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. 5128

June 20, 1977

SCHOOLS AND SCHOOL DISTRICTS:

Racial imbalance in public schools.

CIVIL RIGHTS:

Racial imbalance in public schools.

STATE BOARD OF EDUCATION:

Authority to impose student and staff racial balance regulations.

Local school boards of education may consider race in assigning students and faculty for the purpose of increasing racial balance within their respective school districts.

The State Board of Education is not empowered to impose student and staff racial balance regulations binding upon local school districts that include sanctions for noncompliance.

Dr. John W. Porter

Superintendent of Public Instruction

State Board of Education

Michigan National Tower

Lansing, Michigan

You have requested my opinion on the following question:

May the State Board of Education impose binding student and staff racial balance regulations that include sanctions against local school districts for noncompliance, such as termination of state school aid payments?

Since Brown v Board of Education, 347 US 483 (1954), the law has been settled that the assignment of pupils to separate schools solely on the basis of race is unconstitutional. The law is equally settled that racial imbalance in the composition of schools within a school district caused by housing patterns, without any discriminatory action on the part of school authorities, is not violative of the Equal Protection Clause of the Fourteenth Amendment. Spencer v Kugler, 326 F Supp 1235, 1242-1243 (D NJ, 1971), aff'd, 404 US 1027 (1972).

As the Supreme Court said in Keyes v School District No 1, Denver, Colorado, 413 US 189, 208 (1973):

'. . . the differentiating factor between de jure segregation and so-called de facto segregation . . . is purpose or intent to segregate. . . .'

Recently, in Washington v Davis, ---- US ----; 96 S Ct 2040, 2048 (1976), the Supreme Court stated the following:

'The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominatly white schools in a community is not alone violative of the Equal Protection Clause. . . .'

In Swann v Charlotte-Mecklenburg Board of Education, 402 US 1, 16, 24 (1971), a unanimous Supreme Court stated:

'School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities . . ..

. . . If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. . . .'

Thus, the United States Supreme Court has clearly held that the purposeful assignment of students to separate schools on the basis of race is unconstitutional. (1) However, the existence of racial imbalance in the public schools is not a violation of the Equal Protection Clause of the United States Constitution unless that imbalance is the result of deliberate discrimination.

Turning now to Michigan law we find that in School District of the City of Lansing v State Board of Education, 367 Mich 591, 595; 116 NW2d 866, 868 (1962), the Michigan Supreme Court held that school districts are '. . . local State agencies organized with plenary powers to carry out the delegated functions given it by the legislature.' Thus, Michigan school districts have only such powers as have been conferred by the legislature either expressly or by reasonably necessary implication. Senghas v L'Anse Creuse Public Schools, 368 Mich 557, 560; 118 NW2d 975, 977 (1962).

In Const 1963, art 8, Sec. 3, the State Board of Education has been granted leadership and general supervision over public elementary and secondary education. In Hiers v Detroit Superintendent of Schools, 376 Mich 225, 235; 136 NW2d 10, 15 (1965), a case brought and decided after the effective date of the 1963 Michigan Constitution, the Michigan Supreme Court held:

'. . . School boards are authorized by statute to establish attendance areas within the school district (CLS 1961, Sec. 340.589 [Stat Ann 1959 Rev Sec. 15.3589]). A school board is empowered to 'establish and carry on such grades, schools and departments as it shall deem necessary or desirable for the maintenance and improvement of the schools.' (CLS 1961, Sec. 340.583 [Stat Ann 1959 Rev Sec. 15.3583]). In addition, defendant board as a school district of the first class is specifically empowered 'to adopt bylaws, rules and regulations for its own government and for the control and government of all schools, school property and pupils.' (CLS 1961, Sec. 340.192 [Stat Ann 1959 Rev Sec. 15.31921]). We conclude, therefore, that defendants not only are given broad powers by the legislature but specific powers embracing the establishing of schools and attendance areas within the district. . . .'

The authority of local school boards delineated in Hiers, supra, was reenacted by the Michigan legislature when the School Code of 1976 was adopted. Pursuant to MCLA 380.1283; MSA 15.41283, each board of education is empowered to establish attendance areas within the school district. In exercising this statutory authority, local boards of education assign pupils to schools on the basis of their residence within the attendance areas established by such boards.

It should also be noted that the authority of local Michigan school boards to establish attendance areas within their respective school districts was recognized by the United States Supreme Court in Milliken v Bradley, 418 US 717, 742 n 20 (1974).

Michigan's Constitution does not deal expressly with the issue of whether the State Board of Education or local boards of education fix attendance areas. The School Code of 1976, MCLA 380.1283; MSA 15.41283, places such authority in the hands of local boards of education. As a result, the local boards of education have the power to establish attendance areas unless the courts have ruled to the contrary. A review of Michigan case law reveals that Michigan's courts have never held that the State Board of Education has the power to fix local school district attendance areas. Further, there is no case law or statutory enactments that empower the State Board of Education to require local school districts to achieve any particular degree of racial balance in their assignment of pupils.

In Welling v Livonia Board of Education, 382 Mich 620, 623; 171 NW2d 545, 546 (1969), the Court recognized the authority of the legislature, under Const 1963, art 8, Sec. 2, to '. . . set up a system of free public elementary and secondary schools by enacting the provisions of the school code.' Since the effective date of the 1963 Michigan Constitution, Michigan's appellate courts have recognized the authority of the legislature over both school district boundaries and attendance areas within school districts. Penn School District No 7 v Lewis Cass Intermediate School District Board of Education, 14 Mich App 109; 165 NW2d 464 (1968); Airport Community Schools v State Board of Education, 17 Mich App 574; 170 NW2d 193 (1969); Hiers v Detroit Superintendent of Schools, supra. Thus, the conclusion is compelled that Const 1963, art 8, Sec. 3 does not confer authority upon the State Board of Education to establish attendance areas for local school districts.

While the law is settled in Michigan that the State Board of Education is not empowered to impose binding racial balance regulations upon school districts, it is equally well settled that local school districts may establish or alter attendance areas for the purpose of achieving increased racial balance within their respective school districts. Mason v Board of Education of the School District of the City of Flint, 6 Mich App 364; 149 NW2d 239 (1967). Indeed, the State Board of Education and the Michigan Civil Rights Commission have admonished local boards of education to consider racial balance in establishing and altering attendance areas. Jipping v Lansing Board of Education, 15 Mich App 441; 166 NW2d 472 (1968), leave to appeal denied, 382 Mich 760 (1969).

Turning to the question of racial balance of staff, the United States Supreme Court has held that the assignment of personnel to the public schools on the basis of race is violative of the federal Equal Protection Clause. United States v Montgomery County Board of Education, 395 US 225 (1969). However, The Court has also ruled that the Constitution does not require any particular degree of racial balance of public school staff. Montgomery County Board of Education, supra, 395 US, at p 236. Swann, supra, 402 US, at p 24.

Under Michigan law, the authority to hire and assign personnel to the public schools has been reposed by the legislature in the boards of education of local school districts. (2) MCLA 380.1231; MSA 15.41231, MCLA 380.1247; MSA 15.41247, MCLA 380.1248; MSA 15.41248, Milliken v Bradley, supra, 418 US, at p 742 n 20. Higgins v Board of Education of the City of Grand Rapids, Michigan, 395 F Supp 444, 474-478, 484, 489-490 (WD Mich, 1973), aff'd, 508 F2d 779 (CA 6, 1974).

Neither the legislature has granted nor the courts have found that the State Board of Education has the power to require local boards of education to hire or assign their staffs to achieve any particular degree of racial balance. Instead, the hiring and assigning of educational personnel in Michigan's school districts has been reposed in the boards of education of such school districts.

Turning now to whether the State Board of Education is empowered to enforce racial balance regulations by terminating state school aid payments to school districts for noncompliance, the people have provided, in Const 1963, art 9, Sec. 11, as follows:

'There shall be established a state school aid fund which shall be used exclusively for aid to school districts, higher education and school employees' retirement systems, as provided by law. One-half of all taxes imposed on retailers on taxable sales at retail of tangible personal property, and other tax revenues provided by law, shall be dedicated to this fund. Payments from this fund shall be made in full on a scheduled basis, as provided by law.' (emphasis added)

The address to the People accompanying Const 1963, art 9, Sec. 11 provides, in pertinent part, as follows:

'This is a new section which directs the legislature to establish a School Aid Fund to which must be dedicated one-half of all state sales tax collections and such other revenues as the legislature may determine. Moneys in the fund must be used for support of education and school employees' retirement systems. Payments from the fund are to be made in full on a basis scheduled by legislative enactment.' (emphasis added) 2 Official Record, Constitutional Convention 1961, p 3400

The Michigan Supreme Court has held that where the phrase 'provided by law' has been employed in the 1963 Michigan Constitution, the legislature is to do the entire job of implementing the constitutional provision. Beech Grove Investment Company v Civil Rights Commission, 380 Mich 405, 418-419; 157 NW2d 213, 219 (1968). Thus, it is manifest that the power to appropriate and allocate state school aid funds is reposed in the Michigan legislature.

In 1972 PA 258; MCLA 388.1101 et seq; MSA 15.1919(501) et seq, the legislature has enacted the statute appropriating and allocating state school aid funds to school districts. A review of that statute reveals no provisions that would empower the State Board of Education to terminate state school aid funds to school districts for noncompliance with student or staff racial balance regulations of the State Board of Education.

In summary, neither the people, in the state Constitution, nor the legislature, in its statutory enactments, have empowered the State Board of Education to impose binding student and staff racial balance regulations that include sanctions against local school districts for noncompliance, such as the termination of state school aid payments. (3) Thus, I am constrained to hold that the State Board of Education lacks such power. However, under Michigan law, local school boards of education may consider race in assigning students and faculty for the purpose of increasing racial balance within their respective school districts.

Frank J. Kelley

Attorney General

(1) Michigan law also prohibits the purposeful assignment of students to separate schools on the basis of race. Const 1963, art 1, Sec. 2, art 8, Sec. 2 and MCLA 380.1146; MSA 15.41146.

(2) Under Michigan law, boards of education are required to bargain collectively with representatives of their employees concerning wages, hours and other terms and conditions of employment. MCLA 423.215; MSA 17.455(15).

(3) The new Michigan civil rights act, 1976 PA 453; MCLA 37.2101 et seq; MSA 3.548(101) et seq, prohibits racial discrimination by educational institutions. However, that statute does not require any particular racial balance of either pupils or faculty in educational institutions.