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
State Senator
The Capitol
Lansing, MI

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
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).