Snyder v. Charlotte Public School District

J. E. McDonald, J.

Plaintiffs David and Patricia Snyder, and their minor daughter, plaintiff Brenda Snyder, reside in Eaton County, Michigan, where Brenda is enrolled in the sixth grade at the Charlotte Christian Academy. In 1981, Patricia Snyder attempted to enroll Brenda in the band course offered by the Charlotte Junior High School. The principal of the school refused to admit Brenda for band instruction because of the school district’s policy of allowing attendance in its schools of only full-time students.

Thereafter, on September 8, 1981, plaintiffs filed suit in the Eaton County Circuit Court seeking an injunction requiring defendant Charlotte Public School District to admit Brenda to the band class. Following a bench trial held on September 25, 1981, a final judgment of no cause of action and dismissal of plaintiffs’ complaint was rendered by the trial judge. Plaintiffs appeal as of right. The Attorney General of the State of Michigan has intervened as an appellant, and various parties have filed as amici curiae.

On appeal, plaintiffs contend that defendant school district’s policy of denying admission to its courses violates the First and Fourteenth Amendments to the United States Constitution and, further, that the school board is acting without statutory authority. After careful analysis of plaintiffs’ arguments, we disagree and affirm the judgment of the trial court.

I. Constitutional Considerations

Plaintiffs rely heavily on the Supreme Court’s decision in Traverse City School Dist v Attorney General, 384 Mich 390; .185 NW2d 9 (1971), for the proposition that defendant has refused to offer "shared time” band instruction to Brenda, thereby denying her equal protection of the law and coercing her into choosing between her constitutionally guaranteed right to freely exercise her religion and her desire for musical training. Defendant counters that it has elected not to provide any kind of shared time instruction whatsoever and is within its constitutional and statutory authority in doing so.

The Supreme Court discussed the concept of shared time instruction at length in Traverse City, supra, a case which involved certified questions regarding the constitutionality of Proposal C, an amendment to Const 1963, art 8, § 2. Proposal C prohibited the state or any municipality from directly or indirectly aiding private or other nonpublic schools. Consideration of Proposal C required the Court to consider the ramification for shared time instruction as it has existed in Michigan since 1921. The Court defined shared time as:

"an operation whereby the public school district makes available courses in its general curriculum to both public and nonpublic school students normally on the premises of the public school.” 384 Mich 411, fn 3.

The Court invalidated that part of Proposal C which categorically prohibited any support for nonpublic school students for part-time instruction received at public institutions, holding that such a prohibition violates the free exercise of religion and equal protection of the laws guaranteed by the federal constitution. 384 Mich 414-415. In discussing the constitutional implications of the amendment, the Court stated:

"The Attorney General’s interpretation of Proposal C severely curtails the constitutional right of school selection while the state interests advanced by Proposal C do not require this intrusion upon the exercise of a fundamental constitutional right. Consequently, excluding private school children from receiving shared time instruction or auxiliary services at the public school is a denial of equal protection. This does not mean that a public school district must offer shared time instruction or auxiliary services; it means that if it does offer them to public school children at the public school, nonpublic school students also have a right to receive them at the public school.

"When a private school student is denied participation in publicly funded shared time courses or auxiliary services offered at the public school because, of his status as a nonpublic school student and he attends a private school out of religious conviction, he also has a burden imposed upon his right to freely exercise his religion. The constitutionally protected right of the free exercise of religion is violated when a legal classification has a coercive effect upon the practice of religion without being justified by a compelling state interest. * * * As pointed out above, there are no compelling state interests advanced by Proposal C which justify the burden placed on the choice of attending a private school out of a religious conviction.” (Citations omitted; emphasis added.) 384 Mich 432-433.

When this language is considered together with the Court’s definition of "shared time”, it is clear that the Supreme Court meant that, while participation in shared time instruction could not turn on the status of the student seeking to participate, the initial decision to offer shared time instruction is discretionary with the local school district. Only after the initial decision to offer shared time instruction has been made are the constitutional strictures of equal and nondiscriminatory treatment imposed. A school district may permissibly decline to offer any shared time instruction whatsoever; however, once it chooses to offer such instruction, participation may not depend upon the particular religious or personal convictions of the individual student.

In this case, defendant has developed and implemented a policy of nonadmission to its courses to any but full-time resident students. Defendant has developed and administered its policy on a consistent and evenhanded basis. It has not denied Brenda Snyder admission to its band class because of her religious beliefs. The district has simply elected not to make its courses available to nonpublic school students. Traverse City, supra, indicates that it was within its rights to do so. Consequently, plaintiffs’ remedy is not with the courts but, rather, to elect a school board which will change the district’s policy.

Decisions of the United States Supreme Court, with which Traverse City, supra, is fully consistent, support the conclusion that defendant’s policy in no way contravenes the First and Fourteenth Amendments to the United States Constitution. In fact, these cases demonstrate that this case presents no bona fide constitutional issue.

In Norwood v Harrison, 413 US 455; 93 S Ct 2804; 37 L Ed 2d 723 (1973), the Court rejected the contention that a state’s refusal to lend free textbooks to racially discriminatory nonpublic schools constituted an invidious classification and denied equal protection simply because the parents had chosen to exercise their constitutionally protected right to send their children to nonpublic schools. Although that dispute involved racial discrimination, the Court discussed at length the implications of the First Amendment in resolving the permissible boundaries of state aid to nonpublic schools. The Court noted that, while the appellees had intimated that the state must provide assistance to private schools equivalent to that it provides to public schools,

"Clearly, the State need not. Even as to church-sponsored schools * * *, any absolute right to equal aid was negated, at least by implication, in Lemon v Kurtzman, 403 US 602; 91 S Ct 2105; 29 L Ed 2d 745 (1971).” 413 US 462.

The Court further noted that, since the religion clauses of the First Amendment strictly confine state aid to sectarian education, a state could rationally conclude as a matter of legislative policy that constitutional neutrality as to sectarian schools might be best achieved by withholding all assistance. Id.

Plaintiffs have cited Pierce v Society of Sisters, 268 US 510; 45 S Ct 571; 69 L Ed 1070 (1925), for the proposition that their constitutional right to send Brenda to a nonpublic school requires defendant to open its band classes to her. However, the Supreme Court, in Norwood, supra, 413 US 462, explicitly rejected that contention:

"In Pierce the Court affirmed the right of private schools to exist and to operate; it said nothing of any supposed right of private or parochial schools to share with public schools in state largesse, on an equal basis or otherwise. It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.”

Other courts have, in conformity with Norwood, rejected claims similar to those advocated by plaintiffs herein. In Luetkemeyer v Kaufmann, 364 F Supp 376 (WD Mo, 1973), ail’d 419 US 888; 95 S Ct 167; 42 L Ed 2d 134 (1974), the Court held that a Missouri statute which provided bus transportation to public students but not to nonpublic students did not unconstitutionally deny equal protection and due process to nonpublic school children by forcing them to forego their free exercise rights. There, the Court reiterated that Pierce did not imply that the constitution required all services which a state may decide to provide to public schools must also be provided to nonpublic schools. Similarly, the court in Cook v Griffin, 47 App Div 2d 23; 364 NYS2d 632 (1975), held that there was no equal protection violation in refusing to provide bus transportation to nonpublic school students for a field trip. In so holding, the Court noted:

"[W]e are dealing not with the question of what a school district may do but what it must do.” 47 App Div 2d 28; 364 NYS2d 637.

Norwood and its sequels compel the conclusion that the proper standard of review for defendant’s policy is not, as plaintiffs aver, the "compelling state interest” standard, but rather the "rational relationship” standard. The Luetkemeyer Court, citing McGowan v Maryland, 366 US 420; 81 S Ct 1101; 6 L Ed 2d 393 (1961), for its choice of the rational relationship standard, held that the plaintiffs were required to establish that the state decision to deny bus transportation to nonpublic school students was wholly arbitrary and capricious. Luetkemeyer, supra, 382.

In this case, defendants state that the reasons for their full-time residency policy include the fact that admission of part-time students would cause a dilution of the school program for regularly enrolled students and a disproportionate taking of scarce resources, the administrative and educational advantages in full-time attendance in a single school, and that permitting part-time admission would cause an overall decline in full-time student enrollment resulting in a decline of state aid. We agree with defendants that these reasons are rationally related to the operation of a public school district. In any event, they indicate that the district’s policy is certainly not arbitrary or capricious.

In addition, there was testimony at trial indicating that implementation of a shared time program would require extensive coordination between the Charlotte public schools and nonpublic schools, a notion which itself evokes the spectre of unconstitutionality. In Meek v Pittenger, 421 US 349; 95 S Ct 1753; 44 L Ed 2d 217 (1975), the Supreme Court stated that the continuing need for surveillance over the integration of public and nonpublic curricula and functions presented too great a potential for "entanglement”, resulting in a violation of the First Amendment. In Americans United for Separation of Church & State v Porter, 485 F Supp 432, 440 (WD Mich, 1980), the court stated that "monitoring is itself an indicator of excessive entanglement”.

The potential for excessive entanglement required by the coordination of public and nonpublic school students’ activities disposes of plaintiffs’ argument that Brenda has an unrestricted statutory right to attend courses at defendant’s schools. Although MCL 380.1147; MSA 15.41147 provides that a school district resident has a right to attend school in the district, that right is subject to the limitations of the First Amendment. Indeed, it may be argued that if plaintiff has the right to attend band classes notwithstanding defendant’s full-time residency policy, her right extends to chemistry, art, and other classes without restriction, resulting in a situation similar to that struck down in Porter, where the religious school was able to offer a full curriculum while supporting only part of it. While this Court’s decision in Citizens to Advance Public Education v State Superintendent of Public Instruction, 65 Mich App 168; 237 NW2d 232 (1975), lv den 397 Mich 854 (1976), cited by all parties to this appeal, upheld an arrangement of shared time secular educational programs operated on premises leased from nonpublic schools, the decision may well be of dubious constitutionality if the Porter analysis is followed by the federal courts. In fact, the Michigan Supreme Court anticipated the holding of Meek, supra, that extensive coordination of activities between public and nonpublic schools posed too great a potential for entanglement when it remarked in Traverse City, supra, 384 Mich 417:

"It should be needless to observe special circumstances not considered above may create unconstitutional religious entanglements, but shared time in and of itself does not.”

In sum, defendant’s policy of enrolling only full-time students in its courses does not deny to Brenda Snyder the free exercise of religion guaranteed by the First Amendment. Nor does its policy violate the Michigan Constitution of 1963, art 1, § 4, which is subject to interpretation similar to that of the First Amendment to the United States Constitution. Advisory Opinion re Constitutionality of PA 1970, No 100, 384 Mich 82; 180 NW2d 265 (1970), app dis 401 US 429; 91 S Ct 938; 28 L Ed 2d 210 (1971). Likewise, the policy does not deny Brenda the equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution and Const 1963, art 1, §2.

II. Statutory Considerations

Defendant, as a third class school district, is authorized to establish and maintain the grades, schools, and departments or courses of study it deems necessary or desirable for the maintenance and improvement of public education. MCL 380.244(a); MSA 15.4244(a). This statutory mandate is reiterated in MCL 380.1282; MSA 15.41282. Review of a school district’s actions pursuant to this grant of authority utilizes the arbitrary and capricious or abuse-of-discretion standard appropriate to administrative bodies. The presumption is in favor of the reasonableness and propriety of the board’s actions. Hiers v Detroit Superintendent of Schools, 376 Mich 225, 234-235; 136 NW2d 10 (1965). We do not believe defendant’s refusal to enroll Brenda in band class was such an abuse of discretion. This action was taken pursuant to the district’s long-standing and reasonable policy of requiring full-time enrollment in its schools.

Nevertheless, plaintiffs argue that defendant was required to enroll Brenda in band class pursuant to its statutory duties respecting "auxiliary services”. This argument is untenable, however, because band instruction is not an auxiliary service.

Local school districts are empowered by statute to provide certain auxiliary services for their students. MCL 380.1296; MSA 15.41296 provides:

"The board of a school district that provides auxiliary services specified in this section to its resident pupils in the elementary and secondary grades shall provide the same auxiliary services on an equal basis to pupils in the elementary and secondary grades at nonpublic schools. The board may use state school aid to pay for the auxiliary services. The auxiliary services shall include health and nursing services and examinations; street crossing guards services; national defense education act testing services; teacher of speech and language services; school social work services; school psychological services; teacher consultant services for handicapped pupils and other ancillary services for the handicapped; remedial reading; and other services determined by the legislature. Auxiliary services shall be provided under rules promulgated by the state board.”

As the statute indicates, the state board of education is authorized to promulgate rules governing the provision of auxiliary services. Rule 340.292 of the Michigan Administrative Code describes which services are included within the statutory authorization. These include health and nursing examinations, speech correction services and remedial reading services. Band instruction is conspicuously absent.

Auxiliary services were discussed by the Michigan Supreme Court in Traverse City, supra, 384 Mich 418-419, where it stated:

"By statutory definition and practical application, auxiliary services are special educational services designed to remedy physical and mental deficiencies of school children and provide for their physical health and safety. Functionally, they are general health and safety measures.

"Since auxiliary services are general health and welfare measures, they have only an incidental relation to the instruction of private school children. They are related to educational instruction only in that by design and purpose they seek to provide for the physical health and safety of school children, or they treat physical and mental deficiencies of school children so that such children can learn like their normal peers.”

Plaintiffs argue that the Traverse City Court did not distinguish between shared time and auxiliary services, implying that the two concepts are interchangeable. This assertion is incorrect. The language quoted above clearly indicates that the Court recognized the characteristic health and safety nature of auxiliary services. Shared time, on the other hand, includes the provision of any course which the local school district chooses to offer.

Band instruction cannot be construed to be an auxiliary service under the statute or the implementing rule. Further, the Supreme Court in Traverse City, supra, 384 Mich 420, noted that certain restrictions attend the provision of auxiliary services:

"Of course, what this Court holds regarding auxiliary-services is limited to those services enumerated in the auxiliary services act. The clause in the act which states that auxiliary services shall include 'such other services as may be determined by the legislature’ does not give the legislature a blank check to make any service a health and safety measure outside the reach of Proposal C simply by calling it an auxiliary service.”

Consequently, the argument that defendant has a statutory duty to provide band instruction to Brenda as an auxiliary service has no basis in fact or logic and is rejected.

Finally, we note briefly that plaintiffs’ claim that the trial judge demonstrated bias is meritless. In S C Gray, Inc v Ford Motor Co, 92 Mich App 789; 286 NW2d 34 (1979), this Court stated that it is presumed that a trial judge is fair and impartial, and a litigant who would challenge that has a heavy burden. Plaintiffs have not met this burden. The transcript clearly reveals that the trial judge decided this dispute on the applicable and appropriate principles of law.

III. Conclusion

Plaintiffs’ contention that the provision of auxiliary services and shared time instruction is mandatory under the Traverse City decision is simply without foundation. The Traverse City decision did not alter the board’s authority to establish attendance policies or curricula, nor did it alter the scope of the board’s discretion in providing auxiliary services. Defendant’s contention that it was not required to offer band instruction as an auxiliary service, and that it was not required to offer any shared time instruction whatsoever, is correct.

We find no violation of plaintiffs’ constitutional rights in the denial of band instruction to Brenda Snyder at the public school. Likewise, we find no statutory violation by defendant in its full-time residency policy. While defendant certainly had the discretion to offer shared time band instruction, this Court finds no authority to require defendant to do so.

The decision of the trial court is affirmed.

D. E. Holbrook, Jr., P.J., concurred.