Michigan Department of Education
FINAL REPORT AND DECISION
THE SUPERINTENDENT OF PUBLIC INSTRUCTION
In the matter of: Brighton Area Schools
Fall 2015 Pupil Membership Count
Docket No. MA 17-4
On July 28, 2017, Brighton Area Schools (Brighton) filed an appeal with Naomi Casher, assistant director of the Office of Financial Management of the Michigan Department of Education (Department), challenging the adjustment of its Fall 2015 pupil membership count related to its shared time program. On November 1, 2017, Ms. Casher granted the appeal as it related to the deduction of 3.93 FTEs for nonpublic school pupils enrolled in shared time advanced placement courses. She denied the appeal as it related to the deduction of 51.65 FTEs for other classes offered by Brighton to nonpublic school pupils. On December 1, 2017, Brighton requested final agency review by the Superintendent of Public Instruction, challenging the deduction of 51.65 FTEs.
At Brighton’s request, a review conference was convened at the Department on January 25, 2018. Present at the review conference were Robert Taylor, designee of the Superintendent of Public Instruction; Ms. Casher; Jonathan Ludwig, assistant attorney general representing Ms. Casher; Gloria Suggitt, Department auditor in the Office of Financial Management; Phil Boone, assistant director of the Department’s Office of Financial Management; Greg Gray, Brighton superintendent; Henry Vecchioni, Brighton High School principal; Jamie Dingus, Brighton shared time program director; Jennifer Starlin and Robert Dietzel of Thrun Law Firm, P.C., representing Brighton; R. Michael Hubert, Livingston Educational Service Agency (LESA) superintendent; Teresa Zigman, LESA executive director of administrative services; Ingrid Seruga, LESA pupil accounting auditor; and Mary Fielding, a Department administrative law specialist.
Consideration of this appeal is guided by several well-established principles. First, it is the Department’s responsibility to administer the distribution of state school aid funds in full compliance with all applicable statutes and administrative rules and to ensure that statutes and rules are applied uniformly to all school districts. Ithaca Public Schools (MA 16-1); Delton Kellogg Schools (MA 12-4); Galien Township School District (MA 12-1); McBain Rural Agricultural School (MA 11-1); Port Huron Area School District (MA 10-1); Parchment School District (MA 08-1). A district claiming eligibility for state school aid is obligated to demonstrate satisfaction of all legal requirements to establish such eligibility. Ithaca, supra; Delton Kellogg, supra; Life Skills Center of Pontiac (MA 12-2); Galien Township, supra; McBain, supra; Port Huron, supra; Parchment, supra; L’Anse Creuse Schools (MA 00-1); Hamtramck Public Schools (MA 94-1); Bendle Schools (MA 93-2); Coopersville Area Public Schools (MA 92-10). Applicable legal requirements are determined based on the law in effect when the pupil membership count at issue occurred. See MCL 388.1615(3) (deductions shall be calculated according to law in effect in fiscal year in which incorrect amount was paid). Absent statutory authority, the Department, which is subject to monitoring by the Auditor General, has no authority to deviate from legal requirements. Ithaca, supra; McBain, supra; Port Huron, supra; Westwood Community School District (MA 01-3); Beacon International Academy (MA 01-1); Lansing School District (MA 91-9); Orchard View Schools (MA 90-2).
Brighton challenges the procedures followed in this matter, arguing that there has been a denial of procedural due process. I find that any alleged violation of due process that occurred before this second level appeal has been cured. At this level, Brighton was on notice of the basis for the pupil membership adjustments and has had an ample, meaningful opportunity to present arguments and documentation in support of its challenge, both in writing and at the review conference. Thus, even assuming that there is a property interest at stake in this matter, there has been no denial of procedural due process rights. Galien Township School District v Department of Education (On Remand), 310 Mich App 238 (2015).
The deduction of 51.65 FTEs from Brighton’s fall 2015 pupil membership count was based on the determination that courses offered to nonpublic high school pupils on a shared time basis on the pupil membership count day were essential courses. Brighton argues that the courses were nonessential.
The disputed courses, the eight nonpublic schools in which the pupils were enrolled, and the FTE adjustments (totaling 51.65 FTEs) are as follows.
· Anatomy & Physiology
Nouvel Catholic Central High School (2.74 FTEs)
St. Catherine of Siena Academy (0.17 FTE)
Washtenaw Christian Academy (0.14 FTE)
Nouvel Catholic Central High School (1.6 FTEs)
· Current Events
Lansing Christian School (0.78 FTE)
Nouvel Catholic Central High School (1.27 FTEs)
· Forensic Science
Lansing Catholic High School (0.51 FTE)
Nouvel Catholic Central High School (2.06 FTEs)
St. Catherine of Siena Academy (0.17 FTE)
Nouvel Catholic Central High School (1.71 FTEs)
Lansing Catholic High School (0.17 FTE)
Lansing Catholic High School (2.38 FTEs)
Nouvel Catholic Central High School (1.71 FTEs)
Lansing Catholic High School (0.17 FTE)
Nouvel Catholic Central High School (3.15 FTEs)
Southfield Christian School (2.94 FTEs)
St. Catherine of Siena Academy (0.51 FTE)
Brother Rice High School (9.76 FTEs)
Notre Dame Preparatory/Marist Academy (2.35 FTEs)
Lansing Catholic High School (9.74 FTEs)
Nouvel Catholic Central High School (1.71 FTEs)
Southfield Christian School (2.2 FTEs)
· Veterinary Science
Nouvel Catholic Central High School (3.71 FTEs) (Tab 2(B))
The threshold issue here is what constituted a core or essential course on the fall 2015 pupil membership count day for the purpose of determining whether Brighton could offer these courses to nonpublic school pupils without infringing on constitutional or other legal authority regarding the use of public moneys to fund nonpublic school education. A review of judicial and administrative decisions, statutory provisions, an administrative rule, and the Pupil Accounting Manual discloses how this issue has been addressed in Michigan and the state of the law at the time of the pupil membership count at issue in this case.
Snyder v Charlotte Public School District
The seminal Michigan Supreme Court case is Snyder v Charlotte Public School District, 421 Mich 517 (1985), where the Court considered Charlotte Public School District’s refusal to allow a resident nonpublic school pupil to enroll as a part-time pupil in the band course that was offered to full-time Charlotte Public School District pupils. The pupil involved in that case was enrolled in Charlotte Christian Academy, a private nondenominational school that did not offer a band course. Citing MCL 380.1147 (school-age child has right to attend public school in district of residence) and MCL 380.1561(3)(a) (compulsory public school attendance not required for child attending state approved nonpublic school that teaches subjects comparable to those taught in public school to children of corresponding age and grade, as determined by public schools of district where nonpublic school is located), the Court found that the involved nonpublic pupil was entitled to enroll in the Charlotte Public School District’s band course. In its discussion of shared time programs, the Court emphasized the limited nature of its holding.
However, not every class offered by a public school must be made available on a shared time basis. In order to meet the compulsory attendance laws, a nonpublic school child must attend “a state approved nonpublic school, which teaches subjects comparable to those taught in the public schools to children of corresponding age and grade
. . . .” MCL 380.1561(3)(a); MSA 15.41561(3)(a). This implies that the nonpublic school must provide a “core curriculum” for its students, such as basic reading, mathematics, writing, English, etc. If shared time instruction were required for all courses, it would be possible for a nonpublic school to offer a full curriculum
to its students while conducting only a small percentage of the classes at the nonpublic school. This would thwart the Legislature’s requirement that nonpublic and public schools offer comparable basic education to their respective students. More importantly, if public schools can be required to satisfy in any way a parochial school’s statutory responsibility to provide a core curriculum to
its students, this might constitute impermissible direct
aid to the parochial school, rather than legitimate aid to the students which incidentally benefits the parochial school. . .
Section 1561(3)(a) does not require that the nonpublic schools offer identical courses of instruction. If this were so, shared time would not be necessary. Thus, “nonessential elective courses,” such as band, art, domestic science, shop, advanced math, and science classes, etc., need not be taught in nonpublic schools. These are the types of courses that have traditionally been offered on a shared time basis. Thus, once these types of courses are offered to public school students in the district, they must also be offered to resident nonpublic school students. 421 Mich at 539-540. (Emphasis in original.)
Decisions of the Superintendent of Public Instruction
In 1996, the Superintendent of Public Instruction considered the 1993-1994 pupil membership count of Greenville Public Schools. Greenville Public Schools (MA 94-3). The disputed memberships in that case represented nonpublic school seventh and eighth grade pupils who were enrolled part-time in basic math and basic science classes at Greenville Public Schools. The local parochial school in which the pupils were otherwise enrolled offered no math or science courses to its seventh and eighth grade pupils, all of whom therefore enrolled in Greenville Public Schools for such instruction. Citing Snyder, the Superintendent upheld the disallowance of the memberships based on the undisputed nature of the involved courses as essential courses.
In Wyandotte School District (MA 96-7), the Superintendent of Public Instruction considered the shared time program involved in the reduction of the 1994-1995 pupil membership count of Wyandotte School District. That dispute involved part-time memberships claimed for elementary pupils who were otherwise enrolled in a parochial school. Wyandotte School District provided all of the pupils enrolled in the nonpublic school with science instruction in a Wyandotte School District facility. The same material was available to all Wyandotte School District pupils. Wyandotte School District described the instruction as an enrichment program that provided hands-on and advanced science experience. The nonpublic school also offered science instruction. Reversing the FTE adjustment, the Superintendent of Public Instruction rejected the Department’s argument that any science instruction constitutes part of a core curriculum and that therefore any memberships claimed for nonpublic school pupils receiving science instruction are not allowed.
The Department contends that science is a core course which St. Stanislaus was obliged to provide to its pupils under MCL 380.1561; MSA 15.41561. Relying on a 1993 Departmental statement and on Snyder v Charlotte Public Schools, 421 Mich 517; 365 NW2d 151 (1984), the Department maintains that any science instruction, whether it is deemed enrichment or not, constitutes part of the core curriculum and, therefore, the State may not fund nonpublic school students’ participation in it. I do not read Snyder so restrictively, however.
Here, it is clear that the nonpublic school had a science curriculum in place and provided instruction in that subject. This fact serves to distinguish this case from the result reached in Greenville [supra]. Moreover, since it appears that the instruction provided at the public school extended beyond the basic curriculum offered there as well, I am persuaded that this instruction was noncore and nonessential.
In a footnote, the Superintendent further observed, “It would be indisputably clear that this course of study would fit the requirements of Snyder if it had been an elective class.”
In East Detroit Public Schools (MA 93-6), the Superintendent of Public Instruction found that neither the State School Aid Act, the Pupil Accounting Manual, nor Snyder prohibited the offering of enrichment courses to nonpublic school students for membership purposes. The Superintendent concluded that Snyder’s definition of nonessential classes included the enrichment classes offered by East Detroit for elementary students, including Science, Art, Crafts, Computers, German, Home Economics, Creative Movement, Aerobics, Story Hour, and Band.
Thus, the three published decisions of the Department that have addressed the issue of what constitutes a permissible shared time course establish the general principle that a school district may not claim in its membership nonpublic pupils enrolled part-time at the district in essential instruction, as described in Snyder. The decisions further established that a school district may claim in its membership nonpublic pupils enrolled part-time in enrichment or advanced courses at the district that are in addition to essential instruction provided at the nonpublic school and that are also offered to the district’s full-time pupils.
Revised School Code
Section 1278 was added to the Revised School Code by 1990 PA 25. MCL 380.1278. The section required public schools to establish and provide a core curriculum and it required the State Board of Education to develop a model core curriculum and to share that model with nonpublic schools. Since its enactment, section 1278 has provided that school districts may supplement their core curricula with additional classes and programs. MCL 380.1278(4). Since 1990, section 1278 has included a requirement that school districts continue to offer in shared time programs courses that were considered nonessential under Snyder. MCL 380.1278(9).
State School Aid Act
Section 166b of the State School Aid Act, MCL 388.1766b, has addressed shared time programs since 1993. 1993 PA 175. At the time of the pupil membership count at issue in this appeal, the statute provided in part as follows.
(1) This act does not prohibit a parent or legal guardian of a minor who is enrolled in any of grades kindergarten to 12 in a nonpublic school or who is being home‑schooled from also enrolling the minor in a district, public school academy, or intermediate district in any curricular offering that is provided by the district, public school academy, or intermediate district at a public school site and is available to pupils in the minor’s grade level or age group, subject to compliance with the same requirements that apply to a full‑time pupil’s participation in the offering. However, state school aid shall be provided under this act for a minor enrolled as described in this subsection only for curricular offerings that are offered to full‑time pupils in the minor’s grade level or age group during regularly scheduled school hours.
(2) This act does not prohibit a parent or legal guardian of a minor who is enrolled in any of grades kindergarten to 12 in a nonpublic school or who resides within the district and is being home‑schooled from also enrolling the minor in the district in a curricular offering being provided by the district at the nonpublic school site. However, state school aid shall be provided under this act for a minor enrolled as described in this subsection only if all of the following apply:
* * *[]
(c) The instruction is scheduled to occur during the regular school day.
(d) The instruction is provided directly by a certified teacher at the district or public school academy or at an intermediate district.
(e) The curricular offering is also available to full‑time pupils in the minor’s grade level or age group in the district or public school academy during the regular school day at a public school site.
(f) The curricular offering is restricted to nonessential elective courses for pupils in grades kindergarten to 12.
(3) A minor enrolled as described in this section is a part‑time pupil for purposes of state school aid under this act.
The Department’s administrative rules did not address the essential versus nonessential course issue until 2008, when the following subrule was added to the rule set governing school district pupil accounting for distribution of state aid.
A nonpublic or home school pupil may enroll in nonessential elective courses in grades 1 to 12 in a district and be counted for the purposes of membership on a pro-rata basis pursuant to section 166b of 1979 PA 94, MCL 388.1766b. All of the following apply:
(a) Nonessential elective courses include, but are not limited to, band, art, music, drama, computer technology, life skills, career and technical education, physical education, driver's education and advanced placement level courses. A district shall not enroll a nonpublic or home school pupil in essential courses.
(b) Essential courses include, but are not limited to mathematics, reading, English, social studies, science, writing, the constitution of the United States, the constitution of the state of Michigan, and the history and present form of civil government of the United States, the state of Michigan, and the political subdivisions and municipalities of the state of Michigan.
(c) For membership purposes, a nonpublic or home school pupil may enroll in a special education resource and categorical program classroom that provides support and not core curriculum. Mich Admin Code, R 340.2(20)
According to the February 7, 2008 summary prepared by the Department when amendments to Rule 340.2 were proposed, one purpose of the amendments was to align with the Pupil Accounting Manual. In addition, in response to public comments about this subrule during the rulemaking process, the Department stated, “The definition is consistent with [Snyder].” (Agency Report to the Joint Committee on Administrative Rules, Attachment A, Summary of Public Comments dated May 1, 2008 (State Office of Administrative Hearings and Rules No. 2007-062 ED)). Rule 340.2(20) has not been amended since its promulgation.
Pupil Accounting Manual
The issue of essential versus nonessential courses for shared time purposes was not addressed in the Department’s Pupil Accounting Manual until the late 1990s. (Pupil Accounting Manual, section 5 (Rev April 1999)). Section 5E of the 2015-2016 edition of the Pupil Accounting Manual, which was in effect at the time of the pupil membership count at issue in this appeal, provided that a school district could count in membership nonpublic and home school pupils enrolled in a course only if, in addition to satisfaction of other requirements, the curricular offering was restricted to nonessential elective courses. The manual discussed essential and nonessential courses in terms of the “subject areas” of the courses. According to the manual (page 5-E-3):
Eligible Courses are nonessential electives in the subject areas of physical education, art, foreign language, music, driver’s education, and computer science unless a district has developed graduation requirements that deem a course in one of the named subject areas otherwise. In addition to courses in these subject areas, courses that are part of a career and technical education program, and those that are advanced placement are considered nonessential electives.
Ineligible courses are those in subject areas that are considered essential curriculum pursuant to the Snyder v. Charlotte court case. These subject areas include mathematics, reading, English, social studies, science, writing, the Constitution of the United States, the Constitution of the State of Michigan, and the history and present form of civil government of the United States, the State of Michigan, and the political subdivisions and municipalities of the State of Michigan. Remedial courses are also ineligible under this section, such as those provided as part of an English as a second language program (ESL).
Section 5E cited not only Snyder but also Rule 340.2(20) as supporting authority. (Page 5-E-4).
It is settled that an administrative agency promulgates law through rulemaking or through adjudication. AFSCME, Council 25 v Wayne County, 152 Mich App 87, 98 (1986), lv den 426 Mich 874 (1986). In this case, I find that the decisions of the Superintendent of Public Instruction in Greenville, supra, Wyandotte, supra, and East Detroit, supra, correctly interpreted and applied Snyder, supra, in allowing a school district to claim membership for nonpublic school pupils enrolled in nonessential courses, including enrichment or advanced courses, that are in addition to essential instruction provided at the nonpublic school. I further find that Rule 340.2(20) is to be interpreted to align with that authority. The rule includes expressly nonexclusive lists of “nonessential elective courses” and “essential courses” and it does not clearly contradict the precedent established by the earlier Superintendent decisions. To adhere to those precedential decisions and to the Supreme Court’s binding precedent on which they relied, I interpret the rule’s references to “essential courses” as referring to courses that provide basic instruction in the subject areas listed in the rule. Courses that generally go beyond basic instruction are considered nonessential and thus allowable in shared time programs.
Similarly, I find that interpretation of the 2015-2016 Pupil Accounting Manual to prohibit membership for any instruction of nonpublic school pupils in the general subject areas of mathematics, English language arts, social studies, and science, runs counter to the holdings of Greenville, Wyandotte, and East Detroit, and contradicts the intent of the manual to align with Snyder. In my judgment, to conform with binding precedent, Section 5E of that edition of the manual must be interpreted to align with Rule 340.2(20) as I have interpreted it above.
In this case, it is not disputed that the involved pupils received basic instruction in all subject areas described in Rule 340.2(20)(b) at their nonpublic schools. Nor is it disputed that the nonpublic schools provided instruction in subjects comparable to those taught in the public schools to children of corresponding age and grade as required by MCL 380.1561(3)(a). Each of the involved nonpublic schools was approved by the Department. The approval process required each school to attest that it offered English (and reading), mathematics, social studies, and science in kindergarten through twelfth grade in addition to the instruction required by MCL 380.1166(1) about the United States and Michigan constitutions and the history and present form of civil government of the United States, Michigan, and Michigan political subdivisions and municipalities.
Examination of the disputed shared time courses in light of Brighton’s curriculum leads me to the following conclusions, keeping in mind that MCL 388.1766b required that nonpublic school pupils enrolled part-time in Brighton’s shared time program were countable in membership only for courses that were offered to full-time Brighton pupils in the same grade levels as the nonpublic school pupils and only if the nonpublic school pupils satisfied the same requirements that applied to full-time Brighton pupils enrolled in the courses.
For these reasons, I reverse the state aid adjustments that are based on nonpublic school pupils’ enrollment on the Fall 2015 pupil membership count day as follows (Tab 2(B)): Anatomy & Physiology (2.74 FTEs), Archaeology (0.14 FTE), Anthropology (0.17 FTE), Botany (1.6 FTEs), Current Events (1.79 FTEs), Forensic Science (2.74 FTEs), Oceanography (0.17 FTE), Psychology (4.09 FTEs), Sociology (6.77 FTEs), Speech (25.76 FTEs), and Veterinary Science (3.71 FTEs), for a total of 49.68 FTEs; I affirm the state aid adjustment that is based on nonpublic school pupils’ enrollment in Geography on the Fall 2015 pupil membership count day (1.71 FTEs); and I affirm the state aid adjustment that is based on two Lansing Christian School pupils’ enrollment in Current Events on the Fall 2015 pupil membership count day (0.26 FTE).
Based on my review of this matter and for the above reasons, I affirm in part and deny in part Brighton Area Schools’ appeal of the first level agency decision that affirmed the reduction of Brighton Area Schools’ Fall 2015 pupil membership count by 51.65 FTEs.
I hereby affirm the reduction of Brighton Area Schools’ Fall 2015 pupil membership count by 1.97 FTEs and I reverse the reduction of Brighton Area Schools’ Fall 2015 pupil membership count by 49.68 FTEs.
This final decision and order is being transmitted to the Office of Financial Management – State Aid and School Finance for implementation.
Interim Superintendent of Public Instruction
Dated: December 4, 2018
 Referenced documents are attached to Brighton’s December 1, 2017 appeal.
 In this decision, I use the terms “core” and “essential” interchangeably as the Supreme Court did in Snyder v Charlotte Public School District, 421 Mich 517 (1985).
 MCL 388.1766b(2)(a) and (b) set forth requirements related to shared time services at nonpublic school sites. In the instant case, neither Ms. Suggitt, the LESA auditor, nor Ms. Casher raised any concerns related to those requirements. I therefore do not address them in this decision.
 Effective October 1, 2016, 2016 PA 249 added a subsection to section 166b directing the Department to establish a workgroup “to examine the issue of providing a uniform definition of nonessential elective courses, and also to provide a uniform definition of a part-time pupil for the purposes of” the section. MCL 388.1766b(5). Following submission of the workgroup’s proposals, section 166b was amended by 2017 PA 108, effective October 1, 2017, to include definitions of nonessential courses.
(3) A nonessential course in grades kindergarten to 8 is a course other than mathematics, science, social studies, and English Language arts. Nonessential courses in grades 9 to 12 are those other than algebra 1, algebra 2, English 9-12, geometry, biology, chemistry, physics, economics, geography, American history, world history, the Constitution, government, and civics, or courses that fulfill the same credit requirement as these courses. Nonessential elective courses include courses offered by the local district for high school credit that are also capable of generating postsecondary credit, including, at least, advanced placement and international baccalaureate courses. College level courses taken by high school students for college credit are nonessential courses. Remedial courses for any grade in the above-listed essential courses are considered essential.
2017 PA 108 retained the requirement that shared time courses be offered to full-time pupils but deleted the requirement that the courses be offered to those pupils during the regular school day. 2017 PA 143, effective November 2, 2017, specified that kindergarten is considered nonessential and changed the definition of nonessential course for grades 1 to 8 to “a course other than a mathematics, science, social studies, and English language arts course required by the district for grade progression.” MCL 388.1766b(3). Further amendments to MCL 388.1766b took effect on October 1, 2018. 2018 PA 265.
None of these revisions to section 166b applies to this case. As noted above, MCL 388.1615 provides that a deduction shall be calculated according to the law in effect in the fiscal year in which the incorrect amount was paid.
 In 2007-2008, Section 5E of the Pupil Accounting Manual provided in relevant part as follows.
Examples of nonessential elective courses include band, art, computers, life skills, career and technical education, vocational education, physical education, driver’s education, and advanced placement courses. . .Courses that are considered essential to a pupil’s curriculum (pursuant to the Snyder v Charlotte court case), and thus are not eligible, include mathematics, reading, English, social studies, science, writing, the Constitution of the United States, the Constitution of the State of Michigan, and the history and present form of civil government of the Unites States, the State of Michigan, and the political subdivisions and municipalities of the State of Michigan. (Emphasis in original.)
 I emphasize that my holding is not intended to disparage the work of the auditors at the LESA and the Department who in good faith relied on alternative interpretations of the administrative rule and Pupil Accounting Manual.
 Although Brighton’s curricular requirements were generally defined in terms of what courses were statutorily required for graduation (MCL 380.1278a and 380.1278b), any course that was considered nonessential under Snyder, even if required for graduation, cannot be considered essential for purposes of MCL 388.1766b. For example, in accordance with MCL 380.1278a(1)(a)(iv), Brighton required 1 credit in visual, performing, or applied arts for graduation. Under Snyder, art and band are nonessential courses. See MCL 380.1278(9).
 Because Brighton failed to establish that it offered the Geography course during the regular school day to its full-time pupils, it is not necessary to address the issue of whether Geography was an essential course that was not allowable in the shared time program.