STATE OF MICHIGAN

A public school academy authorized by a federal tribally controlled community college is subject to the geographical limitations contained in section 502(2)(c) of the Revised School Code and must therefore be located within the boundaries of the tribal community college district in Michigan.

Opinion No. 7090

September 18, 2001

 You have asked whether a public school academy authorized by a federal tribally controlled community college is, under the Revised School Code, subject to any geographical limitations.

The Revised School Code (Code), 1976 PA 451, MCL 380.1 et seq, provides a system of public instruction. Generally speaking, school districts are charged with the education of their pupils and may provide, inter alia, preschool, adult education and recreation programs, as authorized by the Legislature. Section 11a.

Public school academies, often called "charter schools," are governed by Part 6A of the Code, MCL 380.501 et seq. A public school academy is a public school organized as a nonprofit corporation that is administered by a board of directors. Sections 501(1) and 502(1). The person or entity wishing to form a public school academy must apply to and contract with an "authorizing body" before a public school academy may be established. Section 502(3). Section 504(3), which prohibits a public school academy from enrolling pupils who are not residents of Michigan and requires that the academy be open to all pupils who reside in the geographic boundaries of the authorizing body, provides in pertinent part as follows:

(3) . . . Enrollment in the public school academy may be open to all individuals who reside in this state who meet the admission policy and shall be open to all pupils who reside within the geographic boundaries, if any, of the authorizing body as described in section 502(2)(a) to (c) who meet the admission policy, except that admission to a public school academy authorized by the board of a community college to operate, or operated by the board of a community college, on the grounds of a federal military installation, as described in section 502(2)(c), shall be open to all pupils who reside in the county in which the federal military installation is located.

An authorizing body of a public school academy may be the board of a school district that operates grades K-12, an intermediate school board, the board of a community college, or the governing board of a state public university. Section 502(2). The term "community college" is defined in section 501(2)(c) to include federal tribally controlled community colleges.

(c) "Community college" means a community college organized under the community college act of 1966, Act No. 331 of the Public Acts of 1966, being sections 389.1 to 389.195 of the Michigan Compiled Laws, or a federal tribally controlled community college that is recognized under the tribally controlled community college assistance act of 1978, Public Law 95-471, 92 Stat. 1325, [25 USC 1801 et seq], and is determined by the department to meet the requirements for accreditation by a recognized regional accrediting body. [Emphasis added.]

As originally enacted in 1993, section 502(2)(c) of the Code prohibited a community college board from issuing a contract for a public school academy to operate "outside the boundaries of the community college district." 1994 PA 416 amended section 502(2)(c) to permit the award of a contract for one public school academy to operate on the grounds of an active or closed federal military installation located outside the boundaries of the community college district if the community college district had previously offered courses on such grounds for at least ten years. 1995 PA 289 further amended section 502(2)(c) to remove the limitation upon the total number of contracts that a community college board could issue for public school academies to be operated. But each of these amendments retained the limitation that public school academies be operated within the boundaries of the community college district, except for a public school academy operated on a federal military installation.

By 2000 PA 231, which added section 1475 to the Code, the Legislature declared that a federal tribally controlled community college "may provide college level courses or participate in other activities" under the Code only if all of the following are in effect:

1. The federal tribally controlled community college board members take the constitutional oath of office as public officers of this state.

2. The members of such board certify to the Michigan Department of Education that they will act as a public educational body or officer of the state subject to the Constitution and laws of the state, and to the exclusive control of the state, and

3. The members of the board shall be subject to removal or suspension by the superintendent of public instruction for violating the provisions of the Code.

This addition to the Code is significant in light of the Michigan Supreme Court's decision in Council of Organizations v Governor, 455 Mich 557; 566 NW2d 208, 78 ALR5^th 767 (1997). In upholding the constitutionality of Part 6A of the Code, the court found that "public school academy board members are public officials and are subject to all applicable law pertaining to public officials." 455 Mich at 585.

To determine the Legislature's intent in enacting sections 501 and 502 of the Code, it is necessary to focus upon the language of these provisions. If the words used are clear and unambiguous, the statute should be given effect as it is written. Turner v Auto Club Ins Ass'n, 448 Mich 22, 27; 528 NW2d 681 (1995). By defining the term "community college" to include "a federal tribally controlled community college," the Legislature clearly intended to empower a federal tribally controlled community college to authorize a public school academy, provided, however, that the board of such college complies with the requirements imposed by section 1475 of the Code, supra.

Regarding any geographical limitation upon a public school academy authorized by a community college board, the language in section 502(2)(c) is equally plain. It provides that a public school academy authorized by a community college board "shall not operate outside the boundaries of the community college district." Id. Regarding a public school academy authorized and established by a board of a community college organized under the Community College Act of 1966, 1966 PA 331, MCL 389.1 et seq, the boundaries of the authorizing district are readily ascertainable in accordance with provisions of that law. The Community College Act of 1966 authorizes the formation of community college districts generally to consist of one or more contiguous counties (section 11), a single school district (section 31(2)), two or more contiguous school districts (section 31), an intermediate school district or two or more adjoining intermediate school districts (section 51).

A federal tribally controlled community college is one formally sanctioned or chartered by the governing body of an Indian tribe. See 25 USC 1801(4). The formal charter of a federal tribally controlled community college establishes the geographic boundaries of the college district.

It is my opinion, therefore, that a public school academy authorized by a federal tribally controlled community college is subject to the geographical limitations contained in section 502(2)(c) of the Revised School Code and must therefore be located within the geographical boundaries of the tribal community college district in Michigan.

JENNIFER M. GRANHOLM
Attorney General