Safety Legislation relevant to your question include sections 1230 and 1230a of the Revised School Code, which require the board of a school district or intermediate school district or the governing body of a public school academy or nonpublic school³ to request a criminal history check from the Michigan State Police upon an offer of initial employment to an individual, or when school officials learn that an individual has been assigned to "regularly and continuously work under contract in any of its schools." MCL 380.1230(1) and MCL 380.1230a(1).⁴ The school "shall not . . . allow" the individual to work in its schools until after it has received the results of the criminal records check. The school board is also directed to "require the individual to submit his or her fingerprints to the department of state police for that purpose." MCL 380.1230a(1).⁵

The plain language of section 1230a(1) of the Code specifies two classes of persons subject to the criminal history checks: (1) applicants or individuals hired for full or part-time employment in a school; and (2) individuals who "regularly and continuously work under contract" in a school. Section 1230a(15)(d) defines "[r]egularly and continuously work under contract" to include individuals who work at the school under a direct contract or who work for or own an entity under contract with the school:

               (i) To work at school on a more than intermittent or sporadic basis as an owner or employee of an entity that has a contract with a school district,
          intermediate school district, public school academy, or nonpublic school to provide food, custodial, transportation, counseling, or administrative
          ervices, or to provide instructional services to pupils or related and auxiliary services to special education pupils.

               (ii) To work at school on a more than intermittent or sporadic basis as an individual under a contract with a school district, intermediate school
          district, public school academy, or nonpublic school to provide food, custodial, transportation, counseling, or administrative services, or to provide
          instructional services to pupils or related and auxiliary services to special education pupils. [MCL 380.1230a(15)(d)(i) and (ii); emphasis added.]

If the other requirements of the statute are met, employees of higher education institutions who teach courses to any K-12 students at a K-12 school are covered by section 1230a(15)(d) of the Code when they provide instructional services to pupils on a more than intermittent or sporadic basis. The critical statutory element, however, is that the services are provided "at school."

MCL 380.1230a(15) provides:

               (a) "At school" means in a classroom, elsewhere on school property, or on a school bus or other school-related vehicle.

                                                                                                                  * * *

               (e) "School property" means that term as defined in section 33 of the sex offenders registration act, 1994 PA 295, MCL 28.733.

MCL 28.733(d) defines school:

               "School" means a public, private, denominational, or parochial school offering developmental kindergarten, kindergarten, or any grade from 1 through
          12. School does not include a home school.

MCL 28.733(e) defines school property:

               "School property" means a building, facility, structure, or real property owned, leased, or otherwise controlled by a school, other than a building,
          facility, structure, or real property that is no longer in use on a permanent or continuous basis, to which either of the following applies:

               (i) It is used to impart educational instruction.

               (ii)  It is for use by students not more than 19 years of age for sports or other recreational activities.

MCL 380.1230a applies when a school board offers an individual full or part-time employment in any of its schools, or when an individual is initially assigned to regularly and continuously work under contract in any of its schools as provided for in these definitions. The Revised School Code does not apply where the work is not performed on K-12 school property.

The language used by the Legislature in these statutes is plain and unambiguous. Accordingly, construction is neither necessary nor permitted, and the provisions must be enforced as written. Lash v Traverse City, 479 Mich 180, 187; 735 NW2d 628 (2007). The school board of a K-12 school is responsible for ensuring compliance with the Student Safety Legislation. The school board is required to request a criminal history check from the Michigan State Police upon an offer of initial employment to an individual, or when school officials learn that an individual has been assigned to regularly and continuously work under contract in any of its schools. The school board must request a criminal records check and must require an individual to submit fingerprints for the purpose of the background check. MCL 380.1230a(1). The school board shall not employ an individual or allow an individual to regularly and continuously work under contract in any of its schools until after it receives the results of the criminal records check. MCL 380.1230a(1).⁶

The Student Safety Legislation does not, however, place any requirements on the higher education institutions to request a criminal history check of its employees who may provide instruction to any K-12 students. By its own terms, the Code is an act to address issues specific to elementary and secondary schools.⁷ Thus, in the absence of any provisions imposing obligations on them, higher education institutions that employ individuals who provide instruction to high school students are not required to comply with the Revised School Code, including the provisions requiring criminal history checks.

Although your question pertains to instructional services provided to both post-secondary and K-12 students by instructors from higher education institutions, the criminal record check requirement imposed on a school board by the Code applies to any person who, pursuant to a contract with a school board, provides instructional services to any K-12 students on a regular and continuous basis in a classroom or elsewhere on school property regardless of the purpose of the instruction and irrespective of the service provider who enters into the contract with the school board.

For example, Part 20A of the Code, MCL 380.1471 through 380.1475, allows a school board to provide college level equivalent courses⁸ to its students either directly or in cooperation with other educational providers. Nothing in Part 20A suggests that instruction offered under this Part is exempt from the criminal record check requirements for instructors of K-12 students on school property.

It is my opinion, therefore, that the provisions of the Revised School Code, 1976 PA 451, MCL 380.1 et seq, do not impose any obligations on a higher education institution to require criminal history checks or fingerprints of its employees who provide instruction to K-12 students.

It is my further opinion, that the board of a school district or intermediate school district, or the governing body of a public school academy or nonpublic school is obligated to obtain a criminal history check of employees of a higher education institution who provide instruction to any K-12 students if such instruction is provided: 1) pursuant to a contract with the school board or governing body of the K-12 institution; 2) regularly and continuously – on more than an intermittent or sporadic basis; and 3) "at school," meaning "in a classroom [or] elsewhere on school property," as provided in MCL 380.1230a(15).