The question presented is whether nonpublic school and home school compliance procedures, published in October, 1986, by the Department of Education pursuant to the nonpublic school act,
Clonlara, Inc., and Deborah McConnell commenced this action, seeking declaratory and injunctive relief barring the State Board of Education and the Department of Education
Clonlara and McConnell claimed that the compliance procedures constitute rules and are invalid because they were not promulgated in accordance with the APA, that the compliance procedures subject home school parents to prosecution under the compulsory attendance law
Clonlara is a private, nonreligious school that applies an alternate philosophy in the education of
Approximately five hundred families, including McConnell's family, have contracted for Clonlara's home school services. Since September, 1984, McConnell has educated her three school-age children at home with the aid of Clonlara.
During the six-month period preceding the February, 1989, hearing in the circuit court, the McConnell children attended approximately twelve hours of classes with certified teachers during eight visits to Clonlara. McConnell estimated that her children were in communication with certified teachers an average of 1.5 hours per day. This included telephone conversations with certified teachers at Clonlara and telephone and personal communication with three certified teachers who taught their children at home.
The compliance procedures were not promulgated in accordance with the APA rule-making requirements. The compliance procedures concern the collection and processing of information respecting the exercise of the department's supervisory authority under the nonpublic school act. The circumstances in which the department may institute
— by a certified teacher;
— in social studies and science classes;
— during a school year lasting at least 180 days.
The circuit judge issued a preliminary injunction that required the department to modify its information-gathering membership report form, but did not enjoin use of the compliance procedures.
After a hearing, the judge ruled that the compliance procedures were vague and arbitrary and "so shot through with problems" that it was impossible to separate those procedures that met legal requirements and standards set forth by law, and those that did not. He said that instruction of home school pupils must be provided by certified teachers, but concluded that (1) home school pupils need not receive 180 days of instruction each school year, (2) the course of study to be taught in home schools need not include social studies and science, and (3) the department could not interpret the term "instruction" as used in the nonpublic school act, because the Legislature did not define it.
The Court of Appeals affirmed on different grounds.
It has been said that "[a]n agency's authority to adopt rules is typically provided for in the statute creating the agency and vesting it with certain powers," and that "[r]ulemaking authority may also be inferred from other statutory authority granted to an agency."
In February, 1986, an assistant attorney general wrote the Superintendent of Public Instruction in response to his inquiry whether the Department of Education has the authority to promulgate rules regulating home schools pursuant to the nonpublic school act. He observed that there is no express grant of rule-making authority in the act. He said that in the sixty-five years since its enactment, the department had not promulgated any rules pursuant to the nonpublic school act. He concluded that the department does not have the authority to promulgate rules regulating home schools pursuant to the nonpublic school act.
The APA provides:
Specifically excluded from the definition of "rule" are:
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Agencies have the authority to interpret the statutes they are bound to administer and enforce.
Legislative rules have the force of law. Interpretive "rules" state an agency's interpretation of a statute. Legislative rules are enforceable in and of themselves. But an agency must rely on the underlying statute to support its reading of a statute set forth in an interpretive "rule."
* * *
The compliance procedures state in what circumstances the Department of Education will consider a home school to be violative of the nonpublic school act. The department is obliged to hold a hearing when it contends that a home school is in violation of the act's provisions.
We agree with the Court of Appeals that the board erred in construing the nonpublic school act as requiring a 180-day school year, although for reasons other than those stated in the opinion of the Court of Appeals. We disagree with the Court of Appeals, however, concerning the "social studies and science"
Clonlara and McConnell make a number of arguments that the compliance procedures are in fact legislative rules, despite the absence of statutorily delegated power to promulgate rules.
Clonlara and McConnell observe that the compliance procedures include a form that parents are required to fill out and return to their local school districts. The form is not in issue in this appeal. It is authorized by § 5 of the nonpublic school act, and was approved by this Court in Sheridan Rd
Clonlara and McConnell contend that the procedures go beyond the scope of the law and therefore are not interpretive statements under an exception set forth in § 7(g) of the APA. An interpretive statement that goes beyond the scope of the law may be challenged when it is in issue in a judicial proceeding. An interpretation not supported by the enabling act is an invalid interpretation, not a rule. Otherwise, "wrong" interpretive statements might become rules with the force of law on the false premise that they were promulgated in accordance with the APA procedures. "[B]ecause a reviewing court disagrees with an agency interpretation does not render it legislative."
Clonlara and McConnell contend that the compliance procedures are not an intergovernmental, interagency, or intra-agency memorandum under exception § 7(g) because they were distributed to the public. Communication to the public does not convert an interpretive statement into an independently enforceable rule. Rather, informing the public is one of the purposes of interpretive "rules." "Interpretive rules are statements as to what the agency thinks a statute or regulation means; they are statements issued to advise the
Further, the fact that persons may conform their behavior to the interpretations does not mean that the interpretations are legislative rules. The "pragmatic consequences" of interpretive "rules" is that they are published as "declaration[s] of the proper interpretation of the law, and those affected will normally conform, since the regulation provides a practical guide as to how the office representing the public interest in enforcing the law will apply it."
Underlying many of the arguments of Clonlara and McConnell is the sense that these procedures must be legislative rules rather than interpretive statements because they have a substantial effect. The dissent adopts this argument, and on that basis would hold that the 180-day school year requirement is invalid. The argument that substantive statements are enforceable rules when the agency has not been granted legislative authority to promulgate rules has not been followed in Michigan, and has been rejected by the federal courts.
The dissent would hold that because the 180-day school year requirement has the effect of a rule, it is an invalid rule rather than an invalid interpretation. An invalid interpretation cannot, however, become an invalid rule unless the agency is empowered to promulgate rules.
Reliance in the dissent on Michigan and federal precedent is misplaced. In all the Michigan cases relied on by the dissent, the issue was whether an agency that had been granted rule-making authority was required to comply with APA procedures.
Courts look at the substance or effect of agency action when an agency has been empowered to make rules because of the need to prevent the agency from seeking to accomplish the goals of rule making without observing the APA procedural requirements for rule making. None of the cases relied on by the dissent holds that an agency, not empowered to make rules, had promulgated an invalid rule because it had failed to follow the APA procedures.
In Detroit Base Coalition for Human Rights of Handicapped v Dep't of Social Services, 431 Mich. 172; 428 N.W.2d 355 (1988) the DSS was required
Similarly, in Farm Bureau, petitioners challenged letters of the Director of the Bureau of Workmen's Compensation, establishing new rate schedules as rules on the basis that the changes should have been promulgated under the APA. The Workers' Disability Compensation Act provided that the director, in accordance with the APA, "`may make rules not inconsistent with this act for carrying out the provisions of the act....'"
It may, indeed, be sound policy and a sound
The Department of Education is not authorized, explicitly or implicitly, to promulgate rules relating to the nonpublic school act. Consequently, action taken by the department cannot be an invalid rule. The negative implication of Davis' statement is that if substantial effect cannot give rules the force of law — and thus constitute them valid legislative rules — then substantial effect similarly cannot make them invalid rules.
We now consider whether the compliance procedures are valid interpretations of the law. This Court has said that the subsection 7(h) exception for interpretive statements must be narrowly construed "and requires that the interpretative statement
The Court of Appeals found that three of the compliance procedures were not interpretive statements under subsection 7(h) because they exceeded the scope of the nonpublic school act or were not otherwise statutorily supported.
The compliance procedures state that an instructor must have a valid teaching certificate recorded with the intermediate school district office.
Section 2 of the nonpublic schools act
School Code § 1233
Reading these four provisions in conjunction leads to the conclusions that 1) home schools are covered by the nonpublic school act because they are schools "other than a public school";
Today, in People v DeJonge (After Remand), 442 Mich. 266; 501 N.W.2d 127 (1993), this Court holds that the teacher certification requirement is unconstitutional when it infringes on a parent's First Amendment free exercise rights. And, in People v Bennett (After Remand), 442 Mich. 316; 501 N.W.2d 106 (1993), a majority of the Court sustains the constitutionality of the teacher certification requirement against a challenge claiming that the requirement is violative of substantive due process.
There is no statutory basis for the department to require that home schools have school years that last a minimum of 180 days. The 180-day requirement goes beyond the scope of the enabling statutes and is therefore an invalid interpretation.
This Court, in State Bd of Ed v Houghton Lake Community Schools, 430 Mich. 658; 425 N.W.2d 80 (1988), considered whether the State Board of Education could compel a local board of education to provide 180 days of instruction in a school year. It construed § 1284(1)
There is thus no requirement that public schools be in session 180 days. As a result, the board cannot base the 180-day school year requirement for home schools on an analogy to or comparability of public school requirements.
Nothing in the nonpublic school act indicates that nonpublic schools must be in session for 180 days. That the average school year in the state and the nation is 180 days does not support the 180-day interpretation.
The requirement that home schools teach social studies and science is supported by several statutory provisions. The compulsory attendance act requires that a nonpublic school child attend a nonpublic school "which teaches subjects comparable to those taught in the public schools to children of corresponding age and grade...."
The decision of the Court of Appeals, which held that the compliance procedures were invalid because they were not promulgated in accordance with the APA, is reversed.
The teacher certification and social studies and science requirements are valid interpretations of the relevant statutory provisions.
The 180-day school year requirement is not valid.
We make no decision concerning the correctness of any of the other compliance procedures or interpretations that were not addressed in the circuit court or the Court of Appeals or raised on appeal in this Court.
CAVANAGH, C.J., and BRICKLEY, BOYLE, and MALLETT, JJ., concurred with LEVIN, J.
RILEY, J. (concurring in part and dissenting in part).
Because I find that the Department of Education's Nonpublic School and Home School Compliance Procedure which mandates that private and home schools provide 180 days of education is an invalidly promulgated rule in violation of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., I write separately.
On October 8, 1986, defendant State Board of Education adopted guidelines entitled "Nonpublic School and Home School Compliance Procedures"
The procedures state that they were adopted by defendant on authority of law,
At issue in the instant case is the application of the APA to the procedures. The Court of Appeals held that the procedures were invalidly enacted rules in violation of the APA;
Michigan's citizens confront a monolithic and sprawling state bureaucracy touching nearly every aspect of their lives.
In Michigan, the exercise of legislative authority duly delegated to administrative agencies is referred
The extensive notice and hearing procedures mandated by the APA "`are calculated to invite public participation in the rule-making process, prevent precipitous action by the agency, prevent the adoption of rules that are illegal or that may be beyond the legislative intent, notify affected and interested persons of the existence of the rules, and make the rules readily accessible after adoption.'" Id. at 189-190, quoting Bienenfeld, Michigan Administrative Law (1st ed), § 4, p 4-1.
More important, the APA is essential to the preservation of a democratic society. Put simply, without public oversight and scrutiny of legislative action undertaken by administrative agencies, such agencies would rule without the normal safeguards of our republic. Indeed, the APA is a bulwark of liberty by ensuring that the law is promulgated by persons accountable directly to the people.
The Legislature, therefore, to ensure that the APA effectively maintains public supervision over administrative agencies, broadly defined "rule" in the APA:
Nevertheless, this Court has recognized that the broad definition of "rule" was specifically designed to "defeat the inclination of `agencies to label as "bulletins," "announcements," "guides," "interpretive bulletins," ... which, in legal operation and effect, really amount to rules....'" Coalition for Human Rights, supra at 183, quoting 1 Cooper, State Administrative Law, p 108. Acknowledging the vital importance of maintaining public control over administrative agencies and the underlying purpose of the APA, Michigan courts "have shown a strong tendency to require agencies to act pursuant to formal rules rather than through informal policies." Spruytte v Walters, 753 F.2d 498, 505 (CA 6, 1985).
Defendant maintains that because it has no rule-making authority, even though the guidelines may have substantially affected plaintiffs, at worst it misinterpreted the law and did not violate the APA. The majority agrees.
Contrary to the conclusions of the majority, I find that the guideline mandating 180 days of school is an invalid rule promulgated in violation of the APA. When an agency "does not merely interpret, but sets forth onto new substantive ground through rules that it will make binding, the agency must observe the legislative processes laid down by" the Legislature. Anthony, Interpretive rules, policy statements, guidances, manuals, and the like — Should federal agencies use them to bind the public? 41 Duke LJ 1311, 1314 (1992).
Nevertheless, the majority holds that policies that clearly contradict or extend beyond their statutory foundations are merely misinterpretations of the statute, even if they possess the effect of law. Such reasoning eviscerates the dictates of the APA. The majority incorrectly dismisses the real-world possibility that an agency without statutory authorization to promulgate rules may still attempt to issue a rule with the force of law without conforming to the APA.
Furthermore, the majority fails to inquire into the effect of the procedures at issue, and mistakenly asks only whether the 180-day requirement was legally binding.
"In general, a nonlegislative document is binding as a practical matter if the agency treats it the same way it treats a legislative rule — that is, as dispositive of the issues that it addresses — or leads the affected public to believe it will treat the document that way." Anthony, Interpretive rules, supra at 1328. See also Community Nutrition Institute v Young, 260 US App DC 294, 298-300; 818 F.2d 943 (1987). "Certain indicia that nonlegislative documents are binding in this practical sense are clearly identifiable." Anthony, Interpretive rules, supra at 1328. For example, "agency enforcement action based upon nonobservance of the nonlegislative document, or the threat of such action, bespeaks a clear intent to bind and indeed puts it into execution. Here the eating is the proof of the
In the instant case, the 180-day procedure meets the basic definition of a rule as defined in § 7 of the APA and possesses the indicia of a binding policy. The 180-day procedure is clearly "an agency regulation, statement, standard, policy, ruling, or instruction of general applicability, that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency...."
GRIFFIN, J., concurred with RILEY, J.
MCL 380.1172(1); MSA 15.41172(1). "The state board shall promulgate rules concerning personality tests, both projective and nonprojective types, administered to pupils in school districts of the state as school projects or as parts of the school programs."
MCL 380.1251(1); MSA 15.41251(1). "School psychological service is a related nonclassroom function and shall be operated under rules promulgated by the state board, which shall establish the educational and experience requirements for, and certify as qualified and issue certificates to, the personnel for the services."
MCL 380.1252; MSA 15.41252. Nursing services "shall be operated under rules promulgated by the state board which shall establish the certification requirements for registered nurses in the services."
MCL 380.1296; MSA 15.41296. Auxiliary services shall be provided under rules promulgated by the board. These "include health and nursing services and examinations; street crossing guard services; ... teacher of speech and language services."
MCL 380.1301(2); MSA 15.41301(2). "A pregnant person who is under the compulsory school age may withdraw from a regular public school program in accordance with rules promulgated by the state board."
MCL 380.1301(4); MSA 15.41301(4). "The board shall promulgate rules to implement this section," providing that a pregnant person cannot be expelled because of pregnancy and the school boards or districts can provide alternative education programs for school-age, expectant mothers and their children.
MCL 380.1531(12); MSA 15.41531(12). "The state board shall promulgate rules for the implementation of" teacher certification and qualifications.
MCL 380.1703(1); MSA 15.41703(1). "Special education personnel shall meet the qualifications and requirements of the rules promulgated by the state board."
MCL 380.1703(2); MSA 15.41703(2). Special education curriculum, eligibility, review procedures regarding placement, class and program size, equipment quantity and quality, supplies and housing, adequacy of instructional methods and length and content of the school day "shall be in accordance with rules promulgated by the state board relative to special education programs and services."
MCL 380.1741; MSA 15.41741. "An intermediate school board operating or contracting for the operation of special education programs or services may carry pupils in membership in the same manner as a local school district and shall be entitled to its proportionate share of state school aid available for these programs. Membership shall be calculated on the basis provided in rules promulgated by the state board."
Federal precedent cited by the dissent in which the agency had been granted rule-making authority include Columbia Broadcasting System, Inc v United States, 316 U.S. 407; 62 S.Ct. 1194; 86 L Ed 1563 (1942) (the FCC had been granted rule-making power), and General Motors Corp v Ruckelshaus, 239 US App DC 408; 742 F.2d 1561 (1984) (the EPA had been granted rule-making power under the Clean Air Act).
Exacerbating the tendency of agencies to ignore the APA is the infrequency of legal challenges to such rules "because the affected private parties cannot afford the cost or the delay of litigation, or because for other practical reasons they must accept a needed agency approval or benefit on whatever terms the agency sets." Id. at 1316-1317.
This Court concluded that "[t]he telephone hearing procedure has the full force and effect of law and represents an alteration or change from the rule. The department's effort to change substantially the manner in which it conducts its hearings solely through an internal policy bulletin and manual revision undermines the fundamental purpose of the APA ...." Id. at 189.