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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. 5661

March 3, 1980

SCHOOLS AND SCHOOL DISTRICTS:

Provision of athletic equipment

A school district is not required to furnish pupils free gym clothes and shoes for a required physical education course. Where a school district requires a student to wear clothing or equipment of a specific color, style and manufacturer, or special clothing or special equipment in order to attend the required physical education course, the school district must provide the required clothing or equipment without charge.

Honorable Mary Keith Ballantine

State Representative

The Capitol

Lansing, Michigan

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

Does Const 1963, art 8, Sec. 2 require school districts to furnish pupils free gym clothes and shoes for required physical education courses?

Const 1963, art 8, Sec. 2 provides, in pertinent part, as follows:

'The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. . . .'

In Bond v Ann Arbor School District, 383 Mich 693, 702; 178 NW2d 484, 488 (1970), the Michigan Supreme Court held that the above-quoted language requires that pupils be provided free textbooks and school supplies. In reaching that result, the Court ruled:

'Applying either the 'necessary elements of any school's activity' test or the 'integral fundamental part of the elementary and secondary education' test, it is clear that books and school supplies are an essential part of a system of free public elementary and secondary schools.'

In Bond, supra, 383 Mich at 700-701; 178 NW2d at 487, the Court quoted with approval from Paulson v Minidoka County School District No. 331, 93 Idaho 469, 472; 463 P2d 935, 938 (1970), which held that under the Idaho Constitution, art 9, Sec. 1, textbooks must be supplied free of charge as they 'are necessary elements of any school's activity.'

It should be observed that in Bond, supra, no claim was made that Const 1963, art 8, Sec. 2, supra, required school districts to provide free clothing. Further, in Paulson, supra, 93 Idaho at 473, n 9; 463 P2d at 939, n 9, which was relied upon by the Michigan Supreme Court in Bond, supra, the Court expressly stated that, unlike textbooks, free school clothing need not be provided to pupils.

In Board of Education v Sinclair, 65 Wis 2d 179, 182, 187; 222 NW2d 143, 145, 148 (1974), the Court ruled that a constitutional requirement to provide free educational equipment did not include gym suits.

After the decision in Bond, supra, the State Board of Education adopted a position statement entitled Free Textbooks, Materials and the Charging of Fees (March, 1972). In that document at VIII, Clothing and Food, p 9, it is provided in, pertinent part:

'A. School districts may require fees for clothing and food which are offered during the regular school program.

'B. Swimming suits, gym clothing, gym shoes, football shoes, baseball shoes, spats, leggings or special shoes to wear with a band uniform need not be supplied by the school district. School districts may make a reasonable charge for the use of any of these items that it supplies to its students. Parents, however, may purchase or supply their own above-mentioned items that are satisfactory for use.

'C. If a specific color, style and manufacturer is required by the school district, then the district must supply the item free of charge.

'D. Special clothing (not robes or band uniforms) for extracurricular activities such as choir or band or orchestra need not be supplied or paid for by the school district. Example: for choir, a white blouse or skirt, dark trousers or skirt, and black shoes and stockings.

' (Emphasis supplied.)

An interpretation of a statute by the governmental agency charged with its enforcement is "always entitled to the most respectful consideration." Boyer-Campbell Co v Fry, 271 Mich 282, 296; 260 NW 165 (1935). Thus, deference should be given to the position statement of the State Board of Education and its statements on clothing, which implements the School Code of 1976, 1976 PA 451, Secs. 1502-1503; MCLA 380.1502-380.1503; MSA 15.41502-15.41503, requiring health and physical education courses.

It is, therefore, my opinion that school districts are not required to furnish pupils free gym clothes and shoes for required physical education courses. However, if the school district requires a student to wear clothing or equipment of a specific color, style and manufacturer, or special clothing or special equipment in order to attend the required physical education course, the school district must provide the required clothing or equipment without charge.

Frank J. Kelley

Attorney General

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