STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5881

April 21, 1981

SCHOOLS AND SCHOOL DISTRICTS:

Prohibition on inclusion of sex education instruction in required class

Michigan law provides that a parent or guardian has the right to have a pupil excused from a sex education class and that the class shall be elective and not a requirement for graduation.

A board of education of a school district may not include sex education instruction in any class or course which students are required to take.

The Honorable Francis R. Spaniola

State Representative

State Capitol

Lansing, Michigan

You have requested my opinion whether a board of education may include any sex education instruction in any class that students are required to take.

In the School Code of 1976, 1976 PA 451, Sec. 1507; MCLA 380.1507; MSA 15.41507, the Legislature has provided:

In connection with your letter, this office has been informed that at least one school district has included a unit on sex education in a required eighth grade home economics class. In that district, we are advised pupils whose parents wish to have them excused from the sex education unit or pupils who wish to be excused from the sex education unit are excused upon written request. However, these pupils are required to take the remaining portions of the course. School authorities, we are further advised, justify this practice on the theory that the Legislature did not use the words 'class' and 'course' interchangeably but, rather, that 'course' refers to the program of instruction, while 'class' only refers to the particular period of time that the course is taught.

Testing this alleged distinction between 'course' and 'class,' we turn first to the definition of the word 'class.' In Warmington v Employment Security Department, 12 Wash App 364; 529 P2d 1142, 1144 (1975), the Court, relying upon Merriam-Webster Third New International Distionary (1969), held that the ordinary meaning of the word 'class' in the context of an educational institution is:

Clearly, the above quoted definition of 'class' is broader than the particular periods of time that a course is taught.

In Hobolth v Greenway, 52 Mich App 682; 218 NW2d 98, lv app den, 392 Mich 789 (1974), the Court of Appeals, in the context of sex education, equated the statutory term 'classes' in the predecessor school code, 1955 PA 269, Sec. 789c, with the word 'course.'

It should be noted that a reading of 1976 PA 451, Sec. 1507(2) and (3), supra, manifests a legislative intent that the Legislature considered the terms 'class' and 'course' to be synonymous.

The Legislature has expressly provided in 1976 PA 451, Sec. 1507(3), supra, that parents have a right to review the contents of any course in which family planning or reproductive health are discussed before they exercise their right to have their child excused from the class. School authorities may not avoid the effect of 1976 PA 451, Sec. 1507(3), supra, by including any sex education instruction in a required class. This is expressly prohibited by law.

Finally, as set forth in 1976 PA 451, Sec. 1507(3), supra, quoted above, the State Board of Education has determined the form and content of the required parental notice, a copy of which is attached. That notice form uses the words 'class' and 'course' interchangeably. Thus, the conclusion is compelled that the word 'class,' as employed in 1976 PA 451, Sec. 1507(2), supra, refers to a body of students meeting periodically to study the same subject.

It is, therefore, my opinion that 1976 PA 451, Sec. 1507(2) and (3), supra, prohibits a board of education of a school district from including any sex education instruction in any class or course that students are required to take.

Frank J. Kelley

The local school district shall use the written notice provided below to notify parents. Local school districts may wish to attach additional material to the notice.

..........

________

NAME OF SCHOOL

________

DATE

________

ADDRESS

The Board of Education has established a program of instruction entitled ________ CLASS OR COURSE OF INSTRUCTION in which matters relating to family planning and birth control will be taught.

According to law (PA 226 of 1977) you have the right to review the materials to be used in the class or course of instruction. The local board of education, in compliance with the statute, has made the materials available for your review. If you wish, please contact the school at ________ Telephone No. to make arrangements for review of the materials.

Your child is eligible to participate in this class or course of instruction. By law you have the right to excuse your child from participation if you choose. If you wish to exercise your right to excuse your child, without penalty from instruction in reproductive health, including family planning, please send written notice to ________

Sincerely,

Superintendent of Schools

(or designated representative)