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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. 5827 December 11, 1980 SCHOOLS AND SCHOOL DISTRICTS: Power of board of education to accept a fee or payment for transportation of pupils A board of education for a school district may not charge or accept a fee for transporting children to and from school for the regular school day, regardless of the distance that the children reside from school. The Honorable Richard D. Fessler State Representative State Capitol Lansing, Michigan You have requested my opinion on the following four questions: '1. Could the Board of Education accept a fee or payment for transportation of students who live less than one and one-half miles from school? '2. If the board accepts a fee or payment from parents, would this then change the liability of the board in such a way that it would be considered a commercial carrier? '3. If the board were to offer the opportunity for parents to pay a fee for transportation of children from a particularly congested area would it need to offer the same consideration to every parent who has children in the district who live less than one and one-half miles from school? '4. Would the board have to provide transportation for students whose parents either cannot afford to pay the fee or payment for transportation less than one and one-half miles or whose parents refuse to pay such a fee?' In responding to your first question, it must be noted that in the School Code of 1976, 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq, Sec. 1321(1), the Legislature has plainly provided: 'A board of a school district providing transportation for its resident pupils, except handicapped pupils transported under article 3, shall provide transportation for each resident pupil in the elementary and secondary grades for whom the school district is eligible to receive state school aid for transportation. (a1) These pupils shall be attending either the public or the nearest state approved nonpublic school in the school district to which the pupil is eligible to be admitted. Transportation shall be without charge to the pupil, the parent, guardian, or person standing in loco parentis to the pupil.' (Emphasis added.) In 1976 PA 451, supra, Sec. 1332(1), the Legislature has provided: 'The board of a school district may collect a fee for transporting pupils enrolled in grades K to 12 to or from nonmandatory and noncredit events sponsored by the school district. Fees charged shall cover expenses for the trips involved, under rules promulgated by the state board.' Reading these two statutory sections together, it is clear that the Legislature has prohibited boards of education from charging any fee for transporting students to and from school for the regular school day. On the other hand, the Legislature has authorized school boards to charge a fee for transporting students to or from voluntary, noncredit school sponsored events. The distinction between transportation to school for the regular school day and transportation for extra-curricular activities is consistent with the holding in Bond v Ann Arbor School District, 383 Mich 693, 702; 178 NW2d 484, 488 (1970), that the requirement of free public elementary and secondary education in Const 1963, art 8, Sec. 2, only applies to the necessary elements of any school's activity or to the integral and fundamental parts of elementary and secondary education. (aa1) See also, Paulson v Minidoka County School District No. 331, 93 Idaho 469; 463 P2d 935 (1970), which held that the requirement of free public schools in article 9, Sec. 1 of the Idaho Constitution did not preclude charges for extra-curricular activities. In answer to your first question, a board of education may not charge or accept a fee for transporting children to and from school for the regular school day. The answer to your first question renders it unnecessary to respond to your last three questions. Frank J. Kelley Attorney General (a1.)
(aa1.)
Const 1963, art 8, Sec. 2 does not require a school district to offer any particular course for credit or to provide transportation to its students. However, once a school district offers a particular course for credit or undertakes to transport its students to and from school for the regular school day, it may not, under Const 1963, art 8, Sec. 2, charge for either the course or the transportation.
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