STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

A public school academy is not a "school district" for purposes of section 1147 of the Revised School Code, MCL 380.1147. Rather, section 1147 applies to general powers school districts and first class school districts, which, in accordance with the clear language of that section, must enroll students who reside in the district.

A public school district is obligated under section 1147 of the Revised School Code to enroll a student who elects to leave a public school academy and who resides in the district regardless of when in the school year the student chooses to enroll.

If, after the pupil membership count day, a general powers school district enrolls former public school academy students, the district is entitled to receive a portion of the per pupil funds attributable to those students if the enrollment satisfies the statutory requirements described in section 25b of the State School Aid Act of 1979, MCL 388.1625b.

A public school district must enroll a child who is qualified by age and residence and the district may not treat such a student who has exercised an educational option, such as attending a public school academy, as if that student were a nonresident of the district.

Opinion No. 7154

March 31, 2004

Honorable Wayne Kuipers
State Senator
The Capitol
Lansing, MI 48909

Honorable Barbara Vander Veen
State Representative
The Capitol
Lansing, MI 48909

Honorable Bill Huizenga
State Representative
The Capitol
Lansing, MI 48909

You have asked several questions regarding the situation that arises when students leave public school academies and enroll in public school districts after the pupil membership count day.

You first ask whether a public school academy is a "school district" for purposes of the State School Aid Act of 1979 and the Revised School Code, particularly section 1147 of the Revised School Code, MCL 380.1147. The Revised School Code (Code), MCL 380.1 et seq, provides that a public school academy is a public school for purposes of Const 1963, art 8, � 2, and a public school district for purposes of Const 1963, art 9, � 11. MCL 380.501(1). Const 1963, art 8, � 2, provides that the Legislature shall maintain and support a system of free public elementary and secondary schools. Const 1963, art 9, � 11, establishes a state school aid fund, which provides funds to support K-12 education in Michigan.

Public school academies are included in the definition sections of both the Code and the State School Aid Act of 1979 (State School Aid Act). The definition of "public school" in the Code includes public school academy corporations, MCL 380.5(5), and the definition of "district" in the State School Aid Act includes public school academies, with certain enumerated statutory exceptions. MCL 388.1603(6). The Michigan Supreme Court has confirmed that public school academies are public schools, subject to the general supervision of the State Board of Education. Council of Organizations and Others for Education About Parochiaid v Governor, 455 Mich 557, 583-584; 566 NW2d 208 (1997). The Court held that public school academies meet the qualifications established by the Legislature for state funding and do not offend any constitutional provision. Accordingly, public school academies qualify as public schools under the Code and the State School Aid Act. Id., at 573-574. This does not mean, however, that a public school academy is a "school district" for all purposes of the Code, particularly for purposes of section 1147.

Section 1147 creates a statutory right for all school age children to attend public school in the school district in which the child resides:

A person, resident of a school district not maintaining a kindergarten and at least 5 years of age on the first day of enrollment of the school year, shall have a right to attend school in the district. [MCL 380.1147(1).]

Under section 1147, any child who is a resident of a school district has the right to attend school in the district and is entitled to enroll in the district. Snyder v Charlotte Public School Dist, 421 Mich 517, 533; 365 NW2d 151 (1984). ("By couching � 1147 in terms of a child�s 'right' and 'entitlement' to attend school, the Legislature wished to prevent public school districts from arbitrarily refusing admission to children who live in the district and meet the age requirements." Id., at 528, n 3.)

The primary rule of statutory construction is to effectuate the intent of the Legislature. Sun Valley Foods v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). If the language of the statute is unambiguous, the Legislature is presumed to have intended the clear meaning it expressed. Pohutski v Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). Additionally, when interpreting statutory language, all words and phrases are to be construed and understood in accordance with the common usage of the language. Massey v Mandell, 462 Mich 375, 380; 614 NW2d 70 (2000). Finally, every word should be given meaning and, if possible, no word should be treated as surplusage or rendered nugatory. Pittsfield Charter Twp v Washtenaw County, 468 Mich 702, 714; 664 NW2d 193 (2003).

General powers school districts, MCL 380.11a(1), and first class school districts, MCL 380.401, occupy territory within defined geographical boundaries and have residents who live within those boundaries. See MCL 380.626. Public school academies, in contrast, have no defined geographical territory assigned to them.¹ Accordingly, section 1147, which gives a school-aged person who is a "resident of a school district" the right to attend school in that district, has no application to public school academies.

It is my opinion, therefore, in answer to your first question, that a public school academy is not a "school district" for purposes of section 1147 of the Revised School Code. Rather, section 1147 applies to general powers school districts and first class school districts, which, in accordance with the clear language of that section, must enroll students who reside in the district.

You next ask whether a public school district is obligated to enroll a student who elects to leave a public school academy after the fall count date, even though the school district does not receive the per pupil foundation allowance for that student, which remains with the public school academy.

State school aid payments are made on the basis of the number of pupils in membership in the district or public school academy as defined in section 6(4) of the State School Aid Act. MCL 388.1606(4). The number of pupils in membership in the district is determined by a weighted formula that considers the number of full-time equated pupils enrolled and in regular daily attendance in the district or public school academy on two count days. The count days are defined in the Act as the "pupil membership count day," which is the fourth Wednesday in September, except for a district maintaining school for an entire school year, MCL 388.1606(7), and the "supplemental count day," which is the second Wednesday in February. MCL 388.1606a. Districts and public school academies receive funds based on a per membership pupil foundation allowance calculated as provided in section 20 of the State School Aid Act, MCL 388.1620.

Section 1147 provides that any school-aged child who is a resident of a school district has the right to attend school in the district. MCL 380.1147. Nothing in the Code provides that by choosing to enroll in and attend a public school academy, a student relinquishes the right to leave the public school academy and enroll in and attend school in his or her district of residence. Rather, under section 1147, the statutory right to attend school in the student's district of residence exists regardless of whether the student was previously enrolled in a public school academy and regardless of when in the school year the student chooses to enroll. To read section 1147 as containing those limitations would impermissibly impose restrictions not mandated by the Code. Feaster v Portage Public Schools, 451 Mich 351, 357; 547 NW2d 328 (1996).

It is my opinion, therefore, in answer to your second question, that a public school district is obligated under section 1147 of the Revised School Code to enroll a student who elects to leave a public school academy and who resides in the district regardless of when in the school year the student chooses to enroll.

Your next question assumes that the public school district must enroll the former public school academy student after the fall count date to be in compliance with section 1147 and asks whether the district is entitled to receive the per membership pupil foundation allowance, or a prorated share of the foundation allowance, based on the length of time the student will be enrolled in the public school district.

In section 25b of the State School Aid Act, MCL 388.1625b, the Legislature has provided a mechanism by which a general powers school district,² called the educating district, may recover a portion of the foundation allowance when pupils who reside in the district were counted in membership on the pupil membership count day by a public school academy or other district and enroll in the educating district after that date.

Section 25b permits an educating district to recover funds only if the following conditions apply: (1) the pupil transfers from one of three other districts (which include public school academies³), specified by the educating district and enrolls after the pupil membership count day; (2) the pupil was counted in membership in the district or public school academy from which the pupil transferred; (3) the pupil was a resident of the educating district on the pupil membership count day or met other eligibility criteria to be counted in membership in the educating district on the count day; and (4) the total number of pupils described above who transferred from one of the three other districts or public school academies and enrolled in the educating district is at least equal to the greater of 25 or 1% of the educating district's membership. MCL 388.1625b(1).

If these conditions are met, the educating district reports this to the Department of Education and the district or public school academy that counted the pupil in membership. The public school academy or district then must pay the educating district an amount equal to the per pupil foundation allowance or payment calculated under section 20 of the State School Aid Act, prorated according to the number of days that the pupil attends school in the educating district as compared with the number of days that the pupil was enrolled in the district or public school academy that counted the pupil in membership. If the district or public school academy that counted the pupil in membership does not make the payment within 30 days of receiving the report, the Department of Education must calculate the amount owed and deduct that amount from the district or public school academy�s state school aid payments for the balance of the fiscal year and pay this amount to the educating district. MCL 388.1625b(2).

It is my opinion, therefore, in answer to your third question, that if, after the pupil membership count day, a general powers school district enrolls former public school academy students, the district is entitled to receive a portion of the per pupil funds attributable to those students if the enrollment satisfies the statutory requirements described in section 25b of the State School Aid Act, MCL 388.1625b.

Your final question also assumes that the public school district of residence must enroll the former public school academy student after the fall count day and asks whether the district may treat the former public school academy student as it would any other student seeking enrollment from another school district; that is, you ask whether the public school district of residence may require the family or student to follow the district's procedures, such as "schools of choice" procedures, for enrolling a student from another school district during the school year.

To answer this question, it is helpful to review the background and history of Michigan's statutes that have created increased educational options for students. As described above, section 1147 of the Code continues Michigan's long-standing policy that children have the right to attend school in the school district in which they reside. If a child wants to attend school in a district other than his or her 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. MCL 380.1401. 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 State School Aid Act provides that the nonresident, educating school district must have the approval of the student's district of residence. MCL 388.1606(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 district. For example, public school academies were created as an alternative to traditional public schools. MCL 380.501 et seq. A student may choose to attend a public school academy without paying tuition and a public school academy may count a student in membership and receive state school aid for the student without the approval of the student's district of residence. MCL 388.1606(6)(c).

In 1996, the Legislature created another option commonly referred to as "schools of choice." Established under section 105 of the State School Aid Act, MCL 388.1705, "schools of choice" is a procedure by which school districts may choose to open their enrollment to nonresident students and receive state aid funds for those students without the approval of the student's district of residence. The "schools of choice" option 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 1999 PA 119, the Legislature added section 105c to the State 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. MCL 388.1705c. 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 school district and receive state school aid funds for those students, without the approval of the student's district of residence.

By enacting the statutes described above, the Legislature has created options that allow students to attend schools other than the schools in their district of residence, including public school academies, without paying tuition or obtaining approval from their resident district. The Legislature has never provided that students who choose to exercise these options relinquish the statutory right established in section 1147 to attend school in their district of residence. Rather, the clear language in section 1147 provides students the right and entitlement to attend schools in their district of residence and creates a mandatory duty on school districts to enroll students who are qualified by age and residence upon enrollment by a parent or legal guardian. Snyder, supra, 421 Mich at 528. See also, OAG, 1987-1988, No 6467, p 196 (September 16, 1987).

It is my opinion, therefore, in answer to your fourth question, that a public school district must enroll a child who is qualified by age and residence and the district may not treat such a student who has exercised an educational option, such as attending a public school academy, as if that student were a nonresident of the district.

MIKE COX
Attorney General

¹While an academy may hold real property for educational purposes, MCL 380.504a, a public school academy may not levy ad valorem property taxes or any other tax for any purpose. MCL 380.503(8).

²Section 25b expressly excludes first class school districts. MCL 388.1625b(1).

³See MCL 388.1603(6).