368 Mass. 152

May 7, 1975 - June 12, 1975

Plymouth County


Driver education is a "course" within G. L. c. 71, Section 13, as appearing in St. 1972, c. 215, Section 1, and must be taught in a public high school if all the conditions of that section are satisfied; so construed, that section is compatible with Section 13D. [154-155]

PETITION for a writ of mandamus filed in the Superior Court on May 8, 1974.

The case was heard by Mason, J., on demurrer.

After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

P. J. Piscitelli for the petitioners.

Ira L. Lipman, City Solicitor, for the School Committee of Brockton.

WILKINS, J. The petitioners, parents of students at Brockton High School, appeal from an order which sustained the school committee's demurrer, dismissed the petition for a writ of mandamus and ordered judgment for the school committee. The petitioners sought a determination that the school committee was required to include a course in driver education in the regular curriculum at Brockton High School during the 1974-1975 school year. [Note 1]

Page 153

The petition states that in April, 1974, the parents of more than 300 Brockton High School students requested in writing of the school committee that a driver education course be offered at the high school during the school year commencing in September, 1974. The high school is attended by approximately 5,000 pupils and has several teachers qualified to teach such a course. The school committee declined to authorize such a course for the 1974-1975 school year.

Relying on G. L. c. 71, Section 13, as appearing in St. 1972, c. 215, Section 1, the petitioners argue that the school committee was obliged to offer a driver education course during the 1974-1975 school year. [Note 2] If the driver education course is a "course" within the meaning of that word in Section 13, the petitioners have alleged circumstances which require that such a course be available. The school committee contends, however, that the Legislature did not intend driver education to be among those courses whose offering could be compelled by parental mandate.

When Section 13 was adopted in its present form in 1972, the same act repealed various sections of G. L. c. 71 (old Section 13, Section 13A, Section 13B, Section 13C, Section 13E) which required high school instruction in particular foreign languages in certain circumstances. See St. 1972, c. 215, Section 2. Although

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various neighboring sections were repealed by the 1972 act, Section 13D dealing with driver education courses was not repealed. [Note 3] The school committee argues that the retention of Section 13D, giving school committees discretion to offer driver education courses, indicates that the Legislature did not intend to allow a group of parents and guardians to compel the teaching of driver education. It is contended that if driver education can be compelled under Section 13, the discretionary power of the school committee under Section 13D to decide the issue will be nullified. It is argued that Section 13 and Section 13D are compatible only if driver education courses are not included within the scope of Section 13.

In adopting Section 13 without expressly defining the word "course," while simultaneously repealing statutory provisions explicitly listing the courses which could be mandated, the Legislature must have intended that the word "course" would carry its usual meaning, viz., anything within the range of courses which have been taught in public high schools. Thus any academic subject must have been intended, as well as at least those courses which a school committee is authorized by statute to make available. Driver education, "as a phase of the safety education program in high schools" (Section 13D), is such a course.

There is no irreconcilable conflict between Section 13 and Section 13D. Under Section 13D a school committee may decide, in its discretion, to offer driver education as part of the

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school day curriculum (as Brockton allegedly had done for many prior years) or as an evening course, or it may decide to do both or neither. If the committee decides not to offer such a course as part of the regular curriculum, the parents or guardians of not less than twenty pupils may request the course under Section 13. If all conditions of Section 13 are satisfied, the course must be taught.

Order sustaining the demurrer, dismissing the

petition and ordering judgment for the respondent reversed.


[Note 1] Although the petition was entitled a "Petition for Writ of Mandamus," it did not request the issuance of a writ directing the school committee to take any action. The significant prayer of the petition sought a determination of the school committee's duties. We treat the petition as a request for a declaration of rights and duties. See G. L. c. 231A. Although such a course could not now be furnished in the 1974-1975 school year, the issues are likely to recur, and we believe it appropriate to deal with them. See Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293 , 298-299 (1975).

[Note 2] General Laws c. 71, Section 13, reads as follows: "In every public high school having not less than one hundred and fifty pupils, any course not included in the regular curriculum shall be taught if the parents or guardians of not less than twenty pupils request in writing the teaching thereof and if there is an enrollment of not less than twenty pupils, provided said request is made and said enrollment is completed before the preceding August first and provided a qualified teacher is available to teach said course. The teaching of any course as provided by this section may be discontinued if the enrollment of pupils falls below ten."

[Note 3] Section 13D, as appearing in St. 1967, c. 111, reads in part as follows: "Motor vehicle driving education may be incorporated as a phase of the safety education program in high schools of the commonwealth. The content of driver education courses shall be established by the commissioner of education in collaboration with the registrar of motor vehicles. Courses in motor vehicle driver education may be given as evening courses in the schools of any town for the training of persons under twenty-five years of age. No person shall be precluded from taking any such course because he is licensed to operate motor vehicles. School committees may fix reasonable fees for tuition in such evening courses or may provide that no fee shall be charged."