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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. 5672 March 31, 1980 CONSTITUTIONAL LAW: Const 1963, art 8, Sec. 3 STATE BOARD OF EDUCATION: Authority regarding public institutions of higher education DEPARTMENT OF MANAGEMENT AND BUDGET: Authority regarding higher education management Neither the Governor nor the Legislature may be compelled to recommend or appropriate any particular level of funding to assist the State Board of Education in exercising its constitutional authority regarding public higher education. The Department of Management and Budget may not assume the authority of the State Board of Education regarding public institutions of higher education. Dr. Eugene T. Paslov Interim Superintendent of Public Instruction Michigan National Tower Lansing, Michigan 48933 On behalf of the State Board of Education, you have requested my opinion on the following questions: '1. May the State Board of Education's constitutional authority regarding public institutions of higher education, as set forth in the second sentence of the first paragraph of the Constitution, 1963, Article VIII, Section 3, be assumed as a function of the Department of Management and Budget or any other state agency rather than the State Board of Education? '2. Does the elimination of funding for Higher Education Management from the 1981 Executive Budget for the Department of Education (J 16-17) and the assumption of these functions by other state agencies violate the provisions of Article VIII, Section 3, of the Michigan Constitution of 1963 requiring the State Board of Education to serve as the general planning and coordinating body for all public education, including higher education?' In your letter, you note that the Executive Budget for fiscal 1980-1981 submitted to the legislature proposes eliminating funding for all nine positions in the Higher Education Management Service Area of the Michigan Department of Education. At pp J 16-17 of the Executive Budget, this reduction is described as follows: 'Higher Education Management Services, in the Bureau of Postsecondary Education, evaluates the need for new instructional offerings at higher education institutions, advises the State Board of Education on long-range higher education financial requirements, and administers state and federal grant programs. In order to reduce general fund expenditures, it is recommended that GF-GP funding for the Higher Education Management Service Area be eliminated and its data gathering and analysis functions be assumed by other state agencies, saving $214,600 in GF-GP financing.' Further, you observe that the Budget Message of the Governor for fiscal 1980-1981, at p 13, states: '. . . These reductions include funding for the Higher Education Service Area, the Associate Superintendent for Higher Education, the School Aid Audit Unit, the Office of Career Education, the Adult Education Compliance staff, and the grant to the Governor's Commission on families. I anticipate that the data-gathering and analyses activities of the Higher Education Service Area will be assumed by the Department of Management and Budget.' In Const 1963, art 8, Sec. 3 the people have provided: 'Leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith. . . .' (emphasis added) In Regents of the University of Michigan v State of Michigan, 395 Mich 52, 71-76; 235 NW2d 1, 9-12 (1975), the Michigan Supreme Court expressly recognized the authority of the State Board of Education, under Const 1963, art 8, Sec. 3, to require information from the universities concerning proposed new university programs and to advise the legislature concerning the financial requirements of public institutions of higher education. The general power to plan and coordinate for public higher education and to advise the legislature as to the financial needs of public higher education have been vested by the people in the State Board of Education and may not be assumed by any other governmental body. OAG, 1971-1972, No 4735, p 75 (January 19, 1972). Thus, in answer to your first question, it is my opinion that the State Board of Education's constitutional authority regarding public institutions of higher education, as set forth in the second sentence of the first paragraph of Const 1963, art 8, Sec. 3, may not be assumed as a function of the Department of Management and Budget or any other agency of state government. Turning to your second question, the law is settled that the courts will neither mandamus the Governor to propose expenditures, Sutherland v Governor, 29 Mich 320 (1874); Born v Dillman, 264 Mich 440; 250 NW 282 (1933), nor mandamus the state legislature to appropriate state funds. City of Jackson v Commissioner of Revenue, 316 Mich 694; 26 NW2d 569 (1947); Board of Education of the City of Detroit v Superintendent of Public Instruction, 319 Mich 436; 29 NW2d 902 (1947). In the Regents case, supra, the Michigan Supreme Court acknowledged the legislature's power of the purse as follows: 'We commend the Legislature upon its disposition to ensure harmony between two constitutional bodies. It is fundamental to effective and efficient government that the three branches of government make every effort to harmonize their activities and responsibilities. It is academic that whatever posers the universities may constitutionally hold, the Legislature holds the power of the purse. Regardless of what this Court might find, the matter remains one of power and politics. 'As a practical matter most of the questions which arise involve directly or indirectly the Legislature's power of the purse which has a governmental reality which in some ways transcends the significance of the universities' constitutional power, although that cannot be ignored or denied.' 395 Mich, at 70-71; 235 NW2d, at 9 In answer to your second question, the constitutional authority of the State Board of Education to plan and coordinate for public higher education may not be assumed by any other governmental body. However, the Constitution does not impose upon either the Governor or the legislature any judicially enforceable duty to, respectively, either recommend or appropriate any particular level of funding for Department of Education personnel to assist the State Board of Education in exercising its constitutionally conferred planning and coordinating function for public higher education. Frank J. Kelley Attorney General
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