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



CONSTITUTIONAL LAW:

EDUCATION:

SCHOOLS AND SCHOOL DISTRICTS:

Use of public funds for private driver education courses



Section 811(3) of the Michigan Vehicle Code, which gives students participating in an approved driver education course a certificate for use in payment of fees charged for courses provided by licensed driver training schools, does not violate Const 1963, art 8,  2, which prohibits the use of public monies to support nonpublic schools.


Opinion No. 6984

June 1, 1998


Honorable Jim Berryman
State Senator
The Capitol
Lansing, MI 48909


You have asked whether section 811(3) of the Michigan Vehicle Code, which gives students participating in an approved driver education course, a certificate for use in payment of fees charged for courses provided by licensed driver training schools, violates Const 1963, art 8,  2, prohibiting use of public monies to support nonpublic schools.

Prior to April 1, 1998, driver education courses were provided by local public school districts or, in certain circumstances, by intermediate districts. 1996 PA 387 amended the Michigan Vehicle Code, 1949 PA 300, MCL 257.1 et seq; MSA 9.1801 et seq (Code), to modify the method of providing student driver education courses. Effective April 1, 1998, approved driver education courses may be conducted by licensed private driver training schools, as well as by public schools. Section 811(4) of the Michigan Vehicle Code, as amended by 1996 PA 387, provides in part:

Beginning April 1, 1998, the approved driver education courses may be conducted by the local public school district or a consortium of school districts, by a licensed driver training school either itself or through a contract with a local school district, or by the intermediate district at the request of the local district. If a local school district contracts with a licensed driver training school to conduct an approved driver education course, the contract shall require that the driver education course be conducted in accordance with the requirements set forth in department of education rules under subsection (6) that are applicable to an approved driver education course conducted by a local school district.

Under section 811(4) of the Code, local public school districts are reimbursed from the driver education fund for each student completing an approved driver education course. The driver education fund, established by section 811(2) of the Code, is funded through fees collected by the Secretary of State from issuance of operator's and chauffeur's licenses. These monies are then appropriated by the Legislature to the Department of Education which, in turn, administers the driver education fund and distributes the monies to local school districts for use in driver education programs.

Prior to April 1, 1998, monies in the driver education fund could only be used for driver education programs operated by local public school districts or intermediate school districts. Effective April 1, 1998, however, monies from the driver education fund can be used to pay for driver training courses provided by a school district or by a private driver training school. Section 811(3) of the Code now provides:

Beginning April 1, 1998, a local school district that offers an approved driver education course shall provide an amount equal to the pro rata amount from the driver education fund for each student residing in the district that completes an approved driver education course within that district. The local school district shall provide each student participating in an approved driver education course with a certificate in a form provided by the local school district and approved by the department of education that the student shall use toward the payment of any fee charged for the approved driver education course under the following conditions:

(a) If the student participates in an approved driver education course at a local school district of his or her choice other than his or her local school district.

(b) If the student participates in a driver education course at a licensed driver training school, but only if the following conditions exist:

(i) The student's local school district does not offer an approved driver education course either itself or through a consortium of local school districts of which the student's local school district is a member.

(ii) The student's local school district does not offer an approved driver education course with openings available either itself or through a consortium of local school districts of which the student's local school district is a member at the time the student attains 15 years, 6 months of age. From the amount distributed, the local school district shall reimburse each licensed driver training school or other local school district the determined pro rata amount from the driver education fund for each student from that district completing an approved driver education course with the licensed driver training school or other local school district during the fiscal year.

Your question asks whether this new provision in the Code, which gives students participating in an approved driver education course a certificate that may be applied to fees charged by a private driver training school, violates Const 1963, art 8,  2.

Const 1963, art 8,  2, prohibits the use of public monies to support nonpublic schools and provides as follows:

No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school . . . .

(emphasis added).

In evaluating whether a statute violates the Michigan constitution, every reasonable presumption must be indulged in favor of the statute's constitutionality. Rohan v Detroit Racing Ass'n, 314 Mich 326, 341-342; 22 NW2d 433 (1946) (citations omitted); McDonald Pontiac-Cadillac-GMC, Inc v Saginaw County Prosecuting Attorney, 150 Mich App 52, 58; 388 NW2d 301 (1986) (citations omitted), lv den, 426 Mich 867 (1986), cert den 484 US 823 (1987).

In Traverse City School Dist v Attorney General, 384 Mich 390; 406-407; 185 NW2d 9 (1971), the court interpreted Const 1963, art 8,  2, as follows:

[R]ead in the light of the circumstances leading up to and surrounding its adoption, and the common understanding of the words used, prohibits the purchase, with public funds, of educational services from a nonpublic school.

(emphasis added) (footnote omitted).

Thus, Const 1963, art 8,  2, prohibits the state from appropriating public funds to private educational facilities for the purpose of funding primary or secondary educational services. See, OAG, 1995-1996, No 6872, p 99, 100 (September 19, 1995); OAG, 1977-1978, No 5333, p 532 (July 12, 1978). The Michigan Supreme Court, however, has concluded that driver training is not an educational matter; rather it is a health and safety measure.

Drivers training, from a functional point of view, is also a general health and safety measure. The state interest in providing driving instructions to high school age youth is to enable neophyte drivers to safely handle an automobile in order to protect themselves and other citizens from injuries caused by the actions of improperly trained drivers.

The legislature treats drivers education as a general safety measure rather than an educational matter. The act which created a drivers training program was enacted as an amendment to the Michigan Vehicle Code. The specific act amended was entitled "An act * * * to provide for the examination, licensing and control of operators and chauffeurs."

Traverse City School Dist, 384 Mich at 419 (emphasis added) (footnote omitted).

This office has previously concluded that it is mandatory for local school districts to offer driver education courses. OAG, 1979-1980, No 5659, p 648 (February 28, 1980); OAG, 1977-1978, No 5291, p 420 (April 12, 1978); OAG, 1961-1962, No 3656, p 407 (May 25, 1962). See also, Sharp v Huron Valley Bd of Education, 112 Mich App 18; 314 NW2d 785 (1981). These conclusions are based on (i) the language in section 811 of the Code which, until passage of 1996 PA 387, mandated that public school districts offer driver education courses, and (ii) Const 1963, art 8,  2, which directs the Legislature to maintain a system of free public elementary and secondary schools. Bond v Ann Arbor School Dist, 383 Mich 693; 178 NW2d 484 (1970). OAG, 1979-1980, No 5659, supra, recognized, however, that the Legislature is free to amend the Code to delete this requirement. Through 1996 PA 387, the Legislature did so.

Effective April 1, 1998, public schools are no longer required by the Code to provide driver education courses as part of their curriculum. Section 811(4). Rather, the Legislature has now provided that driver education courses may be provided by a public school district or by a licensed, private driver training school, either directly or through a contract with a local school district. Section 811(4). Although Const 1963, art 8,  2, prohibits the use of public funds to support nonpublic educational services, a driver education course constitutes a health and safety measure, and not an educational service. Accordingly, nothing in Const 1963, art 8,  2, prohibits the use of public funds to support driver education training at a licensed private driver training school.

It is my opinion, therefore, that section 811(3) of the Michigan Vehicle Code, which gives students participating in an approved driver education course, a certificate for use in payment of fees charged for courses provided by licensed driver training schools, does not violate Const 1963, art 8,  2, which prohibits the use of public monies to support nonpublic schools.



FRANK J. KELLEY
Attorney General