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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL


CONSTITUTIONAL LAW:

SCHOOLS AND SCHOOL DISTRICT:

STATE SCHOOL AID ACT OF 1979:

Public school charging higher summer school fee for students not currently enrolled in district

A public school district providing summer school classes may charge a higher class fee for students not currently enrolled in the district's schools.


Opinion No. 7034

September 29, 1999


Honorable Lynne Martinez
State Representative
The Capitol
Lansing, Michigan 48913


You have asked if a public school district providing summer school classes may charge a higher class fee for students not currently enrolled in the district's schools.

Information supplied with your request indicates that a public school district, in determining its fee to be charged for secondary students attending summer school classes, has established different fees for two classifications: (1) students currently enrolled in the district's schools; and (2) students not currently enrolled in the district's schools.

The Revised School Code (Code), 1976 PA 451, MCL 380.1 et seq; MSA 15.4001 et seq, is "[a]n Act to . . . prescribe rights, powers, duties, and privileges of schools, [and] school districts." The Code imposes no duty upon school districts to conduct summer school classes. In OAG, 1979-1980, No 5656, p 628, 629 (February 19, 1980), the Attorney General concluded that a school district may impose charges "for persons voluntarily attending summer school." OAG No 5656 did not, however, address the question of whether the fee charged by school districts for summer school classes may differ for students not enrolled in the school district for the current school year.

Implicit in your inquiry is the question of whether a student not enrolled in the school district, by paying a higher fee for attendance in the district's summer school program, is denied equal protection of the laws as guaranteed by US Const, Am XIV, 1, and Const 1963, art 1, 2. Michigan's "Equal Protection Clause (Const 1963, art 1,  2) was intended to duplicate the federal clause (US Const, Am XIV, 1) and to offer similar protection." Doe v Dep't of Social Services, 439 Mich 650, 670-671; 487 NW2d 166 (1991).

Const 1963, art 8,  2, provides that "[t]he Legislature shall maintain and support a system of free public elementary and secondary schools as defined by law." The right to an education, however, is not a fundamental right under the Michigan Constitution. See East Jackson Public Schools v Michigan, 133 Mich App 132, 137; 348 NW2d 303 (1984). Likewise, the right to an education is not a fundamental right under the United States Constitution. Thus, the equal protection analysis to be applied requires only that the classification employed by a governmental body bear some "rational relationship" to a governmental purpose. San Antonio Independent School Dist v Rodriguez, 411 US 1, 40; 93 S Ct 1278; 36 L Ed 2d 16 (1973). The distinction made between members of the classes employed must have some relevance to the purpose for which the classification is made. Walters v City of St. Louis, 347 US 231, 237; 74 S Ct 505; 98 L Ed 660 (1954). Under the "rational basis" test, a public program employing classifications rationally relating to achieving a valid governmental purpose does not offend either the federal or the state constitution's equal protection clauses. Shavers v Attorney General, 402 Mich 554, 618, 624; 267 NW2d 72 (1978).

The students comprising the first classification described in your question are currently enrolled in the school district offering summer school classes and are subject to pupil membership count as defined in section 1606 of the State School Aid Act of 1979 (Act), 1979 PA 94, MCL 388.1601 et seq; MSA 15.1919(901) et seq. For purposes of your question, it is assumed that this classification includes students for whom the school district receives state aid, regardless of whether these students are enrolled on a full-time or part-time basis. These students are counted for apportionment of state school aid payments due the school district for operating expenses pursuant to the Act. See sections 1613 and 1618. Thus, the students in the first classification affect the amount of state school aid received by the school district to support the operation of its schools. The students comprising the second classification described in your question are not currently enrolled in the district offering summer school classes and are not included in the pupil membership count for that district.

In the situation you describe, the school district's summer school program is voluntary. No student in either the first or second classification is obligated to attend the school district's summer school program. Nevertheless, since the school district must provide buildings, utilities, supplies, and personnel for its summer school program, it is rational for the school district to take reasonable steps to defray some of the costs of operating its summer school program. It is not unreasonable for the school district to impose a higher summer school class fee for students not currently enrolled in the school district, particularly since the school district receives no state school aid to support this group of students. Thus, it must be concluded that the school district, by charging higher summer school fees for students not currently enrolled in the district, has adopted a rational classification to assist the district in defraying the cost of operating its summer program. This distinction between currently enrolled and non-enrolled students meets the "rational basis" test and, therefore, does not violate the equal protection clauses of US Const Am XIV, 1, and Const 1963, art 1, 2.

It is my opinion, therefore, that a public school district providing summer school classes may charge a higher class fee for students not currently enrolled in the district's schools.

The Legislature may, of course, amend the Revised School Code to regulate fees charged by public school districts providing summer school classes.




JENNIFER M. GRANHOLM
Attorney General