Advisory Opinion Re Constitutionality of 1974 PA 242

Swainson, J.

I concur in sections I, II and III of Justice Levin’s opinion, but find it necessary to disagree with his analysis and result expressed in part IV. In my opinion supplying either school supplies or textbooks to private school students as called for in 1974 PA 242, § 18(3), violates Const 1963, art 8, § 2 [Proposal C] as previously interpreted in Traverse City School Dist v Attorney General, 384 Mich 390; 185 NW2d 9 (1971).

A. The scope of the advisory opinion.

In sections I and III of his opinion Justice Levin limits the scope of the issues under consideration in two ways. First, in section I he restricts the Court’s review to the question specifically raised by the Senate in its formal request for an advisory opinion:

“Is section 18(3) of Enrolled House Bill No. 6100 constitutional in relation to section 2 of Article VIII of the Constitution of Michigan, as amended, * * * ?”

Then, in section III Justice Levin eschews consideration of any other state or Federal constitutional issues which might arguably arise in the course of reviewing § 18(3) in light of Const 1963, art 8, § 2. Justice Levin states:

"Proposal C [Const 1963, art 8, § 2, second paragraph] does not speak of religion but of nonpublic schools. Proposal C, in contrast with the First Amendment, does not preclude establishment or interference with religion.

"We therefore have no need to consider whether the challenged program unduly benefits or burdens religion but only whether it directly or indirectly aids or maintains a nonpublic school.” (Footnote omitted.)

While the scope of review becomes exceedingly narrow under Justice Levin’s formulation, I believe that he has proposed a reasonable approach for the Court to follow in this advisory opinion. By definition, we are required to proceed in a factual vacuum and interpret the law without the benefits of prior fact finding and legal review. We are accordingly forced to make assumptions concerning how the questioned statute would operate once effective. I think that it is wise for the Court to therefore limit its own range of conjecture as much as possible.

B. The Constitutionality of § 18(3) under Const 1963, art 8, § 2 (Proposal C).

In Traverse City School Dist v Attorney General, 384 Mich 390; 185 NW2d 9 (1971), this Court outlined the impact of Proposal C on various types of educational assistance programs. Proceeding from the premise that the voters in adopting Proposal C were simply intent on outlawing parochiaid,¹ the Court found it unnecessary to adopt "a strict 'no benefits, primary or incidental’ rule”.² 384 Mich 390, 413. Instead, the Court favored a reasonable construction of the amendments language. Under this construction the Court concluded that shared time programs — if properly controlled by the public school system — and auxiliary services such as health care and remedial reading programs³ could be provided to private schools consonant with the mandate of proposal C.

In my opinion the Court reached correct conclusions in the Traverse City School District case because the services examined therein were properly classified as "incidental” to a private school’s establishment and existence. (See fn 2, supra). Such programs as shared time and auxiliary services, to be sure, do help a private school compete in today’s harsh economic climate; but, they are not "primary” elements necessary for the school’s survival as an educational institution. These incidental services are useful only to an otherwise viable school and are not the type of services that flout the intent of the electorate expressed through Proposal C.

A very different situation is presented, I find, in the case of the textbooks and supplies that would be made available to private schools under § 18(3).⁴ When we speak of textbooks and supplies we are no longer describing commodities "incidental” to a school’s maintenance and support. Textbooks and supplies are essential aids that constitute a "primary” feature of the educational process and a "primary” element required for any school to exist. I quote from Bond v Ann Arbor School Dist, 383 Mich 693, 702; 178 NW2d 484; 41 ALR3d 742 (1970):

"Applying either the 'necessary elements of any school’s activity’ test or the 'integral fundamental part of the elementary and secondary education’ test, it is clear that books and school supplies are an essential part of a system of free public elementary and secondary schools.”

However Proposal C is to be construed, I believe that if the will of the electorate is to be respected it must be read to bar public funding for primary and essential elements of a private school’s existence.

As I understand Justice Levin’s opinion he does not actually read Proposal C differently than I do herein. He states, for example, that "Proposal C clearly bars state support of a nonpublic school’s general educational programs”; and, he points to the same language from Bond v Ann Arbor School Dist that I have quoted above. Furthermore, he reaches the conclusion that providing school supplies to private schools does violate the prohibition of Proposal C. Turning to the textbooks, however, Justice Levin, at least for the moment, reaches a different result by engrafting a new test onto the interpretation of Proposal C expressed in Traverse City School Dist v Attorney General, supra. He argues that supplying textbooks to private schools is permissible if the "dominant effect of the program is furtherance of a substantial governmental purpose, educational or noneducational, clearly distinguishable from support of general educational programs.” While I find this to be an interesting test, I do not think that it has any applicability to our present problem. Proposal C forbids the public support of private schools. I have failed to discover any indication in the language of Proposal C that the people intended to allow primary support for private schools if the private schools were willing to subject themselves to the textbook censorship of the local public school system.

C. Conclusion.

In my opinion, furnishing either textbooks or school supplies to private schools constitutes prohibited primary support under Proposal C. I would accordingly read the language of § 18(3) to apply only to public school students and thereby preserve its constitutionality. Traverse City School Dist v Attorney General, supra, 384 Mich 390, 406.

T. G. Kavanagh, C. J., and M. S. Coleman and J. W. Fitzgerald, JJ., concurred with Swainson, J.

1 "As far as the voter was concerned, the result of all the preelection talk and action concerning Proposal C was simply this— Proposal C was an anti-parochiaid amendment — no public monies to run parochial schools — and beyond that all else was utter and complete confusion.” 384 Mich 390, 410, fn 2.

2 The Court carried over to the non-support for private school provisions found in Proposal C the construction advanced in Advisory Opinion re Constitutionality of PA 1970, No 100, 384 Mich 82; 180 NW2d 265 (1970), for distinguishing between permissible and impermissible state assistance to parochial schools. Since Proposal C speaks broadly in terms of the support and maintenance of all private schools, I think it is a proper interpretation of the Traverse City School Dist v Attorney General rule to state that Proposal C forbids aid that is a "primary” element of the support and maintenance of a private school but permits aid that is only "incidental” to the private school’s support and maintenance. 384 Mich 390, 413.

3 In Traverse City School Dist v Attorney General, supra, the Court adopted the description of auxiliary services set forth in MCLA 340.622; MSA 15.3622. In relevant part that section provides:

"Such auxiliary services shall include health and nursing services and examinations; street crossing guards services; national defense education act testing services; speech correction services; visiting teacher services for delinquent and disturbed children; school diagnostician services for all mentally handicapped children; teacher counsellor services for physically handicapped children; teacher consultant services for mentally handicapped or emotionally disturbed children; remedial reading; and such other services as may be determined by the legislature.”

4 The words of § 18(3) provide that the textbooks and supplies are to be extended to "all children of school age residing in such district”. In reality, and for the purposes of constitutional analysis, § 18(3) provides the aid to the private schools. Gaffney v State Department of Education, 192 Neb 358; 220 NW2d 550, 556 (1974).