Advisory Opinion Re Constitutionality of 1974 Pa 242, In re, No. 9

CourtSupreme Court of Michigan
Writing for the CourtT. G. KAVANAUGH; LEVIN; WILLIAMS
Citation394 Mich. 41,228 N.W.2d 772
Decision Date29 April 1975
Docket NumberNo. 9,J
PartiesIn re ADVISORY OPINION RE CONSTITUTIONALITY OF 1974 PA 242. an. Term 1975. 394 Mich. 41, 228 N.W.2d 772

Page 772

228 N.W.2d 772
No. 9, Jan. Term 1975.
394 Mich. 41, 228 N.W.2d 772
Supreme Court of Michigan.
April 29, 1975.

Page 773

[394 MICH 45] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George L. McCargar, Gerald F. Young, Charles F. Keeley, Asst. Attys. Gen., Lansing, in opposition to Constitutionality.

[394 MICH 46] Hubbell, Blakeslee, McCormick & Houlihan by Stuart D. Hubbell, Traverse City, for amici curiae.

Levin, Levin, Garvett & Dill by Erwin B. Ellmann, Detroit, for Mich. Ed. Ass'n, amicus curiae; Marshall W. Anstandig, Detroit, of counsel.

Masb-Masa, Douglas J. Robson, Lansing, for Mich. Ass'n of School Bds. and Mich. Ass'n of School Administrators, amici curiae.

Harold Norris, Herschel P. Fink, Elaine S. Grand, Detroit, for American Jewish Congress, Jewish Community Council of Metropolitan Detroit and Anti-Defamation League of B'Nai B'rith, amici curiae.

Before the Entire Bench.

SWAINSON, Justice (concurring in part; dissenting in part).

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 P.A. 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 N.W.2d 9 (1971).

A. The scope of the advisory opinion.

In sections I and II 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 [394 MICH 47] 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

Page 774

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 N.W.2d 9 (1971), this Court outlined the impact of Proposal C on various types of educational assistance programs. Proceeding [394 MICH 48] 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, 185 N.W.2d 9, 18. 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 programs 3 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 n. 2, Supra). [394 MICH 49] 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 N.W.2d 484, 488, 41 A.L.R.3d 742 (1970):

Page 775

'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.

[394 MICH 50] 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 in 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[394 MICH 51] its constitutionality. Traverse City School Dist. v. Attorney General, Supra, 384 Mich. 390, 406, 185 N.W.2d 9.


LEVIN, Justice.

By previous order, 1 this Court granted the request of the Senate for an advisory opinion on the constitutionality of 1974 P.A. 242, § 18(3), which provides that each school district 'shall purchase and loan or provide textbooks 2 and supplies 3 to all children of school age residing in such district and enrolled in grades 1--12.' 4

The Attorney General, at the request of this Court, has briefed both sides of the question had five amicus briefs have been submitted.

A number of issues are raised.

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We address first the scope of the issues properly before us.

The Constitution provides:

[394 MICH 52] 'Either house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date.' Const.1963,...

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