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


EDUCATION:

CONSTITUTIONAL LAW:

SCHOOLS AND SCHOOL DISTRICTS:

Section 105c(17) of the State School Aid Act of 1979 governing payment of state school aid for students with disabilities in "schools of choice" programs


Section 105c(17) of the State School Aid Act of 1979, as added by 1999 PA 119, does not violate the equal protection clause of either the United States Constitution or the Michigan Constitution.

Section 105c(17) of the State School Aid Act of 1979, as added by 1999 PA 119, does not violate the Individuals With Disabilities Education Act.

Section 105c(17) of the State School Aid Act of 1979, as added by 1999 PA 119, does not violate the Rehabilitation Act of 1973.


Opinion No. 7046

February 24, 2000


Honorable John P. Hansen
State Representative
The Capitol
Lansing, MI


You have asked whether section 105c(17) of the State School Aid Act of 1979 violates the constitutional guarantee of equal protection of laws, the Individuals With Disabilities Education Act, or the Rehabilitation Act of 1973.

To answer this question, it is necessary to review Michigan's statutory evolution toward schools of choice and the funding mechanism for a student with disabilities whose parents exercise their right to choose a school outside the student's district of residence. The State School Aid Act of 1979 (School Aid Act), 1979 PA 94, MCL 388.1601 et seq; MSA 15.1919(901) et seq, provides appropriations for the support of public schools and intermediate school districts.1 Section 105c(17) of the School Aid Act establishes the procedure governing how a school district may claim state school aid funds for a nonresident student who lives in a contiguous school district located in another intermediate school district (ISD) and who is eligible for special education programs and services under state or federal law.

The Revised School Code (Code), 1976 PA 451, MCL 380.1 et seq; MSA 15.4001 et seq, is an act to provide a system of public instruction and elementary and secondary schools. The Code continues Michigan's long-standing policy that children have the right to attend school in the school district in which they reside. Revised School Code, section 1147. If a child wants to attend school in a district other than the district of residence, the Code provides that each school district has the discretionary authority to admit nonresident students; however, if the school district does so, it must charge tuition for that nonresident student. Revised School Code, section 1401. See Jones v Grand Ledge Public Schools, 349 Mich 1, 10; 84 NW2d 327 (1957), interpreting section 340.582, the predecessor provision in the School Code of 1955; OAG, 1985-1986, No 6316, pp 151, 152 (September 25, 1985). Additionally, in order to count and receive state school aid funds for the nonresident student, the School Aid Act provides that the nonresident, educating school district must have the approval of the student's district of residence. Section 1606(4)(b).

In recent years, the Legislature has enacted statutory exceptions to these long-standing policies and has created educational options that allow students to attend schools other than their district of residence public schools without paying tuition or obtaining approvals from their resident districts. For example, public school academies were created as an alternative to traditional public schools. Revised School Code, section 501 et seq. A student may choose to attend a public school academy without paying tuition and a public school academy can count a student in membership and receive state school aid for the student without the approval of the student's district of residence. School Aid Act, section 1606(6)(c).

In 1996, the Legislature created another option commonly referred to as "schools of choice." Established under section 105 of the School Aid Act, the "schools of choice" concept is a procedure by which school districts may choose to open their enrollment to nonresident students residing in the same intermediate school district and receive state aid funds for those students without the approval of the student's district of residence. The "schools of choice" concept under section 105 is limited to situations in which both the enrolling "choice" district and the resident district are located in the same intermediate school district.

In 1999, through PA 119, the Legislature added section 105c to the School Aid Act to extend "schools of choice" to situations in which the enrolling district and the resident district are contiguous but are located in different intermediate school districts. Section 105c establishes a procedure by which school districts may choose to open their enrollment to nonresident students who live in a contiguous school district located in another intermediate district and receive state aid funds for those students, without the approval of the student's district of residence.

Under section 105c of the School Aid Act, a school district determines whether it will open its enrollment and accept applications from nonresident pupils for the next school year. Section 105c(2). The district must publish the grade levels, schools and special programs, if any, for which applications will be accepted. Section 105c(2)(a). If the number of qualified applicants eligible for acceptance does not exceed the available positions, all applicants are accepted for enrollment. If the number of qualified applicants exceeds the available positions, the district must use a random draw system to determine enrollment. Section 105c(12). A school district may not grant or refuse enrollment to a nonresident applicant based on religion, race, color, national origin, sex, height, weight, marital status, athletic ability or, generally, in violation of any state or federal law prohibiting discrimination. Section 105c(8). Nonresidents shall not be granted or refused enrollment based on intellectual ability or based on a mental or physical disability. Section 105c(6).

Section 105c of the School Aid Act includes a specific provision regarding the procedure a school district must follow to enroll a nonresident pupil who is eligible for special education programs and services or who is a child with disabilities as defined under federal law. Section 105c(17) requires that enrolling school districts execute a written agreement with the pupil's district of residence:

In order for a district or intermediate district to enroll pursuant to this section a nonresident pupil who resides in a contiguous district located in another intermediate district and who is eligible for special education programs and services according to statute or rule, or who is a child with disabilities, as defined under the individuals with disabilities education act, title VI of Public Law 91-230, the enrolling district shall have a written agreement with the resident district of the pupil for the purpose of providing the pupil with a free appropriate public education. The written agreement shall include, but is not limited to, an agreement on the responsibility for the payment of the added costs of special education programs and services for the pupil.

(Emphasis added.)

Children with disabilities are eligible for special education programs and services under both state and federal law. Under the Revised School Code, local school districts must provide special education programs and services to children with disabilities in accordance with the intermediate district special education plan. Section 1751. The programs and services provided in the plan must be "designed to develop the maximum potential" of each child with disabilities who is a resident of a constituent district in the intermediate district. Revised School Code, section 1711(1)(a) and (f); 1997 AACS, R 340.1701-340.1873.

Federal law likewise provides rules governing services for children with disabilities. The Individuals With Disabilities Education Act (IDEA), 20 USC 1400 et seq, provides federal money to state and local agencies for the education of children with disabilities. IDEA guarantees children with disabilities access to a "free appropriate public education," which includes special education and related services designed to meet each child's unique needs. In order to receive federal money, a state must submit a plan to the U.S. Department of Education, and the plan must demonstrate that there is a policy in effect to ensure that a free appropriate public education will be provided to all children with disabilities residing in the state. 20 USC 1412(a)(1)(A) and (B).

To implement a free appropriate public education, the IDEA requires that each child with disabilities have an individualized education program. 20 USC 1412(a)(4). An individualized education program is a written statement developed for each child with disabilities that includes, among other things, a statement of the child's present level of performance and measurable annual goals related to meeting the child's needs so that the child may be involved in, and progress in, the general curriculum. The individualized education program also includes a statement of the special education and related services to be provided to enable the child to advance appropriately toward attaining his or her annual goals. 20 USC 1401(11) and 1414(d).

(1) Equal Protection.

Your first question asks whether section 105c(17) of the State School Aid Act of 1979, as added by 1999 PA 119, violates the equal protection clause of either the United States Constitution or the Michigan Constitution. Your question implicitly asks whether section 105c(17) is facially unconstitutional by denying children with disabilities equal protection of the laws because it requires the enrolling district to have a "written agreement" with the resident district for a child eligible for special education programs and services but not for a child in a general education program.

Both the United States and the Michigan Constitutions guarantee that no person will be denied the equal protection of the law. US Const, Am XIV,  1, Const 1963, art 1,  2. These constitutional provisions offer similar protection. Vargo v Sauer, 457 Mich 49, 60; 576 NW2d 656 (1998). Essentially, the guarantee of equal protection of the law requires government to treat persons in similar circumstances alike. City of Cleburne, Texas v Cleburne Living Center, Inc., 473 US 432, 439; 105 S Ct 3249, 3254; 87 L Ed 2d 313 (1985); People v Pitts, 222 Mich App 260, 272; 564 NW2d 93 (1997). Neither constitution, however, requires "absolute equality." Doe v Dep't of Social Services, 439 Mich 650, 661; 487 NW2d 166 (1992), quoting San Antonio Independent School Dist v Rodriguez, 411 US 1, 24; 93 S Ct 1278; 36 L Ed 2d 16 (1973). The states have substantial latitude to establish classifications that address perceived
problems and accommodate competing concerns. Plyler v Doe, 457 US 202, 216; 102 S Ct 2382; 72 L Ed 2d 786 (1982).

In general, a statutory classification is presumed constitutional and will be upheld if it bears a rational relationship to a legitimate governmental purpose. Doe v Dep't of Social Services, supra, 439 Mich at 662. If, however, the classification infringes on a "fundamental right" or is based upon suspect factors such as race, national origin or ethnicity, a higher standard of review, namely "strict scrutiny," is applied. People v Perlos, 436 Mich 305, 331; 462 NW2d 310 (1990); Manistee Bank v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975). In addition, there are cases involving quasi-suspect classifications, such as gender or illegitimacy, in which the courts have used an intermediate level of heightened scrutiny. See, for example, Craig v Boren, 429 US 190, 197-199; 97 S Ct 451; 50 L Ed 2d 397 (1976).

A facial challenge to the constitutionality of a statute seeks a determination that the statute as enacted is invalid. To overcome the presumption of validity, the party "'must establish that no set of circumstances exists under which the [a]ct would be valid. The fact that the . . . [a]ct might operate unconstitutionally under some conceivable set of circumstances is insufficient.'" Council of Organizations and Others for Education About Parochiaid v Governor, 455 Mich 557, 568; 566 NW2d 208 (1997), citing United States v Salerno, 481 US 739, 745; 107 S Ct 2095, 95 L Ed 2d 697 (1987).

The U.S. Supreme Court has held that the right to an education is not a "fundamental right" under the United States Constitution. San Antonio Independent School Dist v Rodriguez, supra, 411 US at 39. The Michigan Court of Appeals has reached the same conclusion. East Jackson Public Schools v Michigan, 133 Mich App 132, 137; 348 NW2d 303 (1984). The U.S. Supreme Court has held that mental retardation is not a quasi-suspect classification calling for intermediate scrutiny and has applied the rational basis standard to this class of individuals. City of Cleburne, supra, 473 US at 442. In Caitlin v Sobol, 93 F3d 1112, 1119-1120 (2nd Cir, 1996), the Second Circuit, relying on City of Cleburne, supra, held that the rational basis test was the appropriate standard to review a statute classifying individuals with disabilities under IDEA. Therefore, since the right to an education is not a fundamental right and since individuals with disabilities do not comprise a suspect or quasi-suspect classification, section 105c(17) of the School Aid Act does not violate the equal protection clause if it is rationally related to a legitimate governmental purpose.

In order to determine whether section 105c of the School Aid Act serves a legitimate governmental purpose, it is necessary to review the statutory scheme. Section 105c does not prohibit any pupil from applying for enrollment under a district's "schools of choice" program. Moreover, a school district may not grant or refuse enrollment based on a pupil's mental or physical disability. Where the educating district and the district of residence are located in different intermediate school districts, however, the Legislature has, through section 105c(17) of the School Aid Act, established a specific procedure which a school district must follow to enroll a nonresident pupil who is eligible for special education programs or who is a child with disabilities as defined under federal law (an "eligible pupil"). In order to enroll a nonresident eligible pupil and to receive state school aid funds, the enrolling district must have a written agreement with the eligible pupil's district of residence regarding the education of, and payment of, the added costs of special education programs and services to be provided to the pupil.

Intermediate school districts (ISDs) are an essential component of Michigan's system for the delivery of special education programs and services. They are involved in coordinating both the programmatic and financial aspects of special education programs and services for eligible students residing in constituent school districts. Under section 1711(1)(a) of the Revised School Code, every intermediate school board must develop its own special education plan with its constituent districts and coordinate the programs and services operated or contracted for by the constituent districts. These plans are not uniform among ISDs. Michigan has 57 ISDs and more than 500 local school districts. The vast majority of those local school districts provide direct services to special education pupils. The remaining districts send pupils to larger districts or contract for services through the ISD. Thus, while each child with disabilities must receive individualized programs and services, the special education programs may be operated by the ISD itself, or by a constituent district.

ISDs and constituent school districts receive funds to provide special education programs and services from various state and federal sources. Under the Revised School Code, intermediate school boards may also levy ad valorem property taxes for special education purposes. Revised School Code, section 1724a. Whether an ISD levies a millage for special education purposes, as well as the amount of the millage levied, varies among ISDs. If ISD electors approve a special education millage, funds raised are distributed among constituent districts as provided in the ISD plan. The manner of distribution varies among ISDs. For example, millage revenues may be distributed to constituent districts on a per pupil basis or may be allocated for a specific program operated by the ISD or a constituent district. While administrative rules specify a method for reimbursement of costs for special education programs and services from the ISD special education millage, an ISD that wishes to distribute those funds in another manner may request approval for an alternate method of distribution of the funds as part of the ISD Plan. See 1980 AACS, R 340.1811(7).

Constituent districts within intermediate school districts are obligated to provide necessary special education programs and services to their eligible pupils. Through section 105c(17) of the School Aid Act, the Legislature has recognized that the programs offered by an ISD and its constituent districts and the manner in which those programs are delivered varies among ISDs. This section further recognizes that the cost of educating a child with disabilities is greater than the cost of educating a student in a general education program and that the level of funding for special education programs and services is determined in part by the taxpayers in the constituent districts in each ISD. Given the potential differences in both the amount collected by and the manner in which funds are distributed within each ISD, it is reasonable for the Legislature to require that in order to enroll an eligible pupil who resides in a contiguous school district located in another intermediate district, the enrolling district must have a written agreement with the pupil's resident district that addresses the financial responsibility for the payment of the added costs of special education programs and services provided to the eligible pupil. Accordingly, the statutory classification established by the Legislature in section 105c(17) of the School Aid Act is rationally related to a legitimate governmental purpose.

It is my opinion, therefore, that section 105c(17) of the State School Aid Act of 1979, as added by 1999 PA 119, does not violate the equal protection clause of either the United States Constitution or the Michigan Constitution.

(2) Individuals with Disabilities Education Act.

Your second question asks whether section 105c(17) of the State School Aid Act of 1979, as added by 1999 PA 119, violates the Individuals With Disabilities Education Act.

Under the Act's "schools of choice" provisions, as added by 1999 PA 119, a school district may not enroll a nonresident pupil who is eligible for special education programs and services or who is a child with disabilities and who lives in a district located in another intermediate school district, unless the enrolling district has a written agreement with the child's district of residence "for the purpose of providing the pupil with a free appropriate public education." The agreement must address the responsibility for the payment of the added costs of special education programs and services for the pupil. Act, section 105c(17).

As noted above, the IDEA guarantees children with disabilities access to a free appropriate public education. 20 USC 1412(1). The IDEA requires states and local school districts to provide a free appropriate public education to all children with disabilities in the state who are eligible for special education services. The IDEA does not, however, give children with disabilities the absolute right to determine where a free appropriate public education will be provided. Hudson v Bloomfield Hills Public Schools, 910 F Supp 1291, 1304 (ED Mich, 1995), aff'd 108 F3d 112 (CA 6, 1997). The determination of which local school district will provide or fund special education services is left to the determination of each state. Letter to Reedy, 30 IDELR 268 (OSEP 1998).

This conclusion is supported by a statement of general guidance issued by the U.S. Department of Education, Office of Special Education and Rehabilitative Services, in response to an inquiry regarding the State of Nebraska's interdistrict Parent Choice program:

It is the Department's position that, under interdistrict choice programs, States must ensure that the rights guaranteed to children with handicaps and their parents by EHA-B2 and Section 5043 are not diminished by virtue of a child's participation in the program.

However, Federal law does not prohibit States from requiring that responsibility for providing a free appropriate public education (FAPE) to children with handicaps be transferred from the school district of the child's residence (resident district) to the non-resident school district of parental choice (choice district), as Nebraska's program currently does. The effect of this allocation of responsibility may not operate to deny any of the substantive rights and procedural safeguards guaranteed by EHA-B and Section 504 to children with handicaps and their parents.

Letter to Lutjeharms, 16 EHLR 554 (OSERS 1989).

In section 105c(17) of the School Aid Act, the Legislature has not designated a responsible district but, rather, has provided a mechanism for the two involved districts to determine which district will provide a free appropriate public education and which district will be responsible for the payment of the added costs of the child's programs and services. To ensure that a child with disabilities as defined in the IDEA receives a free appropriate public education, the written agreement between the enrolling district and the district of residence is a legislatively mandated prerequisite to the enrollment of a child under section 105c(17). There is nothing in section 105c(17) of the School Aid Act which denies to a child with disabilities any of the substantive rights or procedural safeguards guaranteed under the IDEA.

It is my opinion, therefore, in answer to your second question, that section 105c(17) of the State School Aid Act of 1979, as added by 1999 PA 119, does not violate the Individuals With Disabilities Education Act.

(3) The Rehabilitation Act of 1973.

Your third question asks whether section 105c(17) of the State School Aid Act of 1979, as added by 1999 PA 119, violates the Rehabilitation Act of 1973.

Section 504 of the Rehabilitation Act of 1973, 29 USC 794, provides that no individual with a disability shall, by reason of that disability, be subjected to discrimination under any program or activity receiving federal financial assistance. Section 504 of this federal statute provides substantive rights and procedural safeguards similar to IDEA. Claims of discrimination made under section 504 are essentially the same as claims made under IDEA. Weiss v School Bd of Hillsborough County, 141 F3d 990, 998 (CA 11, 1998); Doe v Alabama State Dep't of Education, 915 F 2d 651, 666 (CA 11, 1990). There is nothing in section 105c(17) of the Act which subjects a child with disabilities to discrimination or which denies to a child with disabilities any of the substantive rights or procedural safeguards guaranteed under the Rehabilitation Act of 1973.

It is my opinion, therefore, in answer to your third question, that section 105c(17) of the State School Aid Act of 1979, as added by 1999 PA 119, does not violate the Rehabilitation Act of 1973.

JENNIFER M. GRANHOLM
Attorney General


1 Intermediate school districts, established under part 7 of the Revised School Code, infra, embrace more than one school district, provide services to constituent districts, and operate programs in the interests of public elementary and secondary education.

2 EHA-B refers to Part B of the Education of the Handicapped Act. 20 USC 1411(b). In 1990, Congress changed the name of the EHA to the IDEA. Pub L No 101-476, 104 Stat 1141-1142 (1990).

3 Section 504 refers to the Rehabilitation Act of 1973. 29 USC 794.