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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. 6521 June 3, 1988 CONSTITUTIONAL LAW: Const 1963, art 9, Sec. 29--funding of instruction on communicable diseases, including AIDS SCHOOLS AND SCHOOL DISTRICTS: Sex education instruction In imposing a duty on school districts to include Aquired Immunodeficiency Syndrome within the instruction on communicable diseases, the Legislature has not required school districts to provide sex education instruction. The duty of school districts to provide instruction on communicable diseases antedates Const 1963, art 9, Sec. 29, and the express inclusion of AIDS within such instruction may be, but is not required to be, funded by the state. Honorable Michael E. Nye State Representative The Capitol Lansing, Michigan You have requested my opinion on two questions which may be phrased as follows: 1. Does the AIDS (Acquired Immunodeficiency Syndrome) instruction required by Sec. 1169 of the School Code of 1976, as last amended by 1987 PA 185, now require school districts to provide the sex education instruction previously permitted by Sec. 1507(1) of the School Code of 1976? 2. Under Const 1963, art 9, Sec. 29, is the state required to pay 100% of the costs of the AIDS instruction required by Sec. 1169 of the School Code of 1976, as last amended by 1987 PA 185? 1987 SB 115 was enacted into law as 1987 PA 185. When SB 115 was introduced, Sec. 1169 of the School Code of 1976, MCL 380.1169; MSA 15.41169, provided as follows: 'The principal modes by which dangerous communicable diseases are spread and the best methods for the restriction and prevention of these diseases shall be taught in every public school in this state.' At the time SB 115 was introduced, Sec. 1507(1) of the School Code of 1976, MCL 380.1507; MSA 15.41507, provided: 'A board of a school district may engage qualified instructors and provide facilities and equipment for instruction in sex education, including family planning, human sexuality, and the emotional, physical, psychological, hygienic, economic, and social aspects of family life. Instruction may also include the subjects of reproductive health and the recognition, prevention, and treatment of venereal disease.' (Emphasis added.) SB 115, was introduced to amend only Sec. 1507 of the School Code of 1976, supra, and in pertinent part to provide as follows: 'A board of a school district SHALL engage qualified instructors and provide facilities and equipment for instruction in sex education, including family planning, human sexuality, and the emotional, physical, psychological, hygienic, economic, and social aspects of family life. Instruction SHALL also include the subjects of reproductive health and the recognition, prevention, and treatment of venereal disease AND OF ACQUIRED IMMUNODEFICIENCY SYNDROME.' However, during the course of the legislative process, the Senate adopted a substitute to SB 115 (S-1) to amend Sec. 1169 of the School Code of 1976, supra, to provide as follows: '(1) The principal modes by which dangerous communicable diseases, INCLUDING, BUT NOT LIMITED TO, ACQUIRED IMMUNODEFICIENCY SYNDROME, are spread and the best methods for the restriction and prevention of these diseases shall be taught in every public school in this state.' 1987 Journal of the Senate 2618 (No 72, October 8, 1987). The House amended SB 115 as substituted by the Senate to renumber the section and to add a subsection (2) to Sec. 1169 to provide: '(2) The curricula to be used for acquired immunodeficiency syndrome required to be taught under subsection (1) shall be approved by the appropriate local board of education prior to its use in the school setting.' 1987 Journal of the House (No 91, November 4, 1987). SB 115 was enacted without further change. In light of this legislative history, it is clear that the Legislature, by enacting 1987 PA 185, did not intend to require school districts to provide the sex education instruction previously permitted by Sec. 1507(1) of the School Code of 1976, MCL 380.1507; MSA 15.41507. The legislation, as introduced, would have done precisely that. However, the Legislature amended SB 115, before its enactment into law, to leave Sec. 1507(1) of the School Code of 1976 intact as a permissive grant of authority. It is my opinion, in answer to your first question, that the AIDS instruction required by Sec. 1169 of the School Code of 1976, as last amended by 1987 PA 185, does not require school districts to provide the sex education instruction previously permitted by Sec. 1507(1) of the School Code of 1976. Turning to your second question, Const 1963, art 9, Sec. 29, provides, in pertinent part: 'A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs.' Section 1169 of the School Code of 1976, MCL 380.1169; MSA 15.41169, was already law when Const 1963, art 9, Sec. 29, was approved by the voters in November, 1978, as part of the Headlee Amendment. Indeed, the obligation of school districts to provide instruction concerning dangerous communicable diseases has prevailed since at least 1895. See 1895 PA 146, Sec. 1. Thus, the requirement that school districts provide instruction concerning dangerous communicable diseases is certainly not a new requirement under Const 1963, art 9, Sec. 29. Moreover, prior to the amendment of Sec. 1169 of the School Code of 1976, by 1987 PA 185, AIDS certainly fell within the category of dangerous communicable diseases about which instruction had to be provided. The express reference to AIDS in Sec. 1169 of the School Code of 1976, as last amended by 1987 PA 185, does not constitute a new activity or an increase in an existing activity or service. It should be noted that the statutory requirement is that school districts offer instruction concerning AIDS, not that students are required to take such instruction. Indeed, under Sec. 1170(3) of the School Code of 1976, MCL 380.1170; MSA 15.41170, students must be excused from instruction concerning characteristics or symptoms of disease if requested by a parent or guardian for religious reasons. It is my opinion, in answer to your second question, that under Const 1963, art 9, Sec. 29, the state may, but is not required to, pay 100 percent of the cost of the AIDS instruction required by Sec. 1169 of the School Code of 1976. Frank J. Kelley Attorney General
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