(dissenting). I cannot agree with the majority’s conclusion that defendant’s policy "does not deny to Brenda Snyder the free exercise of religion guaranteed by the First Amendment”. The thrust of this argument is that defendant is not discriminating against plaintiffs because of their religious beliefs. Instead, defendant’s policy merely "evenhandedly” pre-empts Brenda from taking band instruction. The majority silently assumes that, because plaintiffs do not have to send Brenda to the parochial school, they have made their choice and must abide by it. However, plaintiffs really have no choice. They sent Brenda to the parochial school in obedience to their religious dictates. Unfortunately, this school does not offer band and defendant’s policy precludes enrolling in *72the public school band class. Therefore, defendant’s neutral policy discriminates in its application against those who exercise their right to send their children to a parochial school. The majority ignores the constitution’s clear mandate to "accommodate religion”.
Defendant’s policy undoubtedly discriminates by limiting admission to full-time public school students within the school district. The real issue is whether or not this discriminatory policy is permissible. Courts will uphold any categorization which is sufficiently justified. If the categorization involves either a suspect class or a fundamental interest, the discriminating agency must demonstrate a compelling state interest. However, where neither of these classifications is involved, the agency need only show a rational basis between the purpose and the categorization.
Plaintiffs argue that defendant’s categorization impinges on their right to freely exercise their religious beliefs. If so, a fundamental interest has been violated. Heffron v International Society for Krishna Consciousness, Inc, 452 US 650; 101 S Ct 2559; 69 L Ed 2d 298 (1981); Wooley v Maynard, 430 US 705; 97 S Ct 1428; 51 L Ed 2d 752 (1977).
However, defendant’s rule does not on its face discriminate against the exercise of religious beliefs. Instead, it discriminates between public and nonpublic students. Thus, on its face, the policy involves neither a suspect class nor a fundamental interest.
But this analysis does not end the discussion because a facially neutral rule may impermissibly discriminate in its application. Defendant is obligated to provide a minimum level of education to every student within its geographical jurisdiction. *73Const 1963, art 8, § 2. This duty would include those students now attending private and parochial schools if those schools did not exist.
However, since those schools do in fact exist does defendant have the duty to offer band instruction to those students whose parochial schools do not provide it? Defendant need not offer band instruction to anyone. However, having offered band, defendant may not discriminate against those students exercising their religious beliefs. In Widmar v Vincent, 454 US 263; 102 S Ct 269; 70 L Ed 2d 440 (1981), a university denied access for religious services to a religious group to facilities generally open to other student groups. The Supreme Court held this to be impermissible religious discrimination. However, had the facilities not been open to other clubs, the university would not have been required to open the facilities for worship services. See Trietley v Bd of Ed of the City of Buffalo, 65 App Div 2d 1; 409 NYS2d 912 (1978).
Plaintiffs correctly do not contend that defendant must show a compelling state interest for excluding all nonpublic students. In addition to students like Brenda who attend a parochial school in compliance with the dictates of their religious beliefs, nonpublic students include those who attend secular private schools and those who attend parochial schools for nonreligious reasons. Discrimination against these groups may be justified by a rational basis.
Plaintiffs do, however, contend that defendant must demonstrate a compelling state interest to discriminate against them. No one can dispute plaintiffs’ right to send Brenda to parochial school in compliance with their religious beliefs. Pierce v Society of Sisters, 268 US 510; 45 S Ct 571; 69 L *74Ed 1070 (1925). Furthermore, no one has challenged the sincerity of plaintiffs’ religious beliefs.
Our society is very diverse. For differing reasons, families send their children to parochial schools. Some believe that the state schools are not suitable for everyone. Some believe that such cultic symbols and rituals as prayer are important in a child’s life and education and that the public school system shows hostility toward these rituals by ignoring them. Others believe the public school is in fact teaching a religion — the state’s fundamental viewpoint — which is antithetical to their religious beliefs. They, therefore, exercise their right to the free expression of their religious beliefs by sending their children to schools which incorporate their religious principles in every course. Still others believe that, while a neutral education is in fact possible and may in fact be taught in the public schools, their children should be instructed according to the families’ religious views. In certain cases, for any of these reasons, the parents really have no choice but to send their children to a school giving such religious training.
Once plaintiffs have chosen to exercise this fundamental religious right, may defendant force them to choose between giving Brenda band instruction and continuing to send her to the parochial school? In essence, whether intentionally or not, defendant is denying band instruction to Brenda Snyder simply because she and her family have exercised this right. Defendant’s policy requires plaintiffs to violate their religious principles as the price for offering Brenda band instruction. Such religious discrimination, stemming from the application of a neutral rule, was soundly condemned in Sherbert v Verner, 374 US 398, 404, 406; 83 S Ct 1790; 10 L Ed 2d 965 (1963):
*75"It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial or a placing of conditions upon a benefit or privilege. * * * [T]o condition the availability of benefits upon this appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.”
There, a Seventh-Day Adventist had been fired from her work because she had refused to work on Saturday. Because she refused employment from other businesses for the same reason, she was denied unemployment benefits. Although the rule requiring employment compensation applicants to accept work on Saturday was proper, in this case it violated her First Amendment right in its application:
"Here not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” 374 US 404.
The same analysis was used in Wisconsin v Yoder, 406 US 205; 92 S Ct 1526; 32 L Ed 2d 15 (1972). There, a facially neutral compulsory school attendance law was found to violate the right of religious expression guaranteed to the Amish who believed that education for their children should cease after the sixth grade. The Supreme Court recognized that a neutral regulation could in its application offend the constitutional requirement of governmental neutrality by unduly burdening the free exercise of religious beliefs and required the state, as a condition of its neutrality toward religious beliefs, to accommodate the Amish:
*76"The Court must not ignore the danger that an exception from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise.” 406 US 220-221.
In Thomas v Review Board of the Indiana Employment Security Division, 450 US 707; 101 S Ct 1425; 67 L Ed 2d 624 (1981), the Supreme Court (with only one dissent) upheld Sherbert. There, a Jehovah’s Witness left his job because of his religious convictions after being transferred to a munitions factory. Because he refused to work there, he was denied unemployment compensation benefits. The Supreme Court held that the government had violated his right to freely exercise his religious beliefs when it imposed such a condition on him:
"[A] person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program. * * *
"Where the state conditions receipt of an important benefit upon conduct proscribed by religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” 450 US 716-718.
These cases are summed up as follows:
"For a First Amendment claim to be valid, the claimant’s theological conviction must be sincere * * *. In addition, the conviction must be founded upon religious, *77not secular beliefs. * * * If these two conditions are met, the First Amendment guarantees freedom of belief and can grant freedom to act in accordance with those beliefs. * * *
"What is required is not only an absence of discrimination, protected under other constitutional guarantees, but a constitutional obligation imposed upon secular government by the free exercise clause of the First Amendment, to 'accommodate’ religion. Zorach v Clauson, 343 US 306; 72 S Ct 679; 96 L Ed 954 (1952).” City of Sumner v First Baptist Church of Sumner, Washington, 97 Wash 2d 1; 639 P2d 1358, 1366 (1982) (Utter, J., concurring).
The majority and defendant however contend that the policy does not constitute religious discrimination. The arguments have been summed up and accepted in Thomas v Allegheny County Bd of Ed, 51 Md App 312; 443 A2d 622, 625 (1982), where the all-county music program was made available only to public school children:
"The decision to confine participation in the All-County Band to public school students does not infringe upon the private school students’ freedom of religion. The rule neither prohibits a parent from enrolling the child in a private school, nor deters the students from following the practices of their faith.”
What this argument fails to recognize is that the First Amendment encompasses religious practices in addition to beliefs. Contwell v Cannecticut, 310 US 296; 60 S Ct 900; 84 L Ed 1213; 128 ALR 1352 (1940). Furthermore, even if defendant’s policy does not directly prevent plaintiffs from practicing their religion by sending their daughter to parochial school, and even though their religious beliefs do not require them to enroll Brenda in the *78band, defendant’s policy nevertheless violates their rights to freely exercise their religious beliefs:
"It is argued that because the regulation here involved does not impact directly a fundamental tenet of the church, it does not violate a member’s First Amendment rights. Direct impact, however, has never been a requirement. It was not against a fundamental tenet of the Amish to send their children to high school; it was the incidental effects of that requirement the Amish believed to be detrimental to their faith and hence violative of their First Amendment rights. Wisconsin v Yoder, supra. It was not a fundamental tenet of the Catholic faith that unionization of teachers be disallowed; yet the Supreme Court indicated that for the National Labor Relations Board to become involved regarding parochial school teachers could pose a significant risk of infringement on the free exercise of religion. NLRB v Catholic Bishop of Chicago, 440 US 490; 99 S Ct 1313; 59 L Ed 2d 533 (1979).
"It was not a fundamental tenet of 'born again’ Christians to not allow teaching of basic education 4 hours each day; yet the pernicious though incidental effect of allowing state regulation regarding mandatory subjects and allocation of classroom time has been held to violate the free exercise clause as to that religious group. State v Whisner [47 Ohio St 2d 181; 351 NE2d 750 (1976)]. Neither is it a fundamental tenet to employ substandard teachers in a parochial school; yet it has been held that a state cannot require nonpublic teachers to have 'essentially equivalent’ qualifications to those in public schools. State v LaBarge, 134 Vt 276; 357 A2d 121 (1976).” City of Sumner v First Baptist Church of Sumner, Washington, 97 Wash 2d 1; 639 P2d 1358, 1362 (1982).
Defendant’s policy violates plaintiffs’ First Amendment rights by conditioning their right to enroll Brenda in the school band on their choosing to forego their First Amendment right to educate her in a parochial school. Defendant counters with *79Valencia v Blue Hen Conference, 476 F Supp 809 (D Del, 1979), where an unincorporated association of public high schools had excluded parochial schools from membership. In comparing the burden on the plaintiffs with the burdens imposed in Yoder and in Sherbert, the Court noted:
"The burden complained of in this case pales by comparison. * * * In light of the minimal degree of the burden imposed on the plaintiffs and the remoteness of it to the exercise of their religion, the Court seriously doubts that the defendants’ actions infringe upon any rights protected by the Free Exercise Clause.” 476 F Supp 822.
However, the issue is not simply how much plaintiffs’ rights have been burdened, but rather whether or not this burden can be sufficiently justified by the reasons advanced by defendant. Defendant’s responsibility is to be neutral in the face of religious differences. School Dist of Abington Twp, Pa v Schempp, 374 US 203, 225; 83 S Ct 1560; 10 L Ed 2d 844 (1963); Everson v Bd of Ed of Ewing Twp, 330 US 1; 67 S Ct 504; 91 L Ed 711 (1947). Student Members of the Playcrafters v Bd of Ed of Teaneck Twp, 117 NJ Super 66; 424 A2d 1192 (1981), states: "[T]he First Amendment does not mandate hostility or callous indifference to religious practices. To do so would be to prefer those who do not believe in a religion over those who do”. In addition, what may appear to one person to be a minor infringement on another’s rights may in fact be a critical infringement. No one knows what Leontyne Prices, Leonard Bern-steins, or Ira Gershwins would have been lost if their parents had been forced to make a choice like the one plaintiffs face.
Similar conditioned choices have been con*80demned in State ex rel Hughes v Kanawha County Bd of Ed, 154 W Va 107; 174 SE2d 711 (1970), app dis 403 US 944; 91 S Ct 2274; 29 L Ed 2d 854 (1971), where the school board had provided transportation only for public school students. The West Virginia Supreme Court held that this action impermissibly discriminated against parochial school students because of their religious beliefs:
"In recognition of pertinent constitutional guarantees of religious freedom, the legislature of this state has provided that, in counties in which both public and Catholic parochial primary and secondary schools are maintained, parents of Catholic children may elect to have their children attend parochial schools. The statute, we believe, merely expresses a right guaranteed by constitutional provisions.
"It is quite true that a Catholic child clearly would be aiforded school bus transportation by the mere expedient of electing to attend a public school. We are of the opinion, however, that the denial to children attending Catholic parochial schools of equal rights of bus transportation accorded to children attending public schools deprives Catholic children and their parents of their right of religious freedom in violation of the provisions of the First Amendment of the Constitution of the United States.” 154 W Va 120.
In Members of the Jamestown School Committee v Schmidt, 405 A2d 16, 21 (RI, 1979), the Rhode Island Supreme Court stated:
"Indeed, the General Assembly is merely responding to the dictates of the mandatory education law * * * by enabling all citizens to comply easily and safely with that law. See State ex rel Hughes v Bd of Ed, 154 W Va at 117; 174 SE2d at 718. In a sense, busing is a tool for enforcing the duty of compulsory education of minor children that states place upon parents. * * * The United States Supreme Court has held that parents, acting under a state compulsory-education law, may *81send their children to state-approved religious schools. * * * We would thus be fostering an anomaly if we held that the state is only obligated under [the law] to assist those parents who choose public over private schools * * *.”
In Alexander v Bartlett, 14 Mich App 177, 182; 165 NW2d 445 (1968), this Court held that providing bus transportation to parochial school children does not violate the Establishment Clause. In doing so, this Court specifically noted: "[G]iving full meaning and effect to [this law], as a whole, results in maintaining the neutrality of the government toward religion, safeguards the free exercise of religion, and prohibits the establishment of religion.”
While citing Traverse City School Dist v Attorney General, 384 Mich 390; 185 NW2d 9 (1971), the Nebraska Supreme Court stated in State ex rel School Dist of Hartington v Nebraska State Bd of Ed, 188 Neb 1, 5; 195 NW2d 161, 164 (1972), cert den 409 US 921; 93 S Ct 220; 34 L Ed 2d 182 (1972):
"It would seem that to deny a student the right to participate in a program offered by a public school district solely because that student is enrolled in a parochial school would violate that student’s right to a free exercise of religion and to equal protection of the law.”
In Epeldi v Engelking, 94 Idaho 390; 488 P2d 860 (1971), cert den 406 US 957; 92 S Ct 2058; 32 L Ed 2d 343 (1972), the court (3-2) held that providing bus transportation for parochial students violated Idaho’s Establishment Clause. However, the dissent noted:
"To deny to parochial school children the benefit of *82transportation because of the fact they choose to attend a parochial school denies them Equal Protection. The denial by such a classification is unreasonable. There is nothing ideological, sectarian or religious about a bus. All children should share the benefits of public transportation. The transportation should be provided the student, not because he attends a certain school but because he is a child within a certain classification properly created by the legislature.” 94 Idaho 400 (Mc-Quade, C.J., dissenting).1
Finally, in Traverse City School Dist v Attorney General, supra, our Supreme Court ruled that the section in Proposal C prohibiting "shared time” services to nonpublic school students was unconstitutional:
"It violates both the free exercise of religion and the equal protection provisions of the United States Constitution.
"When a private school student is denied participation in publicly funded shared time courses or auxiliary services offered at the public school because of his status as a nonpublic school student and he attends a private school out of religious conviction, he also has a burden imposed upon his right to freely exercise his religion. The constitutionally protected right of the free exercise of religion is violated when a legal classification has a coercive effect upon the practice of religion without being justified by a compelling state interest.
"In passing, it may be noted that the Attorney General in his brief argued that Sherbert is inapplicable. He pointed out 'Proposal C does not deal with religious schools as such but rather with all private schools whether sectarian or non-sectarian.’ However, the Su*83preme Court of the United States in matters of racial discrimination looks to the 'impact’ of the classification. * * * This same principle should apply to the First Amendment’s protection against religious discrimination and here with 98 percent of the private school students being in church-related schools the 'impact’ is nearly total.” 384 Mich 412, 433-434. (Footnote omitted.)
Thus, Traverse City clearly states that, on.ce a program is offered to the students in a school district, the school board may not exclude nonpublic school students merely because they have exercised their rights to freely exercise their religious beliefs by attending a parochial school.
I note that the Supreme Court also stated:
"This does not mean that a public school district must offer shared time instruction or auxiliary services; it means that if it does offer them to public school children at the public school, nonpublic school students also have a right to receive them at the public school.” 384 Mich 433.
The majority and defendant interpret this statement as forbidding discrimination between parochial and secular private school students where a school district has already elected to offer shared time services; however, the school district need not offer such services in the first place.
While a cursory reading of this language may suggest this interpretation, the essence of the opinion itself strongly contradicts it. A correct interpretation of this language depends on the definition of "shared time”. In the majority’s and defendant’s view, "shared time” is merely a course which may be offered instead of a concept of educating the public at large through the public school resources. If this interpretation were correct, then "shared time” would simply be like an *84auxiliary service which need not be offered to the public, but which, once offered, must be offered on a nondiscriminatory basis. However, because "shared time” is really a method of using school resources, it cannot be equated with such nonmandatory services. The majority’s interpretation ignores the Supreme Court’s analysis which I have been following.
Even though defendant’s policy is discriminatory, it is permissible if compelling interests support it. The majority’s and defendant’s first "compelling interest” is administrative convenience. Thomas v Allegheny County Board, supra, explained this argument:
"On the other side of the scale, it appears that the Board has a legitimate interest in confining public school programs to public students. Although the administrative impact of a decision mandating the participation of the private students into this public school program appears to us to be trivial, the precedent as it affects the broader spectrum of school administration is of a far more deleterious nature. With the opening of such 'Pandora’s box’, there would be no device to preclude, for example, a private school having difficulty securing a qualified chemistry teacher from unilaterally deciding to transport the entire student body to a nearby public school for their chemistry education. The potential for administrative disruption is obvious. Thus, while we may agree that little if any administrative hardship would inure to the Board in permitting these three students to participate in the All-County Band, it is not for this Court to hold that the Board must admit them, in view of the broader implications involved. We think the school administrators and not courts, should decide how much administrative disruption is too much.” 443 A2d 625-626.
This "floodgates” argument aside, the administra*85tive inconvenience occasioned by Brenda Snyder’s request is extremely minimal. Not only will plaintiffs provide the transportation to and from the public school, but Brenda has her own instrument. Furthermore, plaintiffs, and all others similarly situated, must accommodate themselves to defendant’s reasonable regulations. Defendant certainly has the right to require anyone applying for band to apply within a reasonable amount of time and is under no obligation to offer band instruction at a time to fit plaintiffs’ convenience.
It is, therefore, understandable that the majority focuses on the possibility of large numbers of nonpublic students demanding entrance to any course they desire. Thus the focus is on sheer numbers. While I understand this concern, I believe it to be overstated. Preliminarily, I note that if all students decided to join the public school, defendant would have to accommodate each one of them.
However, not every nonpublic student would be involved in this situation. First, the administrative inconvenience projected by defendant may well satisfy the rational basis test as to students who attend nonpublic schools for reasons other than their religious dictates. A state may inquire into the sincerity of a person’s religious beliefs. Ballard v United States, 329 US 187; 67 S Ct 261; 91 L Ed 181 (1946).
Second, one can strongly question just how sincere a parochial school’s and the parents’ religious convictions are if the parochial school unilaterally decides to drop chemistry and have its student body take it at a public school. These parents would not have been given the same coercive choice that plaintiffs have been given. Such a decision appears more to have been made out of *86convenience than out of a conviction that this particular form of religious education is necessary.
Third, as a practical matter, those students in Brenda Snyder’s position must accommodate themselves to reasonable administrative regulations and class times. This alone will limit the number of parochial students seeking admission. In addition, defendant maintains reasonable control over class size, curriculum, and budgetary matters; although defendant may not discriminate on the basis of religion, defendant is entitled to limit class size or even decide not to offer a nonmandatory class such as band where necessary. Given this situation, it is unlikely that parents of parochial students will depend solely on the public school system to provide the courses they perceive as necessary to a well-rounded education.
In addition, defendant overlooks the main reason many families send their children to parochial schools. To these families, every course is to be taught in obedience to God’s will. They have sent their children to parochial schools precisely to allow their children to be taught according to this world and life view which encompasses literature, scientific reasoning and music as well as philosophy and theology. Such people are not necessarily very likely to unilaterally drop a course like chemistry.
The majority also argues that defendant will be forced to use scarce resources if it is compelled to accept Brenda Snyder into the band. However, although everyone in the state is contributing to public education, only the public schools, and the public school children, are receiving the tax money. Would allowing Brenda Snyder into band really be disproportionate? I again note that defendant obviously would be completely obligated to *87offer all courses to her on a nondiscriminatory basis if Brenda decided to attend the public school full time.
On the other hand, the majority also argues that permitting students like Brenda Snyder to attend individual classes instead of enrolling as full-time students will encourage them to attend parochial schools, thus reducing the number of full-time students and thus also reducing state funding. However, while the First Amendment does not require defendant to encourage a student’s attending a parochial school, it does require defendant to accommodate plaintiffs’ free exercise of their beliefs. Yoder, supra. The incidental effect may be to encourage the attendance of parochial schools, but the First Amendment will not tolerate discrimination as the alternative. In addition, as I stated earlier, I do not believe that defendant’s fears would actually materialize.
The majority last argues that a contrary decision could lead to excessive entanglement. First, however, as noted above, plaintiffs must accommodate themselves to the public schools’ reasonable administrative regulations. Second, the majority ignores the fact that Michigan state courts have so far held that shared time does not violate the Establishment Clause. Traverse City, supra; Citizens to Advance Public Education v State Superintendent of Public Instruction, 65 Mich App 168; 237 NW2d 232 (1975), lv den 397 Mich 854 (1976). The majority counters with Luetkemeyer v Kaufmann, 364 F Supp 376 (WD Mo, 1973), aff'd 419 US 888; 95 S Ct 167; 42 L Ed 2d 134 (1974), which ruled that Missouri’s constitution requiring even greater separation of church and state than the United States Constitution provided the compelling state interest to allow the state to discrimi*88nate between public and nonpublic students in providing bus transportation. However, Missouri’s constitution was specifically held insufficient by the United States Supreme Court in Widmar, supra, 454 US 276; 102 S Ct 277; 70 L Ed 2d 451:
"On one hand, respondents’ First Amendment rights are entitled to special constitutional solicitude. Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of its content. * * * On the other hand, the State interest asserted here — in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution — is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State’s interest as sufficiently 'compelling’ to justify content-based discrimination against respondents’ religious speech.”
Furthermore, Michigan’s constitution does not require a greater separation of church and state; therefore, no compelling state interest has been shown. In fact, Justice White, joined by Chief Justice Burger, wrote the following dissenting opinion in Luetkemeyer:
"[T]he 'benefits of public welfare legislation’ — here a 'general program to help parents get their children * * * safely and expeditiously to and from accredited schools,’ * * * seem to be denied because certain students are seeking religious training. Without a valid interest supporting the different treatment accorded public school and parochial school students, that classification would violate federal equal protection principles. Moreover, the arbitrariness of the denial of a general public service raises the question whether the State has not become the 'adversary’ of the religion and has placed burdens on appellants’ free exercise rights.” 419 US 891.
I believe that Luetkemeyer’s precedential value is somewhat questionable.
*89I also realize that some federal cases have declared certain shared time provisions unconstitutional. E.g., Americans United for Separation of Church & State v School Dist of the City of Grand Rapids, 546 F Supp 1071 (WD Mich, 1982); Americans United for Separation of Church & State v Porter, 485 F Supp 432 (WD Mich, 1980). However, we are presently bound by our own Supreme Court’s decision that shared time does not violate the Establishment Clause. Traverse City, supra. Furthermore, the present case presents far less establishment problems than the plans reviewed in these federal cases. In addition, where the Establishment Clause conflicts with the Free Exercise Clause, the Free Exercise Clause must prevail. Resnick v East Brunswick Twp Bd of Ed, 77 NJ 88; 389 A2d 944 (1978).
If Brenda Snyder were handicapped and attended, to obtain special education necessary to live a full life, a school for the handicapped within defendant’s jurisdiction that did not offer band instruction, we would readily find that defendant would be invidiously discriminating against her if it refused to allow her to take band in a different school merely because she would not be a "full-time student” in that school, thus forcing her to choose between her special needs and musical training. See generally MCL 37.1401 et seq.; MSA 3.550(401) et seq. How is that type of discrimination any more invidious than the discrimination the majority today sanctions? The majority concludes that "plaintiffs’ remedy is not with the courts but, rather, to elect a school board which will change the district’s policy”. Why should plaintiffs be forced to wait possibly 30 years (if ever) before being able to elect a school board willing to vindicate their constitutional rights?
I would reverse and remand with instructions to enter the appropriate injunction.
The majority opinion specifically relied on Judd v Bd of Ed, 278 NY 200; 15 NE2d 576 (1938). However, Judd was overruled in Bd of Ed v Allen, 20 NY2d 109; 281 NYS2d 799; 228 NE2d 791 (1967), aff’d 392 US 236; 88 S Ct 1923; 20 L Ed 2d 1060 (1968).