Welling v. LIVONIA BOARD OF ED.

382 Mich. 620 (1969)

171 N.W.2d 545

WELLING v. LIVONIA BOARD OF EDUCATION. WAGSTAFF v. SAME. KURZMAN v. WATERFORD BOARD OF EDUCATION.

Calendar No. 26, Docket Nos. 52,618, 52,619.

Supreme Court of Michigan.

Decided November 6, 1969.

*623 Kenneth J. Morris and James E. McCarthy, for plaintiffs Welling and others.

Harris, Stein & Hooberman (Maurice N. Blake and Jerome Harris, of counsel), for plaintiffs Wagstaff and others.

Campbell, Lee, Kurzman & Leitman (Eugene K. Pool and Frances R. Avadenta, of counsel), for plaintiffs Kurzman and others.

Robert M. Thrun, for defendant Livonia School District.

John T. Rogers, for defendant Waterford School District.

Amicus Curiae: Michigan Education Association by Levin, Levin, Garvett & Dill.

PER CURIAM:

Plaintiffs sought mandamus or a mandatory injunction to require defendant school boards to provide a full day of instruction for all students in the Livonia and Waterford School Districts. The trial courts granted mandatory injunctions. The matters are here on our grant of by-pass of the Court of Appeals.

Mandamus or a mandatory injunction lies only to enforce the performance of a clear legal duty.

"The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law." (Const 1963, art 8, § 2).

The legislature has set up a system of free public elementary and secondary schools by enacting the provisions of the school code.

*624 "Leadership and general supervision over all public education * * * is vested in a state board of education." (Const 1963, art 8, § 3).

It is the responsibility of the State board of education to supervise the system of free public schools set up by the legislature and, as a part of that responsibility, to promulgate regulations specifying the number of hours necessary to constitute a school day for elementary school students as well as for other classifications or groupings of students, to determine the curricula and, in general, to exercise leadership and supervision over the public school system.

In the absence of rules or regulations by the State board of education, we do not find that the provisions for one-half day sessions because of lack of funds to operate on a full-day schedule or for the teaching of certain subjects on a compressed schedule constitute an abuse of discretion by the local school board.

Since no clear legal duty has been imposed upon the local school boards by the constitutionally responsible State board of education, no relief should have been granted to the plaintiffs in these cases.

Reversed. No costs, a public question being involved.

T.E. BRENNAN, C.J., and DETHMERS, KELLY, BLACK, T.M. KAVANAGH, ADAMS, and T.G. KAVANAGH, JJ., concurred.

BLACK, J. (concurring).

The controlling question in these cases is whether the length of a school day, in Michigan's "system of free public elementary and secondary schools as defined by law" (Const 1963, art 8, § 2), is determinable validly by legislation, *625 specifically by PA 1967, No 237.[1] Our answer is, "No."

An eventful transfer from the legislature to the State board of education, of overall authority to administer the aforesaid system, has been overlooked in the course of these legal proceedings. Formerly the constitutional responsibility for such administration, with duties "prescribed by law," devolved upon an elected superintendent of public instruction (Const 1908, art 11, § 2). By the Constitution of 1963, however, the framers proposed and the people adopted a new policy for administration of the system. Now the State board of education, unfettered by those qualifying words "prescribed by law" or "provided by law," is armed and charged exclusively with the power and responsibility of administering the public school system which the legislature has set up and now maintains pursuant to section 2 of the eighth article. By section 3 of the same article, the board has been directed not by the legislature but by the people to lead and superintend the system and become, exclusively, the administrative policy-maker thereof.[2] That specific directive having come from the people, the legislature may not by law interfere with its execution by the board; hence our negative answer above.

*626 The record before us discloses that the State board of education proposed, and distributed for the purposes of a public hearing conducted November 15, 1968, a suggested policy-making rule which, had it been placed in effect, would have solved all questions which the parties to these consolidated cases have briefed and argued. That rule, well within the administrative authority of the State board of education as we find, is not for this Court or any court to review either for wisdom or test as against any presently cited statute, PA 1967, No 237, expressly included.[3]

The intent of the people, exhibited as it is by the first and second paragraphs of section 3, is both plain and understandable. Our system of free public elementary and secondary schools has always required a general superintendent charged with the duties of administration, leadership, and policy-making. Once, as said above, those duties were prescribed by law. Now the people have turned the system over to the State board of education for management, administration, and superintendence. It would seem literally that both the framers of the new instrument and the people voting to adopt it foresaw the need for such management, administration, and superintendence independent of the delays that are attendant upon obtaining legislative authority in such regard. In that connection the report of December 3, 1968, made by the superintendent of public instruction to the State board with reference to the public hearing of November 15, 1968, points out significantly that "There is a need for flexibility *627 in school district scheduling throughout the State." His report pursues that thought with indicative persuasion.

We take judicial notice that it would be most difficult to administer the functions and operations of our free public school system statewide without that kind of administrative flexibility which inheres in section 3 and which the superintendent of public instruction says is needed.

In the current absence of what seems to be needful superintendence by the State board of education, so far at least as concerns the number of school days per year, hours of school days, et cetera, the defendant boards could but act according to their own discretion. We are unwilling to say or hold that their actions were illegal or unlawful, or violative of any statute the effect of which might constitute an unwitting interference, by legislation, with the administrative powers and duties which the people have vested exclusively in the State board of education.

Reversed and remanded for dismissal of each complaint, with prejudice, but without costs.

T.M. KAVANAGH, and T.G. KAVANAGH, JJ., concurred with BLACK, J.

[1] Amending CLS 1961, § 340.575 (MCLA 1969 Cum Supp § 340.575, Stat Ann 1969 Cum Supp § 15.3575). REPORTER.

[2] See the official comment which the delegates appended to section 3, upon proposal to the people of the Constitution of 1963, particularly this:

Comment. "This is a new section combining and enlarging upon the provisions in sections 2 and 6, article 11, of the present Constitution. It attempts to embody two fundamental principles: (1) the concern of all people in educational processes as a safeguard for democracy; (2) greater public participation in the operation of educational institutions.

"The enlarged state board provides a policy-making body on a state level." (Emphasis supplied.) 2 Constitutional Convention Official Record 1961, p 3396.

[3] We do not of course approve or disapprove the proposed rule, a copy of which the attorney general has attached to each of his briefs amicus. That is not our function nor that of the circuit court. We simply say that the board may lawfully adopt such a rule, or any similarly-purposed administrative rule, and may see to the due effectuation thereof.