Clonlara, Inc v. State Board of Education , 442 Mich. 230 ( 1993 )

Levin, J.

The question presented is whether nonpublic school and home school compliance procedures, published in October, 1986, by the Department of Education pursuant to the nonpublic school act,¹ the compulsory school attendance act,² and the intermediate school districts act,³ are invalid because they were not promulgated in accordance with the procedures requisite to rule making set forth in the Administrative Procedures Act.⁴ We hold that the compliance procedures are not rules, and therefore are not invalid because they were not promulgated pursuant to the apa rule-making requirements. They are interpretive statements that do not have the force of law.⁵

i

Clonlara, Inc., and Deborah McConnell commenced this action, seeking declaratory and injunctive relief barring the State Board of Education and the Department of Education⁶ from enforcing the compliance procedures.

Clonlara and McConnell claimed that the compliance procedures constitute rules and are invalid because they were not promulgated in accordance with the apa, that the compliance procedures subject home school parents to prosecution under the compulsory attendance law⁷ without providing an administrative hearing required by the nonpublic school act,⁸ and that the compliance procedures are void for vagueness.

Clonlara is a private, nonreligious school that applies an alternate philosophy in the education of children. In addition to its campus program based in Ann Arbor, Clonlara offers curriculum and administrative assistance through its home based education program to parents who have chosen to educate their children at home.

Approximately five hundred families, including McConnell’s family, have contracted for Clonlara’s home school services. Since September, 1984, McConnell has educated her three school-age children at home with the aid of Clonlara.⁹ The McConnell children receive substantially all their educational instruction from their mother at home, occasionally attending classes at the Clonlara campus. McConnell has a high school education, but does not have a teaching certificate or permit to teach either in elementary or secondary school.

During the six-month period preceding the February, 1989, hearing in the circuit court, the McConnell children attended approximately twelve hours of classes with certified teachers during eight visits to Clonlara. McConnell estimated that her children were in communication with certified teachers an average of 1.5 hours per day. This included telephone conversations with certified teachers at Clonlara and telephone and personal communication with three certified teachers who taught their children at home.¹⁰

The compliance procedures were not promulgated in accordance with the apa rule-making requirements. The compliance procedures concern the collection and processing of information respecting the exercise of the department’s supervisory authority under the nonpublic school act. The circumstances in which the department may institute enforcement proceedings for noncompliance with the provisions of the nonpublic school act are stated.¹¹ The compliance procedures also state that a home school shall provide instruction:

—by a certified teacher;

—in social studies and science classes;

—during a school year lasting at least 180 days.

The circuit judge issued a preliminary injunction that required the department to modify its information-gathering membership report form, but did not enjoin use of the compliance procedures.

After a hearing, the judge ruled that the compliance procedures were vague and arbitrary and "so shot through with problems” that it was impossible to separate those procedures that met legal requirements and standards set forth by law, and those that did not. He said that instruction of home school pupils must be provided by certified teachers, but concluded that (1) home school pupils need not receive 180 days of instruction each school year, (2) the course of study to be taught in home schools need not include social studies and science, and (3) the department could not interpret the term "instruction” as used in the nonpublic school act, because the Legislature did not define it.

The Court of Appeals affirmed on different grounds.¹² The Court held that the compliance procedures were rules that had not been promulgated in accordance with the apa and were therefore void. The Court said that the compliance procedures were rules because they "prescribe the procedures involved in applying the law enforced or administered by the school agency.”¹³

ii

It has been said that "[a]n agency’s authority to adopt rules is typically provided for in the statute creating the agency and vesting it with certain powers,” and that "[r]ulemaking authority may also be inferred from other statutory authority granted to an agency.”¹⁴ Bienenfeld, Michigan Administrative Law (2d ed), ch 4, pp 18, 19. This Court has said that "what is essential to a valid . . . Michigan ’rule’ is: a reasonable exercise of legislatively delegated power, pursuant to proper procedure.”¹⁵

In February, 1986, an assistant attorney general wrote the Superintendent of Public Instruction in response to his inquiry whether the Department of Education has the authority to promulgate rules regulating home schools pursuant to the nonpublic school act. He observed that there is no express grant of rule-making authority in the act. He said that in the sixty-five years since its enactment, the department had not promulgated any rules pursuant to the nonpublic school act. He concluded that the department does not have the authority to promulgate rules regulating home schools pursuant to the nonpublic school act._

In contrast with the nonpublic school act, the School Code authorizes the State Board of Education to promulgate rules in a number of areas.¹⁶

Rules adopted by an agency in accordance with the apa have the force and effect of law. They must be promulgated in accordance with' the procedures set forth in the apa, and are not valid if those procedures are not followed.¹⁷ Where, however, the agency has not been empowered to promulgate rules, policy statements issued by it need not be promulgated in accordance with apa procedures and do not have the force of law. Such statements are so-called "interpretive rules.” As expressed by Professor Davis, "An interpretive rule is any rule an agency issues without exercising delegated legislative power to make law through rules.”¹⁸

m

The apa provides:

"Rule” means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or recision thereof. . . .[¹⁹]

Specifically excluded from the definition of "rule” are:

(g) An intergovernmental, interagency, or intraagency memorandum, directive, or communication that does not affect the rights of, or procedures and practices available to, the public.

(h) A form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory.

(j) A decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected.[²⁰]

A

Agencies have the authority to interpret the statutes they are bound to administer and enforce.²¹

Legislative rules have the force of law. Interpretive "rules” state an agency’s interpretation of a statute. Legislative rules are enforceable in and of themselves. But an agency must rely on the underlying statute to support its reading of a statute set forth in an interpretive "rule.”

Legislative rules are substantive rules that have the force and effect of law. These rules fill in the interstices of the statute and presumably carry out its intent in greater detail. A court may not substitute its judgment of the content of a legislative rule, but may only strike the rule if the agency lacked statutory authority to adopt it, the agency failed to follow proper procedure, or the rule is unreasonable. [Bienenfeld, supra, ch 4, p 18.]

[IJnterpretive rules are, basically, those that interpret and apply the provisions of the statute under which the agency operates. No sanction attaches to the violation of an interpretive rule as such; the sanction attaches to the violation of the statute, which the rule merely interprets. . . . They state the interpretation of ambiguous or doubtful statutory language which will be followed by the agency unless and until the statute is otherwise authoritatively interpreted by the courts.

If the rule represents something more than the agency’s opinion as to what the statute requires— if the legislature has delegated a measure of legislative power to the agency, and has provided a statutory sanction for violation of such rules as the agency may adopt — then the rule may properly be described as legislative. [1 Cooper, State Administrative Law, pp 174-175.]

B

The compliance procedures state in what circumstances the Department of Education will consider a home school to be violative of the nonpublic school act. The department is obliged to hold a hearing when it contends that a home school is in violation of the act’s provisions.²² The process of deciding when a violation has occurred necessarily involves interpretation of the nonpublic school act. Thus, setting guidelines concerning when the department will seek to enforce the act is not the same as promulgating legislative rules.

C

We agree with the Court of Appeals that the board erred in construing the nonpublic school act as requiring a 180-day school year, although for reasons other than those stated in the opinion of the Court of Appeals. We disagree with the Court of Appeals, however, concerning the "social studies and science”²³ course requirements. Those course requirements are valid. In DeJonge,²⁴ this Court holds that the teacher certification requirement is violative of the First Amendment when it interferes with a parent’s Free Exercise rights. In Bennett,²⁵ a majority of the Court decides that the teacher certification requirement is not violative of substantive due process guaranteed by the Fourteenth Amendment.

iv

Clonlara and McConnell make a number of arguments that the compliance procedures are in fact legislative rules, despite the absence of statutorily delegated power to promulgate rules.

A

Clonlara and McConnell observe that the compliance procedures include a form that parents are required to fill out and return to their local school districts. The form is not in issue in this appeal. It is authorized by § 5 of the nonpublic school act, and was approved by this Court in Sheridan Rd Baptist Church v Dep’t of Ed, 426 Mich 462, 472, n 5; 396 NW2d 373 (1986), cert den 481 US 1050 (1987).

B

Clonlara and McConnell contend that the procedures go beyond the scope of the law and therefore are not interpretive statements under an exception set forth in § 7(g) of the apa. An interpretive statement that goes beyond the scope of the law may be challenged when it is in issue in a judicial proceeding. An interpretation not supported by the enabling act is an invalid interpretation, not a rule. Otherwise, "wrong” interpretive statements might become rules with the force of law on the false premise that they were promulgated in accordance with the apa procedures. "[B]ecause a reviewing court disagrees with an agency interpretation does not render it legislative.”²⁶

c

Clonlara and McConnell contend that the compliance procedures are not an intergovernmental, interagency, or intra-agency memorandum under exception § 7(g) because they were distributed to the public. Communication to the public does not convert an interpretive statement into an independently enforceable rule. Rather, informing the public is one of the purposes of interpretive "rules.” "Interpretive rules are statements as to what the agency thinks a statute or regulation means; they are statements issued to advise the public of the agency’s construction of the law it administers.”²⁷

Further, the fact that persons may conform their behavior to the interpretations does not mean that the interpretations are legislative rules. The "pragmatic consequences” of interpretive "rules” is that they are published as "declaration^] of the proper interpretation of the law, and those affected will normally conform, since the regulation provides a practical guide as to how the office representing the public interest in enforcing the law will apply it.”²⁸

D

Underlying many of the arguments of Clonlara and McConnell is the sense that these procedures must be legislative rules rather than interpretive statements because they have a substantial effect. The dissent adopts this argument, and on that basis would hold that the 180-day school year requirement is invalid. The argument that substantive statements are enforceable rules when the agency has not been granted legislative authority to promulgate rules has not been followed in Michigan, and has been rejected by the federal courts.²⁹

The compliance procedures do not create or destroy rights. A home school parent may ignore the compliance procedures at the risk of having the department seek a hearing under § 4 of the nonpublic school act. At such a hearing, it is the underlying statute that would control whether the home school parent violated the law, not the department’s interpretation. At such a proceeding, the department would seek to convince a court that its interpretation of the statute is correct and that in fact the parents had violated the statute. The department must show violation of the statute, not violation of an interpretive rule.

v

The dissent would hold that because the 180-day school year requirement has the effect of a rule, it is an invalid rule rather than an invalid interpretation. An invalid interpretation cannot, however, become an invalid rule unless the agency is empowered to promulgate rules.³⁰

On the same principle that a person cannot be prosecuted for violating a law that he is not obliged to obey, an agency that has not been granted rule-making authority is not obliged to follow rule-making procedures. The Legislature may require an agency to follow apa rule-making procedures by empowering the agency to make rules. When it fails to so empower an agency, the agency need not follow the apa rule-making procedures.³¹

Reliance in the dissent on Michigan and federal precedent is misplaced. In all the Michigan cases relied on by the dissent, the issue was whether an agency that had been granted rule-making authority was required to comply with apa procedures.

Courts look at the substance or effect of agency action when an agency has been empowered to make rules because of the need to prevent the agency from seeking to accomplish the goals of rule making without observing the apa procedural requirements for rule making. None of the cases relied on by the dissent holds that an agency, not empowered to make rules, had promulgated an invalid rule because it had failed to follow the apa procedures.

In Detroit Base Coalition for Human Rights of Handicapped v Dep’t of Social Services, 431 Mich 172; 428 NW2d 355 (1988) the dss was required³² to promulgate rules providing procedures for hearings where a person contests the denial or reduction of public assistance. At issue was whether the dss could change such hearing procedures through the issuance of what it labeled a policy bulletin and thereby avoid the rule-making requirements of the apa. This Court, in holding that the agency was required to observe the apa, wrote that "[t]he only relevant statutory provision mandates that the department conduct hearings pursuant to promulgated rules.”³³ (Emphasis added.)

Similarly, in Farm Bureau, petitioners challenged letters of the Director of the Bureau of Workmen’s Compensation, establishing new rate schedules as rules on the basis that the changes should have been promulgated under the apa. The Workers’ Disability Compensation Act provided that the director, in accordance with the apa, " 'may make rules not inconsistent with this act for carrying out the provisions of the act. . . .’"³⁴

It may, indeed, be sound policy and a sound construction of the apa, to hold that substance and effect are determinative and that an agency must act through apa rule-making procedures when it has been authorized by the Legislature to promulgate rules. But, as Professor Davis stated in a section of his treatise entitled "Can Substantial Impact of Rules Give Them Force of Law if Congress Has Delegated to the Agency No Power to Make Rules Having Force of Law?”:

The idea that substantial impact of rules may give them force of law seems on its face totally without merit. Full examination of the idea confirms that it is totally without merit. [2 Davis Administrative Law (2d ed), § 7:16, p 76.]

The Department of Education is not authorized, explicitly or implicitly, to promulgate rules relating to the nonpublic school act. Consequently, action taken by the department cannot be an invalid rule. The negative implication of Davis’ statement is that if substantial effect cannot give rules the force of law — and thus constitute them valid legislative rules — then substantial effect similarly cannot make them invalid rules.

vi

We now consider whether the compliance procedures are valid interpretations of the law. This Court has said that the subsection 7(h) exception for interpretive statements must be narrowly construed "and requires that the interpretative statement at issue be merely explanatory.” Coalition for Human Rights, supra, p 184.

The Court of Appeals found that three of the compliance procedures were not interpretive statements under subsection 7(h) because they exceeded the scope of the nonpublic school act or were not otherwise statutorily supported.³⁵

A

The compliance procedures state that an instructor must have a valid teaching certificate recorded with the intermediate school district office.³⁶

Section 2 of the nonpublic schools act³⁷ defines a private, denominational or parochial school as "any school other than a public school giving instruction to children below the age of 16 . . . .” Home schools are covered by the act because they are "any school other than a public school.”_

Section 1³⁸ states that "[i]t is the intent of this act that the sanitary conditions of such schools, the courses of study therein, and the qualiñcations of the teachers thereof shall be of the same standard as provided by the general school laws of the state.” (Emphasis added.) This section, then, requires that nonpublic schools provide comparable education, including teacher qualifications, as public schools.

Section 3³⁹ provides:

No person shall teach or give instruction in any of the regular or elementary grade studies in any private, denominational or parochial school within this state who does not hold a certiñcate such as would qualify him or her to teach in like grades of the public schools of the state .... [Emphasis added.]

School Code § 1233⁴⁰ provides, with a few exceptions, that "the board of a school district or intermediate school district shall not permit a teacher who does not hold a valid teaching certificate to teach in a grade or department of the school . . . .” Under this provision, all instruction in public schools is conducted by certified teachers.

Reading these four provisions in conjunction leads to the conclusions that 1) home schools are covered by the nonpublic school act because they are schools "other than a public school”;⁴¹ 2) as a school, "other than a public school” home schools are required to provide instruction by a teacher who would otherwise be qualified to teach in the public schools; 3) all hours of instruction in home schools must be conducted by certified teachers, because School Code § 1233⁴² requires that all teaching in public schools be done by certified teachers and the nonpublic school act⁴³ mandates that nonpublic schools meet the same standards as public schools.

Today, in People v DeJonge (After Remand), 442 Mich 266; 501 NW2d 127 (1993), this Court holds that the teacher certification requirement is unconstitutional when it infringes on a parent’s First Amendment free exercise rights. And, in People v Bennett (After Remand), 442 Mich 316; 501 NW2d 106 (1993), a majority of the Court sustains the constitutionality of the teacher certification requirement against a challenge claiming that the requirement is violative of substantive due process.⁴⁴

B

There is no statutory basis for the department to require that home schools have school years that last a minimum of 180 days. The 180-day requirement goes beyond the scope of the enabling statutes and is therefore an invalid interpretation.

This Court, in State Bd of Ed v Houghton Lake Community Schools, 430 Mich 658; 425 NW2d 80 (1988), considered whether the State Board of Education could compel a local board of education to provide 180 days of instruction in a school year. It construed § 1284(1)⁴⁵ of the School Code and State School Aid Act, § 101,⁴⁶ which both provide that the minimum number of days for student instruction shall be 180 days. The Court held that these provisions do not contain an absolute mandate of 180 days. Rather, they state that if a district does not hold school for 180 days, the district will forfeit some of its state aid.

There is thus no requirement that public schools be in session 180 days. As a result, the board cannot base the 180-day school year requirement for home schools on an analogy to or comparability of public school requirements.

Nothing in the nonpublic school act indicates that nonpublic schools must be in session for 180 days. That the average school year in the state and the nation is 180 days does not support the 180-day interpretation.

c

The requirement that home schools teach social studies and science is supported by several statutory provisions. The compulsory attendance act requires that a nonpublic school child attend a nonpublic school "which teaches subjects comparable to those taught in the public schools to children of corresponding age and grade . . . .”⁴⁷ There was testimony that all public schools teach social studies and science. The Legislature has identified science and history courses as among those that public schools must provide.⁴⁸

VII

The decision of the Court of Appeals, which held that the compliance procedures were invalid because they were not promulgated in accordance with the apa, is reversed.

The teacher certification and social studies and science requirements are valid interpretations of the relevant statutory provisions.

The 180-day school year requirement is not valid.

We make no decision concerning the correctness of any of the other compliance procedures or interpretations that were not addressed in the circuit court or the Court of Appeals or raised on appeal in this Court.

Cavanagh, C.J., and Brickley, Boyle, and Mallett, JJ., concurred with Levin, J.

1 1921 PA 302, MCL 388.551 et seq.; MSA 15.1921 et seq.

2 School Code; MCL 380.1561 et seq.; MSA 15.41561 et seq.

3 School Code; MCL 380.653; MSA 15.4653.

4 1969 PA 306, MCL 24.201 et seq.; MSA 3.560(101). et seq. See chapter 3, Procedures for Processing and Publishing Rules, MCL 24.231 et seq.; MSA 3.560(131) et seq.

5 The Administrative Procedures Act provides that an "interpretive statement” that in itself does not have the "force and eifect of law but is merely explanatory,” is not a rule. MCL 24.207(h); MSA 3.560(107)(h).

6 Phillip E. Runkel, Superintendent of Public Instruction, is also a defendant.

7 MCL 380.1561 et seq.; MSA 15.41561 et seq.

8 MCL 388.554 et seq.; MSA 15.1924 et seq.

9 When the trial began in February 1989, Daniel was fifteen, Tamara was thirteen, and Gene David was twelve.

10 It is unclear whether McConnell included use of educational audio- and videotapes and a computer in her estimate.

11 Section 4, MCL 388.554; MSA 15.1924, provides that the superintendent of public instruction, upon discovering a violation of the act, shall serve notice with a complaint upon the parents and hold a hearing. If a violation is found and the parents do not remedy it within an appropriate amount of time, the children may be compelled to attend public school under the compulsory attendance law. See n 7.

12 188 Mich App 332; 469 NW2d 66 (1991).

13 Id., p 337.

14 Neither Clonlara nor McConnell claim that rule-making authority can be inferred from either the nonpublic school act or another statute.

15 Michigan Farm Bureau v Workmen’s Compensation Bureau, 408 Mich 141, 150; 289 NW2d 699 (1980).

16 The following are provisions of the School Code authorizing the State Board of Education to promulgate rules:

MCL 380.1172(1); MSA 15.41172(1). "The state board shall promulgate rules concerning personality tests, both projective and nonprojective types, administered to pupils in school districts of the state as school projects or as parts of the school programs.”

MCL 380.1251(1); MSA 15.41251(1). "School psychological service is a related nonclassroom function and shall be operated under rules promulgated by the state board, which shall establish the educational and experience requirements for, and certify as qualified and issue certificates to, the personnel for the services.”

MCL 380.1252; MSA 15.41252. Nursing services "shall be operated under rules promulgated by the state board which shall establish the certification requirements for registered nurses in the services.”

MCL 380.1296; MSA 15.41296. Auxiliary services shall be provided under rules promulgated by the board. These "include health and nursing services and examinations; street crossing guard services; . . . teacher of speech and language services.”

MCL 380.1301(2); MSA 15.41301(2). "A pregnant person who is under the compulsory school age may withdraw from a regular public school program in accordance with rules promulgated by the state board.”

MCL 380.1301(4); MSA 15.41301(4). "The board shall promulgate rules to implement this section,” providing that a pregnant person cannot be expelled because of pregnancy and the school boards or districts can provide alternative education programs for school-age, expectant mothers and their children.

MCL 380.1531(12); MSA 15.41531(12). "The state board shall promulgate rules for the implementation of” teacher certification and qualifications.

MCL 380.1703(1); MSA 15.41703(1). "Special education personnel shall meet the qualifications and requirements of the rules promulgated by the state board.”

MCL 380.1703(2); MSA 15.41703(2). Special education curriculum, eligibility, review procedures regarding placement, class and program size, equipment quantity and quality, supplies and housing, adequacy of instructional methods and length and content of the school day "shall be in accordance with rules promulgated by the state board relative to special education programs and services.”

MCL 380.1741; MSA 15.41741. "An intermediate school board operating or contracting for the operation of special education programs or services may carry pupils in membership in the same manner as a local school district and shall be entitled to its proportionate share of state school aid available for these programs. Membership shall be calculated on the basis provided in rules promulgated by the state board.”

17 The apa provides a means by which the public and the Legislature can participate in agency rule making through public hearings and approval by the joint committee on administrative rules with intervals between each process. The apa seeks to assure that the essentials of the legislative process are not lost when law-making functions, formerly performed by the Legislature, are delegated to an agency. See Detroit Base Coalition for Human Rights of Handicapped v Dep’t of Social Services, 431 Mich 172; 428 NW2d 335 (1988).

18 2 Davis, Administrative Law (2d ed), § 7:8, p 36 and also 1989 Supp, p 243.

19 MCL 24.207; MSA 3.560(107).

20 id.

21 Wayne Twp Metropolitan School Dist v Davila, 969 F2d 485, 490 (CA 7, 1992).

22 Section 4, MCL 388.554; MSA 15.1924. In People v Bennett (After Remand), 442 Mich 316; 501 NW2d 106 (1993), a majority of the Court today decides that persons conducting home schools are entitled to such a hearing before they can be found to have violated the compulsory school act.

23 Note 12 supra, p 339.

24 People v DeJonge (After Remand), 442 Mich 266; 501 NW2d 127 (1993).

25 People v Bennett, n 22 supra. The Court, in three opinions, vacates the defendants’ convictions on the ground that they were entitled to a hearing under the nonpublic school act before they could be prosecuted for failing to send their children to school.

26 Wayne Twp Metropolitan School Dist, n 21 supra, p 494. Interpretive "rules” are invalid if they do more than specify the application of a legislative purpose implicit in the general language used by the legislature, if they conflict with the governing statute, if they extend or modify the statute, or if they have no reasonable relationship to a statutory purpose. See 1 Cooper, supra, pp 252-259.

27 Schwartz, Administrative Law (2d ed), § 4.6, p 159 (emphasis added).

28 Id., pp 159-160.

All rules which interpret the underlying statute must be binding because they set forth what the agency believes is congressional intent. . . . Courts are not bound by an agency’s interpretation, . . . but parties regulated by the statute are. . . . "[A]U rules are 'binding’ on the regulated parties in the sense that they set, for the time, the legal minima of behavioral standards.” [Wayne Twp Metropolitan School Dist, n 21 supra, p 493.]

29 See Wayne Twp Metropolitan School Dist, n 21 supra, p 493; "[T]he test is not substantial impact but is exercise of delegated power to make law through rules . ...” 2 Davis, n 18 supra, § 7:8, p 39.

30 Professor Anthony, in an article relied on by the dissent, acknowledges this point at the outset. He wrote:

Legislative rules can readily be differentiated from those that are nonlegislative. The fundamental idea is that a "legislative rule is the product of an exercise of delegated legislative power to make law through rules.” More particularly, a rule qualifies as legislative if all of the following requirements are met: 1) The agency must possess delegated statutory authority to act with respect to the subject matter of the rule. 2) Promulgation of the rule must be an intentional exercise of that delegated authority. 3) The agency must also possess delegated statutory authority to make rules with the force of law. 4) Promulgation of the rule must be an intentional exercise of authority to make rules with the force of law. 5) Promulgation of the rule must be an effective exercise of that authority. 6) The promulgation must observe procedures mandated by the agency’s organic statute and by the apa .... An agency’s issuance is a valid legislative rule if and only if it meets all six of these requirements. All substantive rules that do not ñt this template are nonlegislative. They are either interpretive rules (if they interpret specific statutory or regulatory language) or policy statements (if they do not). [Anthony, Interpretive rules, policy statements, guidances, manuals and the like — Should federal agencies use them to bind the public? 41 Duke L J 1311, 1321-1323. Citations omitted, emphasis in original, except emphasis added preceding 6.]

31 See n 16 for examples of where the Legislature has given the Department of Education rule-making authority.

32 See MCL 400.9(1); MSA 16.409(1).

33 Coalition for Human Rights, n 17 supra, 431 Mich 188.

34 Farm Bureau, n 15 supra, 408 Mich 156. Some of the other cases relied upon by the dissent where the agency had been granted rule-making authority include Jordan v Dep’t of Corrections, 165 Mich App 20; 418 NW2d 914 (1987); Thompson v Dep’t of Corrections, 143 Mich App 29; 371 NW2d 472 (1985); Schinzel v Dep’t of Corrections, 124 Mich App 217; 333 NW2d 519 (1983), all of which dealt with Department of Corrections actions not taken through apa procedures but that directly affected prisoner’s rights. The Director of the Department of Corrections is empowered under MCL 791.206(3); MSA 28.2276(3) to "promulgate further rules with respect to the affairs of the department as the director considers necessary or expedient for the proper administration of this act.” In Mallchok v Liquor Control Comm, 72 Mich App 341; 249 NW2d 415 (1976), the Court of Appeals held that the commission was obliged to follow apa procedures under MCL 436.7; MSA 18.977, which provided that "[t]he commission shall adopt rules and regulations governing the carrying out of this act and the duties and responsibilities of licensees in the proper conduct and management of their licensed places.” In Baker v State Bd of Dentistry, 63 Mich App 729, 732; 235 NW2d 157 (1975), the Court of Appeals proceeded on the basis that rule-making authority had been granted to the State Board of Dentistry. The Court expressed concern regarding the undefined nature of the grant of legislative authority to the board. (The relevant provisions have since been repealed.)

Federal precedent cited by the dissent in which the agency had been granted rule-making authority include Columbia Broadcasting System, Inc v United States, 316 US 407; 62 S Ct 1194; 86 L Ed 1563 (1942) (the fcc had been granted rule-making power), and General Motors Corp v Ruckelshaus, 239 US App DC 408; 742 F2d 1561 (1984) (the epa had been granted rule-making power under the Clean Air Act).

35 We do not address any of the other compliance procedures because they have not been addressed by the Court of Appeals.

The Court of Appeals said:

The specific regulations set forth in the procedures on the basis of the broad general intent of the nonpublic school statute do not constitute mere explanation of the statute’s requirements. There is no requirement in the School Code, MCL 380.1 et seq.; MSA 15.4001 et seq. or in the nonpublic school act mandating interactive face-to-face teacher-student contact. Further, while there is a statutory requirement that certain subjects are to be taught, these subjects do not include social studies and science, which the procedures require. Furthermore, the requirement under the procedures that instruction by a certified teacher encompass 900 hours or 180 days of instruction each school year is not a mere explanation of the nonpublic school act. There is no clear legal duty for a school district to provide 180 days of instruction under the School Code, MCL 380.1284(1); MSA 15.41284(1), or the State School Aid Act, MCL 388.1701(2); MSA 15.1919(1001X2). State Bd of Ed v Houghton Lake Community Schools, 430 Mich 658, 678; 425 NW2d 80 (1988). [188 Mich App 338-339.]

36 Testimony indicates that a permit would be acceptable to the department.

37 MCL 388.552; MSA 15.1922.

38 MCL 388.551; MSA 15.1921.

39 MCL 388.553; MSA 15.1923.

40 MCL 380.1233(1); MSA 15.41233(1).

41 MCL 388.552; MSA 15.1922. This view was accepted by both sides at trial and by the circuit court and the Court of Appeals.

42 MCL 380.1233; MSA 15.41233.

43 MCL 388.551; MSA 15.1921.

44 See n 25 and accompanying text.

45 MCL 380.1284(1); MSA 15.41284(1).

46 MCL 388.1701; MSA 15.1919(1001).

47 MCL 380.1561(3)(a); MSA 15.41561(3)(a).

48 MCL 380.1171; MSA 15.41171 provides that public schools should provide instruction on the "humane treatment and protection of animals and birds” and their role in the economy of nature; MCL 380.1171a; MSA 15.41171(1) mandates that schools provide education for students in their relationship to nature and the land; MCL 380.1166; MSA 15.41166 mandates that schools provide education for students in civics and history; MCL 380.1173(1); MSA 15.41173(1) mandates that the appropriate authorities of a public school give special attention to the degree to which instruction materials, including social studies textbooks, reflect the pluralistic, multiracial, and multiethnic nature of our society. See also MCL 712A.2(a)(4), (b)(1)(A); MSA 27.3178(598.2)(a)(4), (b)(1)(A) stating that parents must provide an education to their children, including science and social studies classes, to avoid charges of neglect.