STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5884

April 20, 1981

SCHOOLS AND SCHOOL DISTRICTS:

Duty of school district to provide special education services to nonpublic school pupils in the district

A school district must provide auxiliary special education services to a handicapped pupil attending a nonpublic school located within the district, even though the pupil may reside in another district. The Legislature has not required the school district of residence of the nonpublic school pupil to reimburse the school district providing such services.

The Honorable William R. Bryant, Jr.

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on two questions which may be stated as follows:

The School Code of 1976, 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq, Sec. 1296 requires a school district which provides certain enumerated auxiliary services to its resident public school pupils to also provide those services to both resident and nonresident pupils attending nonpublic schools located within the public school district boundaries. OAG, 1973-1974, No 4842, p 213 (December 9, 1974). Auxiliary services include, inter alia, the following special education services: teacher of speech and language services, school social work services, school psychological services, teacher consultant services and other ancillary services for handicapped pupils. The intent of the Legislature is clear that such special education services be provided to all pupils educated within the boundaries of the school district on an equal basis regardless of whether they reside within the district.

The provision of such health and welfare measures to nonpublic school pupils was upheld in Traverse City School District v Attorney General, 384 Mich 390; 185 NW2d 9 (1971).

At the time that the auxiliary services section was first enacted by 1965 PA 343, which added Section 622 to the School Code of 1955, 1955 PA 269, school districts were authorized, but not required, to provide special education services. See 1955 PA 269, Secs. 771, 775 and 775a. In 1971, 1955 PA 269 was amended by 1971 PA 198 to require school districts to provide special education programs and services to all handicapped persons in their districts. These requirements were continued under the School Code of 1976, supra, in Secs. 1701-1766. Pursuant to Secs. 1711(1)(f) and 1751(1), each local school district is mandated to provide special education programs and services for its resident handicapped public school students.

The claim that the School Code of 1976, Sec. 1296, supra, only applies to those special education auxiliary services that a local school district has the option of providing or not providing to its residents public school pupils is untenable because it would make such portions of the School Code, Sec. 1296, meaningless. The law is well settled that meaning and effect be given to every portion of the statute.

It is a basic rule of statutory construction that in interpreting a statute the entire act must be read as a whole, and the meaning to be given to one section should be arrived at after due consideration of other sections, so as to produce a harmonious and consistent enactment as a whole. Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich 420; 102 NW2d 584 (1960); Simmons v Marlette Board of Education, 73 Mich App 1; 250 NW2d 777 (1976). The result to be achieved is to give meaning and effect to the requirements of both the School Code of 1976, supra, Sec. 1296 and Secs. 1701-1766. Thus, mandated auxiliary special education services are required to be provided to both public and nonpublic school students.

Moreover, the mandatory special education provisions of the School Code of 1976, supra, Secs. 1701-1766, contain no express language that purports to relieve school districts of their obligation to provide auxiliary special education services to nonpublic school students under Section 1296 of the same statute. Further, it would, indeed, be anomalous to conclude that the enactment of mandatory special education legislation had the effect of depriving nonpublic school students of auxiliary special education services that heretofore they had been receiving.

In addition, the current state plan, as well as the predecessor plan, for special education approved by the State Board of Education and filed with the United States Department of Education, pursuant to 89 Stat 782 (1975); 20 USC 1413, provides, at pp 97-99, that school districts shall provide auxiliary special education services to both resident and nonresident students attending nonpublic schools located in the school district. This consistent administrative construction of a statute is entitled to the most respectful judicial consideration and it will not be overruled without cogent reasons. Board of Education of Oakland Schools v Superintendent of Public Instruction, 401 Mich 37; 257 NW2d 73 (1977).

In answer to your first question, it is my opinion that when a handicapped student attends a nonpublic school located outside the school district of his or her residence, the school district in which the nonpublic school is located is required to provide auxiliary special education services to such student.

Turning to your second question, it must be noted that school districts providing special education auxiliary services to nonpublic school students pursuant to the School Code of 1976, supra, Sec. 1296 may use both local property tax revenues and state school aid funds to pay for such auxiliary services. State school aid funds paid to school districts, including categorical special education funds, are derived from state taxes paid by all of the people of Michigan. See Const 1963, art 9, Sec. 11 and 1979 PA 94; MCLA 388.1601 et seq; MSA 15.1919(901) et seq. In addition, school districts providing auxiliary special education services receive federal special education funds. 89 Stat 776 (1975); 20 USC 1411. The Legislature has not enacted any statutory provisions pursuant to which the school district providing auxiliary services may compel the school district in which the nonpublic school student resides to reimburse it for the cost of providing such services. The Legislature may, of course, enact such legislation.

In answer to your second question, it is my opinion, therefore, that a school district providing auxiliary special education services to a nonresident handicapped student attending a nonpublic school located in the school district may not compel the school district in which the handicapped student resides to reimburse it for the cost of providing such services.

Frank J. Kelley

Attorney General