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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. 6271 February 7, 1985 SCHOOLS AND SCHOOL DISTRICTS: Provision of alternate education program for permanently expelled or suspended non-handicapped student of compulsory school age The board of education of a school district which, in accordance with due process requirements, suspends, for a lengthy period of time, or permanently expels a non-handicapped student who is subject to the compulsory education law, is not required to provide an alternate education program for such student. Dr. Phillip E. Runkel Superintendent of Public Instruction Ottawa Street Building, South Tower Lansing, Michigan You have requested my opinion whether a board of education which suspends, for a lengthy period of time, or permanently expels, a student who is subject to the compulsory education requirements, is required to provide an alternative education program for such student. In the School Code of 1976, the Legislature has made provision for compulsory public school attendance as follows: '(1) Except as provided in subsections (2) and (3), every parent, guardian, or other person in this state having control and charge of a child from the age of 6 to the child's sixteenth birthday, shall send that child to the public schools during the entire school year. The child's attendance shall be continuous and consecutive for the school year fixed by the school district in which the child is enrolled. . . .' MCL 380.1561; MSA 15.41561. MCL 380.1311; MSA 15.41311, authorizes boards of education to suspend or expel students as follows: 'The board may authorize or order the suspension or expulsion from school of a pupil guilty of gross misdemeanor or persistent disobedience when in the board's judgment the interest of the school may demand the authorization or oder. If there is reasonable cause to believe that the pupil is handicapped, and the school district has not evaluated the pupil in accordance with rules of the state board, the pupil shall be evaluated immediately by the intermediate school district of which the school district is constituent in accordance with section 1711.' The statutory power of a board of education to authorize or order student suspensions or expulsions is subject to a variety of limitations. A board of education may not, pursuant to MCL 380.1311; MSA 15.41311, suspend or expel a pupil for negligent conduct or petty or trivial offenses. A pupil may only be suspended or expelled for wilfull misconduct detrimental to the school or persistent disobedience of reasonable rules and regulations of the school. Holman v Trustees of School-Dist No 5, Twp of Avon, 77 Mich 605; 43 NW 996 (1889). A public school student's statutory right to a public school education is a property interest which may not be taken away for the student's misconduct without conformity to the minimum procedures required by the Due Process Clause of the Fourteenth Amendment. Goss v Lopez, 419 US 565; 95 S Ct 729; 42 L Ed 2d 725 (1975). In Goss v Lopez, 419 US, supra, at p 581, the Court held that for student suspensions of ten days or less, 'the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.' This notice and hearing may be accomplished by way of an informal discussion of the alleged misconduct by the school disciplinarian and the student. Further, the Court made it clear that '[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.' Goss v Lopez, 419 US, supra, at p 584. The flexible procedural requirements of the Due Process Clause of the Fourteenth Amendment depend upon an accommodation of the competing interests of the student and the public school authorities. There is no single set of judicially determined procedural requirements for lengthy suspensions or expulsions that applies universally to every conceivable situation. Rather, a balance must be struck between the student's interest in avoiding mistaken or unfair exclusion and the school authorities' interest in safeguarding the educational process for all the other students without prohibitive cost. In striking that balance, based upon the specific facts at hand, a court will determine the timing and content of the notice and the nature of the hearing that is required. Goss v Lopez, 419 US, supra, at pp 577-580. In Goss v Lopez, 419 US, supra, at p 576, n 8, the Court referred to 'the landmark decision' in Dixon v Alabama State Bd of Educ, 294 F2d 150 (CA 5, 1961), cert den, 368 US 930 (1961), dealing with the procedural requirements for expulsion from a tax-supported college or university. The guidance provided by the court in Dixon, supra, is set forth below as illustrative of the procedural requirements of the Due Process Clause in cases involving lengthy suspensions or expulsions from tax-supported educational institutions. 'For the guidance of the parties in the event of further proceedings, we state our views on the nature of the notice and hearing required by due process prior to expulsion from a state college or university. They should, we think, comply with the following standards. The notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion under the regulations of the Board of Education. The nature of the hearing should vary depending upon the circumstances of the particular case. The case before us requires something more than an informal interview with an administrative authority of the college. By its nature, a charge of misconduct, as opposed to a failure to meet the scholastic standards of the college, depends upon a collection of the facts concerning the charged misconduct, easily colored by the point of view of the witnesses. In such circumstances, a hearing which gives the Board or the administrative authorities of the college an opportunity to hear both sides in considerable detail is best suited to protect the rights of all involved. This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required. Such a hearing, with the attending publicity and disturbance of college activities, might be detrimental to the college's educational atmosphere and impractical to carry out. Nevertheless, the rudiments of an adversary proceeding may be preserved without encroaching upon the interests of the college. In the instant case, the student should be given the names of the witnesses against him and an oral or written report on the facts to which each witness testifies. He should also be given the opportunity to present to the Board, or at least to an administrative official of the college, his own defense against the charges and to produce either oral testimony or written affidavits of witnesses in his behalf. If the hearing is not before the Board directly, the results and findings of the hearing should be presented in a report open to the student's inspection. If these rudimentary elements of fair play are followed in a case of misconduct of this particular type, we feel that the requirements of due process of law will have been fulfilled.' Dixon, 294 F2d, supra, at pp 158-159 A decision of a board of education to suspend or expel a student may be subject to judicial review in a state court and a federal court upon claim of denial of a federally protected right. (1) This judicial review includes resolving claims that the suspension or expulsion in question was not based upon those procedures required by the Due Process Clause of the Fourteenth Amendment. See, Birdsey v Grand Blanc Community Schools, 130 Mich App 718, 725-726; 344 NW2d 342, 345-346 (1983); Darby v Schoo, 544 F Supp 428, 438 (WD Mich, 1982). Judicial review by state courts may also include determining whether the school authorities' factual findings of misconduct are supported by competent, material, and substantial evidence. Birdsey, 130 Mich App, supra, at pp 723-724. Finally, judicial review by a state court may also encompass a determination whether the sanction imposed upon the student is so disproportionate to the offense committed as to constitute an abuse of discretion. Birdsey, 130 Mich App, supra, at p 727. See also, Tanton v McKenney, 226 Mich 245, 252-253; 197 NW 510 (1924). The compulsory education requirements of MCL 380.1561; MSA 15.41561, with exceptions not here relevant, compel parents to send their children to public schools and compel the children to attend such schools. In the Matter of Karen Marable, 90 Mich App 7; 282 NW2d 221 (1979); lv den, 407 Mich 871 (1979); Flint Bd of Educ v Williams, 88 Mich App 8; 276 NW2d 499 (1979). The duties imposed by MCL 380.1561; MSA 15.41561, fall upon parents and children rather than upon boards of education. These compulsory education requirements, however, do not immunize students from removal from school based upon misconduct. Betts v Bd of Educ of the City of Chicago, 466 F2d 629, 635 (CA 7, 1972). A letter opinion addressed to then Superintendent of Public Instruction, Dr. John W. Porter, dated May 20, 1971, concluded that a local board of education was not required under existing statutes to provide 180 days of student instruction to students who had been suspended or expelled during the school year in question: 'The right of students to receive 180 days of student instruction, as defined by the state board of education, is conditioned upon his compliance with reasonable rules, regulations and requirements of public school authorities. He must comply with all reasonable rules and regulations and must not commit gross misdemeanors or be guilty of persistent disobedience. Tanton v McKenney, supra; Flory v Smith, 134 SE 360 (Va. 1926). School authorities must reasonably control the behavior of their students if they are to provide an education for all of its students. A student who by his own volition and action has committed a gross misdemeanor or engaged in persistent disobedience forfeits his rights to a public education. Under such circumstances a suspended or expelled student is not entitled to the 180 days of student instruction.' Since 1971, the Legislature has not chosen to enact legislation that would change this result. Research has failed to disclose any applicable statute, administrative rule, or judicial precedent, except with regard to special education students, that requires a board of education to provide an alternative education program for a student that has received either a lengthy suspension or an expulsion. School age children in Michigan have by state law a legitimate entitlement to attend the public schools in the school district in which they reside. See, MCL 380.1147; MSA 15.41147; MCL 380.1561; MSA 15.41561, and compare, Goss v Lopez, 419 US, supra, at p 573-574. However, public education is not a fundamental right under either the United States or Michigan Constitutions. San Antonio Independent School Dist v Rodriguez, 411 US 1, 35; 93 S Ct 1278; 36 L Ed 2d 16 (1973); Sutton v Cadillac Area Public Schools, 117 Mich App 38, 42-43; 323 NW2d 582, 584 (1982); East Jackson Public Schools v State of Michigan, 133 Mich App 132, 137-138; 348 NW2d 303, 305-306, lv den, 419 Mich 943 (1984). A student, by his own misconduct, may forfeit his legitimate entitlement to attend the public school in the school district in which he resides. Some local boards of education provide, in their codes of student conduct, that suspended or expelled students receive some form of alternative instruction. An example of alternative instruction would be evening adult education classes. See, Darby v Schoo, 544 F Supp, supra, at p 434, n 2. Further, the Legislature may, if it so desires, amend the School Code of 1976 to require alternative education programs for students that receive lengthy suspensions or expulsions. See, Turner v Kowalski, 49 AD2d 943; 374 NYS2d 133 (1975). It is noted that a student eligible for services under the Education for All Handicapped Children Act, 84 Stat 175 (1970); 20 USC 1401 et seq, may not be expelled unless it is first determined, pursuant to the procedures required for a change of educational placement under the Education for All Handicapped Children Act, supra, that the student's disruptive behavior is not a manifestation of his handicap. Further, during the period of expulsion, there may not be a complete cessation of educational services. S-1 v Turlington, 635 F2d 342, 347-348 (CA 5, 1981), cert den, 454 US 1030; 102 S Ct 566; 70 L Ed 2d 473 (1981); Kaelin v Grubbs, 682 F2d 595, 602 (CA 6, 1982). Indeed, in Kaelin, 682 F2d, supra, at p 600, the court observed that the difference between expulsion of non-handicapped and handicapped students is that there may not be a complete cessation of educational services during the expulsion period for handicapped students. Based upon the foregoing, I am constrained to conclude that a board of education which suspends, for a lengthy period of time, or permanently expels, a non-handicapped student who is subject to the compulsory education law, is not required to provide an alternative education program for such student. It is my opinion, therefore, that the board of education of a school district which, in accordance with due process requirements, suspends, for a lengthy period of time, or permanently expels, a non-handicapped student who is subject to the compulsory education requirements, is not required to provide an alternative education program for such student. Frank J. Kelley Attorney General (1)
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