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 MIKE COX, ATTORNEY GENERAL CHARTER SCHOOLS: URBAN HIGH SCHOOL ACADEMIES: REVISED SCHOOL CODE: SCHOOLS AND SCHOOL DISTRICTS: Application of the exceptions to the
single-site requirement in MCL 380.524(1) to urban high school academies
An urban high school academy duly chartered under Part 6C of the
Revised School Code, 1976 PA 451, MCL 380.1 et seq, that operates a
middle school and a high school at two different locations with different
configurations of grades at the two schools is not subject to the
125-pupil-per-grade restriction or the one-mile-radius limitation contained in
section 524(1) of the Code, MCL 380.524(1). The 125-pupil and one-mile radius
conditions only apply under circumstances where the same configuration of grades
is operated at more than one site. The academy may operate at multiple sites
with different configurations of grades under a single contract if authorized to
do so by its authorizing body. An urban high school academy duly chartered under Part 6C of the
Revised School Code, 1976 PA 451, MCL 380.1 et seq, that operates two
elementary schools (both offering kindergarten through grade 5), one middle
school, and one high school, each at separate locations, may operate under a
single authorizing contract provided that the two elementary schools offering
the same configuration of grades have a combined total enrollment not exceeding
125 pupils per grade and are both located within a one-mile radius of the
academy's central administrative office. The 125-pupil-per-grade restriction and
the one-mile-radius limitation contained in section 524(1) of the Revised School
Code, MCL 380.524(1), do not apply to either the high school or the middle
school because they operate different configurations of grades. An urban high school academy duly chartered under Part 6C of the
Revised School Code, 1976 PA 451, MCL 380.1 et seq, that operates grades
6 through 12 (including a middle school and a high school) at a single location
where its central administrative office is also located is not subject to the
125-pupil-per-grade restriction or the one-mile-radius limitation of MCL
380.524(1) because these conditions apply solely to circumstances where the same
configuration of grades is offered at multiple locations under a single
contract. Opinion No. 7219 August 27, 2008 Honorable Wayne Kuipers You have asked three questions concerning the application of
section 524(1) of the Revised School Code, MCL 380.524(1), to the siting of
urban high school academies. Information supplied with your request presents the
following factual scenario involving three different schools operating at
various locations: 1. The governing board of a state public university, as an
authorizing body under the Code, has issued three contracts to an urban high
school academy corporation organized under the Code and the Michigan
Nonprofit Corporation Act, 1982 PA 162, MCL 450.2101 to 450.3192, to operate
three separate and unique schools (referred to as School "A," School "B,"
and School "C").1 2. School "A" is authorized to operate a Kindergarten
through grade 12 configuration. Initially, School "A"'s grade configuration
will consist of a middle school with grades 6 and 7 at one location. The
middle school will ultimately include grades 6, 7, and 8 and enroll more
than 125 students per grade. School "A"'s central administrative office is
located at the middle school. School "A" is planning to operate a high
school (grades 9 through 12) at a location more than a one mile radius from
School "A"'s central administrative office. School "A" plans to enroll more
than 125 students per grade at both the middle and high school locations.
School "A" will only operate at the middle school and high school location,
and there will be no overlap of grades between these two sites. 3. School "B" is authorized to operate a Kindergarten
through grade 12 configuration at four locations. The four locations consist
of a high school location (grades 9-12), a middle school location (grades
6-8), and two separate elementary school locations (two schools operating
grades K-5). School "B"'s central administrative office is located at School
"B"'s high school location. All four locations are within a one mile radius
of School "B"'s central administrative office. School "B" only plans to
overlap grades at the two elementary school locations. In order to comply
with section 524(1) of the Code, MCL 380.524(1), School "B" will limit
enrollment at the two elementary school locations to 125 students per grade.
However, the current[ ] plan is to enroll more than 125 students per grade
at the middle school and high school locations. 4. School "C" is authorized to operate a Kindergarten
through grade 12 and will commence operations in the 2009-2010 school year.
Initially, School "C" will consist of grades 6 through 12 at one location.
The one location includes a middle school (grades 6-8) and a high school
(grades 9-12). School "C"'s central administrative office will be located at
this same location. School "C" will enroll more than 125 students per grade
and will only operate at one location. Your request identifies what may be called the single-site
requirement in the part of the Revised School Code (Code), 1976 PA 451, MCL
380.1 et seq, that applies to urban high school academies, and asks how
various exceptions to that requirement that allow an academy to operate at
multiple sites under a single authorizing contract apply to Schools A, B, and C
described above. Before examining the specific statutory provisions at issue, a
brief background discussion concerning charter schools and the development of
urban high school academies is useful. The Code provides for the organization, regulation, and
maintenance of schools, school districts, public school academies, urban high
school academies, and intermediate school districts. Public school academies,
commonly known as charter schools, have existed in Michigan for over ten years.
In 1993 PA 362, the Legislature enacted Part 6A of the Code, MCL 380.501 � MCL
380.507, to provide for public school academies. A public school academy is
defined as a "public school" and a "governmental agency." MCL 380.501. See
Council of Organizations & Others for Education about Parochiaid v Governor,
455 Mich 557, 567; 566 NW2d 208 (1997). In 2003 PA 179, the Legislature added Part 6C to the Code, MCL
380.521 � MCL 380.529, to provide for urban high school academies. 2003 PA 179
originated as Senate Bill 393, the rationale for which was to encourage the
creation of charter high schools as explained in the following legislative
analysis: In Michigan, the majority of charters are issued by public
universities. According to amendments enacted in 1996, universities combined
may not issue more than 150 charter school contracts, and no single
university may issue more than half of that number. As of June 2003, 148
charters were authorized by State universities (including Central Michigan
University, which authorized 57, and Grand Valley State University, which
authorized 30), while 12 charters were issued by local school districts, 28
by ISDs, and 12 by community colleges. Community colleges are limited to
chartering schools within their jurisdiction, which is the entire State in
the case of Bay Mills, a Federal tribally controlled community college. * * * [T]o date, most charter school contracts have been issued to
K-8 schools, largely because high schools students are more expensive to
educate. (The costs of science labs, athletic fields, and auditoriums are
among the additional expenses borne by high schools.) This trend is changing
gradually: In July 2003, about 72 of all 200 charters encompassed grades
beyond 8th, because many charter schools add one grade per year as their
students advance. Only 24 of the 200 charters, however, are stand-alone high
schools for students in grades 9-12 or 10-12. In 2002, philanthropist and businessman Robert Thompson
pledged $200 million toward construction of 15 Detroit charter high schools
focused on increasing graduation rates. Some believe that the State should
take advantage of this opportunity to establish new [public school
academies]. [Senate Legislative Analysis, SB 393, September 10, 2003.] Similar to public school academies under Part 6A, section 521(1)
of the Code defines an urban high school academy as a "public school" and a
"governmental agency." MCL 380.521(1). Urban high school academies are different
from public school academies, primarily because they must include grades 9
through 12 within five years after beginning operations. MCL 380.524(5). Urban
high school academies may not operate outside the boundaries of a school
district of the first class. MCL 380.522(2).2 In addition, an
authorizing body is required to give priority to applicants that meet certain
requirements, including having net assets of at least $50,000,000.00. MCL
380.523(1). Section 522(2) of the Code, MCL 380.522(2), permits the
governing board of a state public university to act as an authorizing body to
issue a contract for the organization and operation of an urban high school
academy. In order to organize and operate one or more urban high school
academies, section 522(4) of the Code requires an entity3 to apply to
an authorizing body for a contract. MCL 380.522(4). Section 522(2) of the Code
limits the number of urban high school academy contracts that may be issued to
not more than 15. MCL 380.522(2). As part of its application, the entity must
include a description of, and address for, the proposed building or buildings in
which the urban high school academy will be located. MCL 380.522(4)(g). A
financial commitment is also required by the entity applying for the contract to
construct or renovate the building or buildings that will be occupied by the
urban high school academy that is issued the contract. MCL 380.522(4)(g). If an
authorizing body issues a contract to an urban high school academy corporation
to operate one or more urban high school academies, that contract must contain
certain information, including a description of the address of the proposed
building or buildings in which the urban high school academy will be located.
MCL 380.523(2)(f). You have asked three questions relating to the
application of section 524(1) of the Code to each of three school scenarios
identified in the above factual summary. Your first question may be stated as: With respect to School "A," because the configurations of
grades are not the same at the middle school and high school locations, does
that mean the 125 students per grade restriction and the one mile radius
limitation contained in section 524(1) of the Code, MCL 380.524(1), do not
apply? In order to answer this question, section 524(1) must first be
analyzed in its entirety. This provision addresses the site restrictions and
grade configurations of an urban high school academy that must be observed in
conjunction with the number of contracts that may be issued under Part 6C of the
Code: (1) An urban high school academy may be located in all or
part of an existing public school building. Except as otherwise provided in
this subsection, an urban high school academy shall not operate at a site
other than the single site requested for the configuration of grades that
will use the site, as specified in the contract. However, an authorizing
body may include a provision in the contract allowing an urban high school
academy to operate the same configuration of grades at more than 1 site. If
an urban high school academy operates the same configuration of grades at
more than 1 site, each of those sites shall be considered to be operated
under a separate contract, and the operation shall be equivalent to the
issuance of a contract, for the purposes of the limitation in section 522(2)
on the number of contracts that may be issued under this part. For the
purposes of this subsection, if an urban high school academy operates
classes at more than 1 location, the urban high school academy shall be
considered to be operating at a single site if all of the locations are
within a 1-mile radius of the urban high school academy's central
administrative office and if the total number of pupils enrolled in any
particular grade at all of the locations does not exceed 125. [MCL
380.524(1).] Since Michigan courts have not interpreted section 524(1), this
provision must be construed using established principles of statutory
construction. The primary goal of statutory interpretation is to give effect to
the intent of the Legislature. Brown v Detroit Mayor, 478 Mich 589, 593;
734 NW2d 514 (2007). Legislative intent is discerned from the statutory text.
People v Lively, 470 Mich 248, 253; 680 NW2d 878 (2004). The first step is
to review the language of the statute. Brown, 478 Mich at 593. If the
statute is unambiguous on its face, it is presumed that the Legislature intended
the meaning expressed, and judicial construction is neither required nor
permitted. Id. To effectuate the intent of the Legislature, courts
"interpret every word, phrase, and clause in a statute to avoid rendering any
portion of the statute nugatory or surplusage." Herald Co v Eastern Michigan
Univ Bd of Regents, 475 Mich 463, 470; 719 NW2d 19 (2006). The statutory
language must be read and understood in its grammatical context, unless it is
clear that something different was intended. Herman v Berrien County, 481
Mich 352, 366; 750 NW2d 570 (2008). Finally, in defining particular words in
statutes, both the plain meaning of the critical word or phrase as well as its
placement and purpose in the statutory scheme must be considered. Id. All
words and phrases shall be construed and understood according to the common and
approved usage of the language. MCL 8.3a. Section 524(1) of the Code is composed of five sentences. The
first sentence authorizes an urban high school academy to use a public school
building. After that, section 524(1) sets forth broad principles that govern the
number of sites at which an academy may operate under a single contract. The
first two sentences of section 524(1) provide: An urban high school academy may be located in all or part
of an existing public school building. Except as otherwise provided in this
subsection, an urban high school academy shall not operate at a site other
than the single site requested for the configuration of grades that will
use the site, as specified in the contract. [MCL 380.524(1); emphasis
added.] These first two sentences of section 524(1) are nearly identical
to the language found in Part 6A of the Code, MCL 380.504(1), relating to public
school academies.4 OAG, 2003-2004, No 7126, p 13 (March 6, 2003),
analyzed that language in MCL 380.504(1) and concluded that the second sentence
necessarily permits a public school academy to operate at more than one site
under a single contract, provided that it operates only a single site for each
configuration of grades. Additionally, the academy was allowed to operate only
at the site or sites specified in the school's application and contract issued
by the authorizing body. OAG No 7126 rejected the conclusion that all
schools that a public school academy may operate under a single contract must be
at one site, because such an interpretation would render the phrase in the
second sentence, "for the configuration of grades that will use the site,"
surplusage in violation of the applicable rule of statutory interpretation: To give meaning to every word in section 504(1) of the
Revised School Code, it must be concluded that the Legislature has limited
the number of sites at which a public school academy may conduct its
operations to a single site for each configuration of grades. A
public school academy may not, for example, operate three separate
elementary schools under a single contract, all covering the same grades, at
three separate locations. The statute does, however, permit a public school
academy to operate at more than one site provided it uses only a single site
for each configuration of grades. [Emphasis added.] This same construction applies to determining the number of
sites an urban high school academy may operate under MCL 380.524(1), which was
enacted into law after OAG No 7126 was issued. In the second sentence of this
provision, the Legislature used the same language to state a similar prohibition
that an urban high school academy "shall not operate at a site other than the
single site requested for the configuration of grades that will use the site."5
Therefore, to conclude that an urban high school academy may only operate at a
single site per contract, without regard to the grade configurations, would also
render the phrase "for the configuration of grades that will use the site"
surplusage and violate the applicable rule of statutory construction. MCL
380.524(1), accordingly, permits an urban high school academy to operate at more
than one site under a single contract provided it operates at a single site for
each configuration of grades. Although the second sentence of section 524(1) prohibits an
urban high school academy from operating the same configuration of grades at
more than a single site under a single contract, the Legislature provided an
exception to this prohibition in the third and fourth sentences of the section,
which provide: However, an authorizing body may include a provision in the
contract allowing an urban high school academy to operate the same
configuration of grades at more than 1 site. If an urban high school academy
operates the same configuration of grades at more than 1 site, each of those
sites shall be considered to be operated under a separate contract, and the
operation shall be equivalent to the issuance of a contract, for the
purposes of the limitation in section 522(2) on the number of contracts that
may be issued under this part. [MCL 380.524(1).] Thus, if a contract allows an urban high school academy to
operate the same configuration of grades at more than one site, the fourth
sentence of section 524(1) provides that each of those sites are to be treated
as being operated under a separate contract for purposes of counting the maximum
of 15 allowable contracts. The fifth and last sentence of section 524(1) then qualifies the
fourth sentence under circumstances where the academy's locations are in close
proximity to its central administrative office, and enrollment is limited: For the purposes of this subsection, if an urban high school
academy operates classes at more than 1 location, the urban high school
academy shall be considered to be operating at a single site if all
of the locations are within a 1-mile radius of the urban high school
academy's central administrative office and if the total number of pupils
enrolled in any particular grade at all of the locations does not exceed
125. [MCL 380.524(1); emphasis added.] As previously noted, the one-site-per-contract limitation only
applies if the same configuration of grades is offered at multiple sites.
Accordingly, the fifth sentence could have no application except to operation of
the same configuration of grades under a single contract at multiple sites; it
has no application to grade configurations that are not duplicated at another
location. The plain language of the last sentence in section 524(1) and
its placement following the pronouncement that operating the same configuration
of grades at more than one site will result in each site operating under
separate contracts, demonstrates that the Legislature intended to set forth
specific conditions that would allow an urban high school academy that is
operating the same configuration of grades at more than a "single site" to be
considered as operating at a "single site" and not considered to be operating
under separate contracts. The significance of this provision relates to the
number of contracts or contract equivalents that result if an urban high school
academy operates the same configuration of grades at more than one site pursuant
to the fourth sentence of section 524(1). Thus, if an urban high school academy
operates the same configuration of grades at more than one site, it is still
regarded as operating a single site for that configuration of grades and it
is not considered to be operating under a separate contract or contract
equivalent for each of those sites "for the purposes of the limitation in
section 522(2) on the number of contracts that may be issued under this part" as
long as all the sites with the same configuration of grades satisfy the one-mile
radius and 125-pupil restrictions. This construction is further supported by the placement of the
fifth sentence at the end of section 524(1) immediately following the
Legislature's mandate that, if an urban high school academy operates the same
configuration of grades at more than one site, each of those sites shall be
considered to be operated under a separate contract and the operation shall be
equivalent to the issuance of a contract for the purposes of the 15-contract
limitation. The last sentence sets the conditions where the operation of "more
than 1 location" will be considered a "single site" and not result in the use of
a contract or contract equivalent for purposes of the 15-contract limitation.
Accordingly, it must be concluded that the one-mile radius and
125-pupil-per-grade limitations in the last sentence of section 524(1) do not
apply to a site or location at which an urban high school is operating an
entirely different configuration of grades � one which does not come within the
prohibition of the second sentence of section 524(1). It is my opinion, therefore, in answer to your first question,
that an urban high school academy duly chartered under Part 6C of the Revised
School Code, 1976 PA 451, MCL 380.1 et seq, that operates a middle school
and a high school at two different locations with different configurations of
grades at the two schools is not subject to the 125-pupil-per-grade restriction
or the one-mile-radius limitation contained in section 524(1) of the Code, MCL
380.524(1). The 125-pupil and one-mile radius conditions only apply under
circumstances where the same configuration of grades is operated at more than
one site. The academy may operate at multiple sites with different
configurations of grades under a single contract if authorized to do so by its
authorizing body. Your request next describes School B as authorized to operate
kindergarten through grade 12 at four locations. The four locations consist of a
high school location (grades 9 through 12), a middle school location (grades 6
through 8), and two separate elementary school locations (two schools operating
kindergarten through grade 5). School B's central administrative office is
located at School B's high school location. All four locations are within a
one-mile radius of School B's central administrative office. School B only plans
to operate the same configuration of grades at the two elementary school
locations. In order to comply with section 524(1) of the Code, MCL 380.524(1),
School B will limit the total enrollment at the two elementary school locations
to 125 students per grade. It is expected that more than 125 students per grade
will be enrolled at the middle school and at the high school. Based on these facts, your next question becomes: With respect to School "B," because School "B" will only
operate the same configuration of grades, K-5, at the two elementary school
locations, does that mean the 125 students per grade restriction and the one
mile radius limitation contained in section 524(1) of the Code, MCL
380.524(1), do not apply to School "B"'s middle school and high school
locations because those schools do not operate the same configuration of
grades? The previous analysis applies equally to this question. Section
524(1) permits an urban high school academy to operate at more than one site
provided it operates at a single site for each configuration of grades. Section
524(1) also permits an authorizing body to allow an urban high school academy to
operate the same configuration of grades at more than one site, yet be
considered a "single site" if the statutory criteria are met. An urban high
school academy that operates the same configuration of grades at more than one
site is regarded as operating them at a single site, and is not considered to be
operating each of them under a separate contract for purposes of the 15-contract
maximum, as long as all of the locations with the same configuration of grades
satisfy the one-mile radius and 125-pupil restrictions. The one-mile radius and
125-pupil-per-grade restrictions do not apply to sites or locations that do not
duplicate a configuration of grades. It is my opinion, therefore, in answer to your second question,
that an urban high school academy duly chartered under Part 6C of the Revised
School Code, 1976 PA 451, MCL 380.1 et seq, that operates two elementary
schools (both offering kindergarten through grade 5), one middle school, and one
high school, each at separate locations, may operate under a single authorizing
contract provided that the two elementary schools offering the same
configuration of grades have a combined total enrollment not exceeding 125
pupils per grade and are both located within a one-mile radius of the academy�s
central administrative office. The 125-pupil-per-grade restriction and the
one-mile-radius limitation contained in section 524(1) of the Revised School
Code, MCL 380.524(1), do not apply to either the high school or the middle
school because they operate different configurations of grades. Your final question asks: With respect to School "C," because School "C" operates all
of its grades at one location, does that mean the 125 students per grade
restriction and the one mile radius limitation contained in section 524(1)
of the Code, MCL 380.524(1), does [sic] not apply? As previously explained, the 125 pupil-per-grade restriction and
the one-mile radius limitation contained in the fifth sentence of section 524(1)
apply solely to circumstances where the same configuration of grades is offered
at multiple locations under a single contract. It has no application to a school
operated entirely at a single site. It is my opinion, therefore, in answer to your third question,
that an urban high school academy duly chartered under Part 6C of the Revised
School Code, 1976 PA 451, MCL 380.1 et seq, that operates grades 6
through 12 (including a middle school and a high school) at a single location
where its central administrative office is also located is not subject to the
125-pupil-per-grade restriction or the one-mile-radius limitation of MCL
380.524(1) because these conditions apply solely to circumstances where the same
configuration of grades is offered at multiple locations under a single
contract. MIKE COX
State Senator
The Capitol
Lansing, MI
Attorney General
1 For purposes of this analysis Schools A, B, and C
are considered to be separate urban high school academies each of which operates
under a single separate contract.
2 School districts of the first class include those with a pupil
membership of at least 100,000 enrolled on the most recent pupil membership
count day. MCL 380.402. They are governed by the provisions of Part 6 of the
Revised School Code, MCL 380.401 � MCL 380.485. Currently, the Detroit Public
Schools is the only district of the first class in Michigan.
3 "Entity" means a non-profit corporation that is organized under the
Nonprofit Corporation Act, 1982 PA 162, MCL 450.2101 et seq, and that has
been granted tax-exempt status under section 509(a) of the Internal Revenue Code
of 1986, 26 USC 509(a).
4 MCL 380.504(1) states: "A public school academy may be located in
all or part of an existing public school building. A public school academy shall
not operate at a site other than the single site requested for the
configuration of grades that will use the site, as specified in the
application required under section 502 and in the contract." [Emphasis added.]
5 OAG No 7126 was issued March 6, 2003. Part C was added to the Code
by the passage of Senate Bill 393. That bill was passed by the Senate on June
18, 2003, and by the House of Representatives on July 17, 2003. Thus, the
Legislature was aware of the construction given to MCL 380.504(1) by OAG No 7126
when it enacted the same language in the second sentence of MCL 380.524(1).