(dissenting). The majority finds it unnecessary to answer the major constitutional questions posed by the parties in this case because of its conclusion that § 1147 of the School Code of 1976, MCL 380.1 et seq.; MSA 15.4001 et seq., requires the defendant to allow plaintiff to select a band course offered by the defendant school district as a supplement to her educational program in a nonpublic school. 1 I do not agree with the majority’s conclusion that its interpretation of the School Code is not "strained.”
Having asserted that the "public schools are open to all residents of the school district who are at least five years old” the majority then posits that "[t]his statutory right ... is not conditioned upon full-time attendance.” Rather than set forth reasons for that interpretation of the statute in question, the majority then embarks on a line of reasoning that the school district could manage such a shared time program for students of nonpublic schools who wish to take part in the defendant’s program on a selective basis.
While I find it a convincing argument that it would be possible and desirable to have such a shared time program, I consider that line of rea*555soiling to be irrelevant to the question whether the Legislature in enacting § 1147 of the School Code intended to mandate such a program. The issue is not whether such a program is desirable, but whether it must be offered.
The majority states that the School Code of 1976 was intended as a recodification of existing law which contained "substantially similar language” and which had been interpreted as preventing the exclusion of "any resident because of race, color, or religious beliefs and to provide an equal right to all schools, irrespective of such distinctions.”
Since that interpretation of the language of the original statute and later acts that specifically prohibited discrimination on the basis of race, color, or creed, the Constitution of 1963 elevated that protection from such discrimination. Const 1963, art 1, § 2; art 8, § 2.
It was, therefore, unnecessary to state such nondiscriminatory language in § 1147, and that language was later dropped. Furthermore, the plaintiff does not allege that she has been denied admission to the band course because of race, color, or creed.
The majority, nevertheless, interprets the "shall have a right to attend school” language as having been violated by defendant’s denial of plaintiff’s request for selective admission even though there is no allegation that plaintiff has been treated differently from others seeking selective admission.
The question, then, is not whether the plaintiff can be denied admission as such, but whether the language of § 1147 was intended to allow a resident to select which parts of a school program he or she wishes to attend. I submit that § 1147 does not address that question.
If read literally, § 1147(1) would only extend "a right to attend school in the district,” if it was "a *556school district not maintaining a kindergarten”; and § 1147(2) would provide that in a district having a kindergarten a resident is only "entitled to enroll in kindergarten.” If it was the purpose of § 1147 to guarantee a "right to attend school,” it certainly would not have conditioned such an important right only to a district not having a kindergarten; and in a district having a kindergarten, it would not have only ensured the right to enroll in kindergarten.
Section 1147 read in its entirety is clearly intended to deal with the beginning age of students and to distinguish the starting age as between districts that have or do not have kindergarten. An attempt to make § 1147 the basis for mandating shared time not only strains that section, but in my view, tortures it.
Having posited a statutory right to attend school on a selective basis, the majority then holds "not every class offered by a public school must be made available on a shared time basis,” because the compulsory attendance laws imply that the nonpublic schools must provide a core curriculum. The majority, unconvincingly I think, then provides that to allow the nonpublic students to leave the private school for a core course would violate the compulsory attendance laws.
Earlier in its reasoning, the majority said that § 1282 and § 1300 of the School Code allowing the defendant school district "to determine public school curriculum and operating policies” could not "supersede a child’s § 1147 right to attend public school.” Having given § 1147 a preferred status over other statutes that give the defendant control over the way it offers its courses, I fail to see how the compulsory attendance law, even if it were an obstacle to taking core courses in both public and private schools, would not also be su*557perseded by the "child’s § 1147 right to attend public school.” Just because the nonpublic school must offer a core curriculum in order for its students to meet the compulsory attendance statute, it does not mean the student must take the core course at the nonpublic school. As the majority states, "[t]his statutory right to public education is not conditioned upon full-time attendance.”
Finally, the majority recognizes the several statutes that require certain public school offerings such as special education, driver training, and auxiliary services to be made available to students attending nonpublic schools. If the majority’s interpretation of § 1147 is correct, special legislative authorization for certain courses would have been unnecessary. The selective treatment of courses the Legislature intends to be offered to nonpublic school students on a mandatory basis is the best evidence that the Legislature did not, in § 1147 or any other statute, intend to mandate shared time beyond those subjects so designated.
Beginning with an argument that was not raised or argued before the trial court, the majority would first take a statute that on its face distinguishes between the beginning ages of students in kindergarten and non-kindergarten districts and convert it into a "right to attend school” statute. It would then declare the "right to attend school” equivalent to the right of a student who is receiving a "core curriculum” education at a private school to selectively attend " 'nonessential elective courses’ ” in the public school, and in passing interpret the compulsory attendance laws to prohibit shared time for core curriculum courses. The majority, thereby, not only mandates a shared time program for all of Michigan’s public school districts, but, in doing so, presumes to dictate those courses which shall or shall not be man*558dated. I find no statutory justification for such judicial intervention in educational policy making. I would conclude as did the Court of Appeals that it has not been shown that the defendants violated the plaintiff’s constitutional rights in not having a shared time program allowing her to participate in a band course on a selective basis.21 would affirm.
Ryan and Boyle, JJ., concurred with Brickley, J.This argument was raised by the plaintiffs for the first time before the Court of Appeals.
My conclusion that plaintiff is entitled to no relief is based on the statute in question and should not be construed as an endorsement of the finding of the Court of Appeals majority that there is a "potential for excessive entanglement” under the Establishment Clause in the implementation of a shared time program that would accommodate the plaintiffs’ requested relief.