STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 4795

August 11, 1977

SCHOOL DISTRICTS:

Interscholastic athletics

STATE BOARD OF EDUCATION:

Interscholastic athletics

The regulation of interscholastic athletics may not be delegated to the Michigan High School Athletic Association.

Interscholastic athletics are a part of the governmental function of a school district and therefore the regulation thereof may not be delegated to a private corporation or association.

The boards of education of school districts may join an athletic association and voluntarily adopt the rules of the association, but enforcement of these rules must be the responsibility of each board as to the schools within its jurisdiction.

Dr. John W. Porter

Superintendent of Public Instruction

Department of Education

Lansing, Michigan

You have requested my opinion on two questions which may be restated as follows:

1976 PA 451, Sec. 1289, supra, in pertinent part, provides as follows:

1976 PA 451, Sec. 1521, supra, provides as follows:

Although neither 1976 PA 451, Sec. 1289, supra, nor 1976 PA 451, Sec. 1521, supra, necessarily suggests that an 'organization, association or league which has as its object the promotion and regulation of sport and athletic . . . contests by or between pupils' exists, in fact there is such an association named The Michigan High School Athletic Association, Inc, hereinafter referred to as MHSAA. According to its handbook for the 1976-77 school year, the MHSAA was organized by the adoption of a constitution on December 4, 1924. All high schools, junior high schools, or other schools of Michigan doing grade of work corresponding to such schools, may become members of MHSAA.

The records of the Department of Commerce show that on April 18, 1972, articles of incorporation (nonprofit) were filed for 'Michigan High School Athletic Association, Inc.' The purpose of the corporation as stated in its article is:

It may be noted that in 2 OAG, 1957-1958, No 3175, p 70 (March 5, 1958), it was held that the Michigan High School Athletic Association is subject to the control and supervision of the Superintendent of Public Instruction. In so ruling, the Attorney General stated:

At the time OAG No. 3175, supra, was issued, Sec. 784 of the School Code of 1955, 1955 PA 269, Sec. 784, authorized the Superintendent of Public Instruction to supervise and control interscholastic athletic activities, and pursuant thereto, the regulations governing interscholastic athletic contests were adopted by the Superintendent of Public Instruction and published in the Michigan Administrative Code. See OAG No. 3175, supra, p 71. In contast, pursuant to 1976 PA 451, Secs. 1289 and 1521, supra, the power to adopt regulations governing interscholastic athletic contests is now reposed in the association or associations referred to in these two sections.

I now direct my remarks to your first question. 1976 PA 451, Secs. 1289 and 1521, supra, do not contain any language that purports to create any entity, either governmental or private. These sections purport to vest certain powers to regulate athletic and other types of contests by and between pupils and authorize a school district to join an organization formed for such a purpose, but if no such organizations were in existence, or were not brought into existence, the powers purported to be vested could not be executed. In other words, 1976 PA 451, Secs. 1289 and 1521, supra, have no practical effect until someone, or some group, forms an organization to exercise the powers. These sections do not create an organization, nor do they mandate the creation of an organization. Therefore, recognizing that the legislature may vest in administrative or quasi legislative public bodies the power to perform governmental functions, including the power to make and enforce discretionary rules, if these powers are measurable or exercisable in accordance with standards selected by the legislature, the question to be answered is whether such powers and duties may be vested in private persons or private bodies?

The Michigan Supreme Court has determined that interscholastic athletics are part of the governmental education function vested in school districts by law. In Richards v Birmingham School District, 348 Mich 490, 509-510; 83 NW2d 643 (1957), the Court stated as follows:

See also Watson v School District of Bay City, 324 Mich 1; 36 NW2d 195 (1949).

In this regard Michigan is different from many jurisdictions where participation in interscholastic athletics is deemed to be a privilege and not a part of the educational function of the school district. The privilege point of view is exemplified in State ex rel Ohio High School Athletic Association v Judges of the Court of Common Pleas of Stark County, 173 Ohio 239; 181 NE2d 261 (1962), which held that a public school board of education had discretionary authority to authorize one of the schools within its district and under its control to become a member of a voluntary unincorporated association, the object and purpose of which is to promote and maintain amateur athletics among its members. Similarly, in Mitchell v Louisiana High School Athletic Association, 430 F2d 1155 (CA 5, 1970), the court held that in Louisiana participation in high school athletics was a privilege and thus the application of rules regulating the conduct of interscholastic athletic events promulgated by a voluntary association could not be attacked on due process grounds.

The Michigan Supreme Court has ruled that governmental powers may not be conferred upon a private person or body. In The Senate of the Happy Home Clubs of America v Board of Supervisors of Alpena County, 99 Mich 117, 120; 57 NW 1101, 1102 (1894), the Court said:

In Coffman v State Board of Examiners in Optometry, 311 Mich 528, 588; 50 NW2d 322, 325 (1951), the Court said:

The MHSAA is a private, nonprofit corporation. Under the doctrine established by the Supreme Court in The Senate of the Happy Home Clubs of America, supra, and Coffman, supra, the legislature may not delegate governmental functions to private corporations. Moreover, it may not be claimed that because 1976 PA 451, Sec. 1289, supra, requires a representative of the State Board to serve as an ex officio member of the governing body, the private nature of the corporation is thereby transformed into a public corporation. That idea was laid to rest by Bunger v Iowa High School Athletic Association, 197 NW2d 555 (Iowa, 1972). The Bunger case involved an attack on the validity of rules promulgated by a state high school athletic association. The association conceded that only the state board and constituent local school boards could regulate athletic contests. However, the association claimed that the schools, by electing to join the association, had thereby adopted and promulgated the rules as their own. The Court disagreed concluding that the school boards could not delegate their statutory authority in the first instance and, further, that the school boards had no actual choice in which rules they would accept upon joining the association. 1976 PA 451, Secs. 1289(1) & (2) and 1521, supra, is clearly invalid as an attempt to confer governmental powers upon a private body.

Inherent in the conclusion that subdivisions (1) and (2) of Sec. 1289 are invalid is the question of the affect of this invalidity upon the third subdivision of 1976 PA 451, Sec. 1289, supra. The third subdivision reads as follows:

The principle of severability has been given statutory recognition as follows:

An entire statute will not be presumed to be unconstitutional because one part is void if the balance of the act is effective. People v DeSilva, 32 Mich App 707; 189 NW2d 362 (1971); American Youth Foundation v Benona Twp., 37 Mich App 722; 195 NW2d 304 (1972); Green v McKeon, 335 F Supp 630 (ED Mich, 1971), aff'd 468 F2d 883 (CA 6, 1972), dictum.

It is plain that the effectiveness of the third subdivision of 1976 PA 451, Sec. 1289, supra, is not affected by the invalidity of the first and second subdivisions. It is my opinion, therefore, that the third subdivision of 1976 PA 451, Sec. 1289, supra, was and remains a valid statutory enactment.

The aforesaid answer makes your second question moot. The problem, however, is likely to be a recurring one. 'The need for its resolution thus reflects a continuing controversy . . .' Moore v Ogilvie, 394 US 814, 816; 89 S Ct 1493, 1494; 23 L Ed 2d 1, 4 (1969). Therefore, I will address your second question.

Const 1963, art 8, Sec. 3, created the State Board of Education and vested in it '[l]eadership and general supervision over all public education, including adult education and instructional programs in state institutions. . . . [and] the general planning and coordinating . . . for all public education. . . .' The question is whether, in view of Const 1963, art 8, Sec. 3, the Legislature may create a governmental body or agency and vest in it the exclusive responsibility for leadership and supervision over that aspect of public education known as interscholastic athletics. In my opinion, the manifest answer is 'no.'

In Lansing School District v State Board of Education, 367 Mich 591, 595; 116 NW2d 866, 868 (1962), the Supreme Court set forth the legal character of public elementary and secondary education as follows:

The power of the Legislature over education, however, is not without limitation. In Detroit Board of Education v Superintendent of Public Instruction, 319 Mich 436; 29 NW2d 902 (1947), the court, although recognizing the constitutional power of the Legislature to create and alter school districts for educational purposes, held that this power did not include the power to create a single state-wide school district to receive and disburse sales tax revenues constitutionally granted to school districts.

The State Board of Education was created by Const 1963, art 8, Sec. 3, to have '[l]eadership and general supervision over all public education,' and to 'serve as the general planning and coordinating body for all public education.' In my opinion, the constitutional fact of the existence of the State Board of Education with constitutional powers imposes a constitutional limitation upon the Legislature and, thus, precludes it from establishing any body to supplant the State Board of Education in the exercise of its constitutionally prescribed functions.

This conclusion does not derogate the '[c]ontrol of our public school system . . . lodged in the Legislature by the Constitution.' Lansing School District, supra. See, also, Hiers v Detroit Superintendent of Schools, 376 Mich 225; 136 NW2d 10 (1965), Welling v Livonia Board of Education, 382 Mich 620; 171 NW2d 545 (1969), Munro v Elk Rapids Schools, 383 Mich 661; 178 NW2d 450 (1970), on rehearing, 385 Mich 618; 189 NW2d 224 (1971), and Schwann v Lansing Board of Education, 27 Mich App 391; 183 NW2d 594 (1970), leave to appeal denied, 384 Mich 797 (1971). The Legislature may determine whether interscholastic athletics, or other interscholastic contests, require control and the nature and extent of the control required. However, the Legislature may not delegate state-wide supervision and control over interscholastic contests to a governmental body other than the State Board of Education.

Except for 1976 PA 451, Secs. 1289 and 1521, supra, the School Code of 1976 makes no provision for the state-wide regulation of interscholastic contests. Since the Legislature has indicated its preference for such regulation, it is reasonable to believe that the Legislature will pass appropriate legislation. ⁽³⁾

If appropriate legislation, designating the State Board of Education as the body to exercise supervision and control over interscholastic contests, were passed, the State Board of Education may designate a private body as an advisory agency to assist the Board in its governance of interscholastic contests.

A similar delegation was recently addressed in OAG, 1976, No. 5011, p ___ (June 18, 1976), concerning the power of the director of the Department of Agriculture to designate a seed certifying agency to assist and advise the Department of Agriculture and to recommend standards to the Department for Agricultural and vegetable seeds for certification. In determining that the designated seed certification agencies were not state agencies but were in fact private agencies, I noted that no delegation had actually occurred since the private agencies merely advised the director who was not obligated to follow their recommendations.

The relationship between the director of agriculture and the various private seed certifying agencies provides an example of the type of relationship that, in my opinion, may exist between the State Board of Education and the MHSAA. If the Legislature passes appropriate legislation authorizing the State Board of Education to regulate and supervise interscholastic contests, the State Board of Education under the provisions of Const 1963, art 8, Sec. 3, and MCLA 388.1007 and 388.1009; MSA 15.1023(7) and 15.1023(9), could appoint the MHSAA to assist the State Board and to make recommendations to the State Board concerning standards and possible rules pertaining to interscholastic contests. However, the State Board could not delegate to MHSAA any part of the State Board's control of interscholastic contests if such control were granted it by the Legislature.

Until such time as the Legislature acts, the supervision and control of interscholastic contests are in the board of education of each of the school districts of the state. See, e.g., 1976 PA 451, Secs. 1261 and 1300; MCLA 380.1261 and 380.1300; MSA 15.41261 and 15.41300. Also, Richards v Birmingham School District, supra.

If the interscholastic contests are among the schools of a single school district, the supervision and control of such contests are the responsibility of that school district's board of education. If the interscholastic contests are among the schools of more than one school district, the boards of education of the involved school districts may agree among themselves as to the rules that would control the contests and each board of education would be responsible for the adoption of such rules and for their enforcement in its own schools. To this end, the boards of education of school districts could join an association and, voluntarily, could adopt the rules of the association, ⁽⁴⁾ but the enforcement of such rules would be the responsibility of each board of education as to its own schools. Further, boards of education could provide in their rules that interscholastic contests engaged in by their respective schools be referred by officials certified by the association. Finally, boards of education may elect to participate in state-wide interscholastic tournaments sponsored by the association.

Frank J. Kelley