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. 5193

May 6, 1977

CONSTITUTIONAL LAW:

Equal protection classification.

SCHOOLS AND SCHOOL DISTRICTS:

State aid for student improvement in basic cognitive skills.

1972 PA 258, Ch 3, which allocates state school aid funds to school districts whose students obtain low test scores on state-wide assessment tests, does not violate the equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution and Const 1963, art 1, Sec. 2.

Mr. Dennis Dutko

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on a question which may be stated as follows:

Under Chapter 3 of 1972 PA 258; MCLA 388.1131 et seq; MSA 15.1919(531) et seq, does the procedure of allocating state funds to those school districts whose students achieve low test scores on the state wide assessment tests as opposed to those school districts whose students achieve high test scores and receive no Chapter 3 funds, constitute an invidious discrimination in violation of the equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, Section 2 of the Michigan Constitution?

Under Chapter 3 of 1972 PA 258, supra, the Legislature appropriates funds to eligible school districts, not to exceed $200 per pupil, provided at least 15% of the school districts' pupils and not less than 30 of its pupils are found to be in need of improvement in their basic cognitive skills. These funds are earmarked to establish or continue programs that are designed toward substantial improvement in the basic cognitive skills of eligible school districts' pupils '. . . who have extraordinary need for special assistance to improve their competencies in such basic skills . . .' 1972 PA 258, supra, Sec. 31. The allocation of funds is determined by 1972 PA 258, supra, Secs. 32, 33 and 34 as follows:

'Sec. 32. A district shall be eligible for allocations under section 31 if at least 15% of its total enrollment in grades K-6 and not less than 30 of its pupils in grades K-6, as described in section 31 and as computed under section 33, are found to be in need of substantial improvement in their basic cognitive skills except that districts which received such aid in 1970-71 for schools housing grades 7 and 8 shall be funded if the pupils in those schools are found eligible in a manner to be determined by the department.

'Sec. 33. The number of pupils in grades K-6 construed to be in need of substantial improvement in their basic cognitive skills in years 1975-76, 1976-77, and 1977-78 shall be calculated for each district by the following procedural steps:

'(a) Using the reading and mathematics tests scores of the statewide assessment battery given in the fall of the prior year, the percentage of the district's pupils in grade 4 who attained 40% or fewer of the reading objectives and the percentage of the district's pupils in grade 4 who attained 40% or fewer of the mathematics objectives shall be averaged. The aggregate enrollment of the district in grades K-4 on the official membership count date of the preceding school year shall be multiplied by this average percentage to determine the estimated number of pupils in grades K-4.

'(b) Using the reading and mathematics test scores of the statewide assessment battery given in the fall of the prior year, the percentage of the district's pupils in grade 7 who attained 40% or fewer of the reading objectives and the percentage of the district's pupils in grade 7 who attained 40% or fewer of the mathematics objectives shall be averaged. The aggregate enrollment of the district in grades 5 and 6 on the official membership count date of the preceding school year shall be multiplied by this average percentage to determine the estimated number of pupils in grades 5 and 6.

'(c) The number of pupils determined in subdivision (a) shall be added to the number of pupils determined in subdivision (b) and this resultant sum shall be construed to be the number of pupils of the district enrolled in grades K-6 who have extraordinary need or substantial improvement in their basic cognitive skills at the beginning of the school year.

'Sec. 34. The tentative allocations to each eligible district shall be determined by multiplying the number of pupils determined in subdivision (c) of section 33 by $200.00.' (emphasis added)

The Fourteenth Amendment to the United States Constitution states in pertinent part:

'. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.' US Const, Am XIV

Const 1963, art 1, Sec. 2 also affords equal protection to citizens of the State of Michigan. It provides:

'No person shall be denied the equal protection of the laws . . ..'

The equal protection guarantee of the Michigan Constitution, Const 1963, art 1, Sec. 2 affords the same rights as the Equal Protection Clause of the Constitution of the United States, US Const, Am XIV. Woldzko v Wayne Circuit Judge, 342 Mich 528, 534; 170 NW2d 9, 12 (1969). Thus, we must decide whether the foregoing statutory classification violates our constitutional equal protection guarantees.

In analyzing Chapter 3 of 1972 PA 258, supra, it should be observed that the United States Supreme Court has recognized that:

'Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State's social and economic legislation . . .' San Antonio School District v Rodriguez, 411 US 1, 35; 93 S Ct 1278, 1297-1298; 36 L Ed2d 16, 44 (1973)

Under the Equal Protection Clause of the Fourteenth Amendment, the traditional standard of review:

'. . . requires only that the State's system be shown to bear some rational relationship to legitimate state purposes. . . .' San Antonio School District v Rodriguez, supra, 411 US at 40; 93 S Ct at 1300; 36 L Ed2d at 47.

The traditional equal protection test in Michigan is set forth in Naudzius v Lahr, 253 Mich 216, 222-223; 234 NW 581, (1931), as follows:

"1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but it essentially arbitrary.' Lindsley v Natural Carbonic Gas Co., 220 US 61, 78; 31 S Ct 337, 340; 55 L Ed 369, 377 (1911).'

Turning to the question raised in your opinion request, the federal courts have considered the constitutionality of unequal dollar expenditures per pupil among school districts under the Equal Protection Clause.

In McInnis v Shapiro, 293 F Supp 327 (ND Ill, 1968), aff'd sub nom, McInnis v Ogilvie, 394 US 322; 89 S Ct 1197; 22 L Ed 308 (1969), responding to plaintiffs' claim that the Constitution requires educational expenditures be made only on the basis of pupils' educational needs, the three judge panel rejected such claim and granted defendants' motion to dismiss.

The Court held:

'There is no Constitutional requirement that public school expenditures be made only on the basis of pupils' educational needs without regard to the financial strength of local school districts. Nor does the Constitution establish the rigid guideline of equal dollar expenditures for each student.' (emphasis added) 293 F Supp at 336

In McInnis v Shapiro, supra, the Court also ruled as follows:

'. . . Expenses are not, however, the exclusive yardstick of a child's educational needs. Deprived pupils need more aid than fortunate ones. Moreover, a dollar spent in a small district may provide less education than one used in a large district. As stated above, costs may vary substantially throughout the state. The desirability of a certain degree of local experimentation and local autonomy in education also indicates the impracticability of a single, simple formula. . . .' 293 F Supp at 335-336

Further, the Court recognized the rationale for providing more funds for those students with greater educational needs, stating:

'Ideally, disadvantaged youth should receive more than average funds, rather than equal expenditures, so their potential can be fully developed. The rule coercing equal expenditures for all, especially if raised to a constitutional plane, would completely frustrate this ideal.' (emphasis added) 293 F Supp at 336 n 35

Thus, the Court held that, in some instances, it is both educationally desirable and constitutionally permissible to expend greater sums for those children with greater educational needs.

In Burruss v Wilkerson, 310 F Supp 572 (WD, Va, 1969), aff'd, 397 US 44; 90 S Ct 812; 25 L Ed 2d 37 (1970), in response to an educational needs claim similar to that advanced in McInnis v Shapiro, supra, the three judge panel rejected such claim, citing McInnis as precedent.

More recently in San Antonio School District v Rodriguez, supra, a class action was brought on behalf of school children said to be members of poor families who resided in school districts having a low property base. Plaintiffs made the claim that in Texas the reliance on local property taxation favored the more affluent and violated the equal protection requirements because of substantial inter-district disparities in per pupil expenditures resulting primarily from differences in the value of assessable property among school districts. The three judge district court held the Texas system of financing public education unconstitutional under the equal protection clause of the Fourteenth Amendment. See, 337 F Supp 280 (WD Tex, 1971).

The United States Supreme Court, however, reversed and held that under the traditional equal protection test the Texas system, which assured basic education for every child in the state, bore a rational relationship to a legitimate state purpose and did not violate the Equal Protection Clause of the Fourteenth Amendment.

The Court noted:

'. . . [A]t least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages. Nor indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense.' San Antonio School District v Rodriguez, supra, 411 US at 24; 93 S Ct at 1291-1292; 36 L Ed 2d at 37

In view of the foregoing, it is apparent that our constitutions do not require equal dollar expenditures per pupil among school districts. The state legislature in enacting Chapter 3 of 1972 PA 258, supra, has determined it desirable to appropriate additional monies to those school districts whose students need substantial improvement in their basic cognitive skills. Clearly, the legislative purpose, to expend greater sums of money for those students with greater educational needs, bears a rational relationship to a legitimate state purpose.

In a letter opinion addressed to Senator Gilbert Bursley and Senator Jack Faxon dated April 27, 1971 upholding the constitutionality of 1957 PA 312, Sec. 11, as last amended by 1970 PA 100, MCLA 388.621; MSA 15.1919(61), providing state grants for transportation, against challenge under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and Const 1963, art 1, Sec. 2, the opinion contained the following caveat:

'Further, it should be observed that pursuant to Section 11 of the State School Aid Act, supra, the allotments for transportation are paid to school districts. The law is settled that school districts, as distinguished from individual persons residing therein, have no legally protected rights under the Federal or the Michigan Equal Protection Clause which they may assert in opposition to state statutes enacted by their creator, to state legislature. Williams v Mayor and City Council of Baltimore, 289 US 36, 53 S Ct 431, 77 L Ed 1015 (1933); Triplett v Tiemann, 302 F Supp 1239 (D Neb, 1969); School District of the City of Lansing v State Board of Education, 367 Mich 591 (1962).'

It is, therefore, my opinion that Chapter 3 of 1972 PA 258, supra, is not violative of the equal protection guarantee under the Fourteenth Amendment of the United States Constitution or Const 1963, art 1, Sec. 2.

Frank J. Kelley

Attorney General