WILLIAMS, J.
This case requires us to revisit our recent governmental immunity decisions in Thomas v Department of State Highways, 398 Mich. 1; 247 N.W.2d 530 (1976), and McCann v Michigan, 398 Mich. 65; 247 N.W.2d 521 (1976).
I. FACTS
The case arises out of the alleged repeated homosexual attacks upon a minor student by a school principal. The question involved herein is whether the trial judge properly denied the defendant school board's motion for summary judgment based on governmental immunity.
The board moved the trial court "to enter a summary judgment of dismissal under rule 117 * * * because the plaintiffs have failed to state a claim as to this defendant upon which relief can be granted". In such motion based on GCR 1963, 117.2(1), we must examine the facts as pleaded in the light most favorable to plaintiff to determine whether plaintiff has stated the elements of a cause of action. Durant v Stahlin, 374 Mich. 82; 130 N.W.2d 910 (1964). To state an actionable claim against the state, a pleader must plead facts in the complaint in avoidance of immunity. McCann, supra, (opinion of RYAN, J. at 77).
The pertinent portions of the complaint are as follows:
"3. That at all times herein complained, defendant Arthur H. Kirkeby was an agent and employee of the Warren Consolidated Schools and, in fact, the Principal of the Hatherly Elementary School, one of the said schools comprising the said Warren Consolidated Schools.
* * *
"5. That during the entire school year of September 1972 through June 1973 on numerous and repeated occasions, in excess of 100 occasions, in fact, defendant Arthur H. Kirkeby, took plaintiff minor into the storage room into the storage room in the Hatherly Elementary School and sexually assaulted plaintiff minor, forcing said child to submit to acts of indignity and human revulsion and forcing said child to perform acts of indignity and human revulsion, all too repulsive to set forth in this pleading.
"6. That defendant Board of Education for the Warren Consolidated Schools owed a duty to the public and students to provide proper, competent, moral and capable personnel at their institutions of learning and said defendant failed so to do, and that, further, failed to supervise said personnel, failed to properly screen personnel before hiring, failed to properly investigate and evaluate said personnel, failed to overview the actions of said personnel, and, in other words, employed an incompetent, improper and immoral servant who failed to carry out the obligations and duties imposed upon the defendant school board by force of law.
"7. That as a direct and proximate result of the wrongful acts and misconduct of defendant, Arthur H. Kirkeby, and the negligent acts of defendant Warren Consolidated Schools for the Counties of Macomb and Oakland, Board of Education, suffered horrendous mental disturbances, traumatic neurosis, severe embarrassment, anxiety, hysteria, panic, humiliation, fear, shame, severe nervous reactions and depression, all of which injuries and maladies are permanent.
"8. Said injuries caused plaintiff minor to suffer severe and excruciating mental and physical pain and does and will so continue to cause him to suffer for the remainder of his life and he has been and will throughout his life be hindered and disabled from carrying on a normal life, existence or occupation and said injuries caused plaintiff minor to be placed in the care of doctors, psychiatrists, hospitals and clinics and to suffer great medical and psychiatric expenses and will so cause him to continue medical and psychiatric treatments and to incur resultant expenses for the remainder of his life."
Although the complaint is stated in one count, it appears that plaintiffs have pleaded, albeit inartfully, two separate torts against the defendant school board, each of which arose out of the alleged assaults. First, plaintiffs have alleged that the board is liable for its own negligence in failing to properly screen and supervise its personnel. Second, plaintiffs state that the board is vicariously liable for the assaults committed by its employee. For the reasons set forth below, we must measure each alleged tortious activity against the immunity standards.
II. APPLICABLE LAW
As already indicated this case requires us to revisit Thomas and McCann. Pittman v City of Taylor, 398 Mich. 41; 247 N.W.2d 512 (1976), which denied governmental immunity to a school board where a student was injured by the explosion of chemicals negligently supplied by a school teacher, is not on point. The injury there was suffered during a period when there was no applicable governmental immunity statute. In this case there is a pertinent statute, as was true in Thomas.
In Thomas, 8-9, we said:
"The legislative provision for governmental immunity is contained in MCLA 691.1407; MSA 3.996(107). This section provides:
"`Except as in this act otherwise provided, all government agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.'" (Emphasis added.)
The question in Thomas was:
"[W]hether the facts pled in this case, the death of an employee of a subcontractor who was engaged in the construction of a state highway when he was killed by falling earth when tunneling under a railroad right-of-way, deal with a `case[s] wherein the government agency is engaged in the exercise or discharge of a governmental function' as provided by statute." 8.
We concluded in Thomas "that the activity involved in this case must be regarded as a governmental function under the statute and that as a result the defense of governmental immunity is available to the State Highway Department" (emphasis added) 12. In other words the statutory test focused not upon the general type of work the department performed but upon " the activity involved in this case", the "tunneling under a railroad right-of-way" by the employee of a subcontractor in building a road.
The test was followed and developed in McCann. The question in McCann was whether a state mental hospital, some of whose employees allegedly put a newspaper publisher out of business through pressures on advertisers and subscribers, was shielded by governmental immunity from possible vicarious liability. In four opinions, seven justices concluded that neither the hospital nor the employees were immune. Four justices remanded to determine whether there was vicarious liability and three justices held there was not vicarious liability.
Justice FITZGERALD, in his opinion also signed by Justice COLEMAN and Justice LINDEMER, applied the test this way:
"We agree that the question of governmental immunity should not be considered because the complained-of activity does not fall within `the exercise or discharge of a governmental function.'" 83. (Emphasis added.)
Justice WILLIAMS in his opinion signed only by himself applied the test as follows:
"[W]e find that defendant state agency's employees were clearly engaged in ultra vires activity and were not, therefore, involved `in the exercise or discharge of a governmental function.'" 73-74.
Justice RYAN in his opinion signed only by himself stated the test as follows:
"We look to the facts pleaded in the complaint to determine whether the specific tortious activity alleged against the state or its agencies is within the protection of the immunity doctrine." (Emphasis added.) 80.
The quoted language from McCann and Thomas makes it abundantly clear that the test is not whether the governmental unit is generally "engaged in the exercise or discharge of a governmental function". The dispositive test is whether "the activity involved in this case" (Thomas), "the complained-of activity" (FITZGERALD'S McCann), or "the specific tortious activity alleged" (RYAN'S McCann) is within "the exercise or discharge of a governmental function". In short, the test of whether a governmental agency can claim immunity under the statute is whether the specific activity alleged against the governmental defendant falls within "the exercise or discharge of a governmental function".
Both parties have referred to Lovitt v Concord School District, 58 Mich. App. 593; 228 N.W.2d 479 (1975). The operative facts in Lovitt were that teacher-coaches had run a particularly severe football practice session in August heat and a student died of heat prostration. That Court held the school district superintendent and principal clothed in governmental immunity. However, that Court held that the negligence of teacher-coaches was personal and as a consequence they did not enjoy governmental immunity.
The Lovitt test is not the test set forth in Thomas and McCann and to the extent it differs it is overruled. The proper test for governmental immunity is whether the complained of activity falls within "the exercise or discharge of a governmental function".
With respect to the question of whether statutory governmental immunity extends to the employee, we find that the issue is not presented in this appeal and express no opinion.
III. APPLICATION OF LAW TO FACTS
We first address the question of whether the school board is immune from suit for its own negligence in allegedly failing to exercise due care in the hiring and supervision of Mr. Kirkeby.
We have held that the hiring of teachers by a school board in the course of providing public education is a governmental function. Daniels v Board of Education of Grand Rapids, 191 Mich. 339; 158 N.W. 23 (1916). See also Daszkiewicz v Detroit Board of Education, 301 Mich. 212; 3 N.W.2d 71 (1942). Likewise, we find that the screening, hiring and supervision of school district personnel by the board in the course of its educational function was an act "in the exercise or discharge of a governmental function". We hold, therefore, that plaintiffs have not stated an actionable claim against the board for liability for its own negligence, and summary judgment should have been granted as to that "count".
We next consider whether the school board is immune from suit with respect to the alleged tortious activity of its employee. No one will seriously argue that the intentional homosexual assault of a school principal upon a student falls within "the exercise of a governmental function". We hold it does not.
The intentional homosexual assault of a school principal upon a school boy even on school time and on school property is not the same thing as negligent tunneling in road construction as in Thomas. Rather the facts in this case are clearly analogous in principle to the facts in McCann.
In both this case and McCann a governmental agency is involved whose normal operation is "the exercise or discharge of a governmental function". However, in both cases an employee of the governmental agency engages intentionally in allegedly tortious action that bears no arguable relationship to the agency's function.
The Chief Justice and Justice LEVIN do not "believe the day to day operation of a [mental] hospital is a governmental function." 71.
IV. CONCLUSION
We hold that the trial court should have granted the defendant school board's motion for summary judgment on the question of the board's negligence, and that the trial court correctly denied the motion with respect to the alleged intentional tort. Under this disposition the matter returns to the trial court for further action not inconsistent with this opinion. McCann implies that the next question is whether vicarious liability lies against the defendant school board under the doctrine of respondeat superior. Since the issue was neither raised nor briefed, we do not here consider it.
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings not inconsistent with this opinion.
RYAN, J., concurred with WILLIAMS, J.