Attorney General v. East Jackson Public Schools

143 Mich. App. 634 (1985) 372 N.W.2d 638

ATTORNEY GENERAL
v.
EAST JACKSON PUBLIC SCHOOLS
ATTORNEY GENERAL
v.
LAPEER COMMUNITY SCHOOLS

Docket Nos. 78258, 78259.

Michigan Court of Appeals.

Decided June 18, 1985.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and George F. Young and Paul J. Zimmer, Assistants Attorney General, for plaintiff.

Thrun, Maatsch & Nordberg, P.C. (by Donald J. Bonato), for defendants.

Before: D.E. HOLBROOK, JR., P.J., and ALLEN and E.M. THOMAS,^[*] JJ.

D.E. HOLBROOK, JR., P.J.

Plaintiff instituted these actions in an attempt to prevent defendant school districts from continuing to collect fees from students for participating in interscholastic athletics. The trial court denied the Attorney General's request for injunctive and declaratory relief. Plaintiff appeals as of right alleging that defendants have violated their statutory authority and the Michigan Constitution by the imposition of these fees. We disagree and affirm.

Plaintiff contends that only the Legislature would have authority to impose such fees, as Const 1963, art 8, § 2 provides in pertinent part:

"The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law."

We do not find that this provision limits the right of the school districts to "make reasonable regulations relative to anything necessary for the proper establishment, maintenance, management, and carrying on of the public schools of the district * * *." MCL 380.1300; MSA 15.41300. See also MCL 380.1261; MSA 15.41261:

"The board of a school district shall have the general care and custody of the schools and property of the district and shall make and enforce suitable regulations for the general management of the schools and the preservation of the property of the district."

The fees in question only fund extracurricular activities which are not required and for which no credit is given to any participant.

Plaintiff argues that to charge such a fee violates the requirement that the state provide a free education. While we agree that extracurricular activities are important to education, we do not find any students to have been arbitrarily prevented from participation. See Cochrane v Mesick Consolidated School Dist Bd of Ed, 360 Mich. 390; 103 NW2d 569 (1960). In the instant case, no student has been barred for lack of funds. There is a confidential process under which students who do not have the means to pay will have the fees waived. We cannot say that the school board has acted in an arbitrary and unreasonable manner such as occurred in Cochrane, supra, p 401.

The question remains as to whether extracurricular activities are necessary to a system of free public elementary and secondary schools. In Bond v Ann Arbor School Dist, 383 Mich. 693; 178 NW2d 484 (1970), our Supreme Court held that textbooks and school supplies were an essential part of a system of free public education. Under Bond, two tests as to what must be provided at no cost were stated:

"[T]he ``necessary elements of any school's activity' test or the ``integral fundamental part of the elementary and secondary education' test * * *." Id., p 702.

In Bond, the Supreme Court quoted at length and with approval from Paulson v Minidoka County School Dist No 331, 93 Idaho 469; 463 P2d 935 (1970). In that case, the Court noted that social and extracurricular activities were not necessary elements of a high school career and therefore allowed the schools to set fees to cover the costs of such activities to be paid by the students so participating. In accordance with this, we do not find interscholastic athletics to be a necessary element of any school's activity. Nor can we say that these activities are an integral fundamental part of the education process rising to the level that would require them to be provided at no cost. These activities are optional and nonessential and provisions have been made to waive the fees for those students who cannot afford to pay. Plaintiff has not alleged that the fees were excessive or that the funds collected were improperly used.

The final arguments advanced by plaintiff are that the Legislature did not intend these fees to be charged. Plaintiff bases this argument on the rule expressio unius est exclusio alterius, i.e., that which is not expressed is prohibited. Plaintiff contends that since MCL 380.1522(4); MSA 15.41522(4) expressly authorizes that fees may be charged to participants for insurance costs but does not mention other fees no other fee may be assessed. We do not agree. The Legislature was only addressing insurance fees and not the assessment of fees for participation in interscholastic athletic activities. See Chesapeake & O R Co v Public Service Comm, 59 Mich. App. 88, 100-101; 228 NW2d 843 (1975).

Furthermore, the State Board of Education reevaluated and formulated policy guidelines in light of the decision in Bond, supra. These guidelines have been in effect since 1970 and continue to be utilized today and were published in a State Board of Education Position Statement in 1972. These guidelines clearly state that:

"Fees for participation in interscholastic athletic activities are legally possible if they are extracurricular in nature, students are not required to take them, and no grade or credit is given."

We presume that the Legislature is aware of this interpretation and the Legislature has had 15 years in which to rescind this guideline if it so desired. We must give these guidelines great weight. Melia v Employment Security Comm, 346 Mich. 544, 565; 78 NW2d 273 (1956). Hence, we believe the Legislature does not intend that these fees be prohibited.

We additionally note that:

"School districts possess such power as statutes expressly or by reasonably necessary implication grant to them. Senghas v L'Anse Creuse Public Schools, 368 Mich. 557; 118 NW2d 975 (1962)." Jurva v Attorney General, 419 Mich. 209, 214; 351 NW2d 813 (1984).

Accordingly, we find that the school districts were acting reasonably and within their authority in the assessment of said fees.

Affirmed. No costs. A public question involved.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.