Will Michigan’s board of ed reassert its authority or fade into obscurity?

The Mitten Memo. A blog by Nick Krieger.

Last week, Governor Rick Snyder signed Executive Order 2015-9, moving the Office of School Reform from the Department of Education to the Department of Technology, Management, and Budget.  The Office of School Reform is charged with creating policies and procedures to improve performance in Michigan’s lowest-performing schools.

The Department of Education is managed and overseen by the State Superintendent of Public Instruction.  The state superintendent, in turn, is appointed by and accountable to the State Board of Education—a board consisting of eight members who are directly elected by the people of the State of Michigan.  The State Board of Education is presently controlled by Democrats.

Unlike the Department of Education, the Department of Technology, Management, and Budget is managed and overseen by an appointed director who serves at the pleasure of the Governor.  Thus, by transferring the Office of School Reform from the Department of Education to the Department of Technology, Management, and Budget, Governor Snyder has removed the task of school reform from an agency controlled by Democrats and placed it directly under his personal control.

Such transfers by the Governor are certainly not unprecedented.  For instance, in 1995 Governor John Engler transferred the powers of the Michigan Higher Education Assistance Authority, including its responsibility for administering state student aid programs, from the Department of Education to the Department of Treasury.  In 1999, Engler similarly transferred the authority to administer the MEAP test from the Department of Education to the Department of Treasury; he also moved career and technical education programs from the Department of Education to a brand new Department of Career Development.  In 2003, Governor Jennifer Granholm transferred the authority to administer the MEAP test back to the Department of Education; she also abolished the Department of Career Development and transferred its powers to a new Department of Labor and Economic Growth.  In 2007, Granholm then transferred most career and technical education programs from the Department of Labor and Economic Growth back to the Department of Education.

To be sure, the Michigan Constitution authorizes the Governor to reorganize the executive departments of state government and to reassign functions from one department to another by executive order.  However, the Constitution also provides that executive agencies and their respective functions “shall be grouped as far as practicable according to major purposes.”

While Democrats might have disliked Gov. Engler’s transfer of the Michigan Higher Education Assistance Authority in 1995, it is eminently reasonable to conclude that the responsibility for administering state student aid programs is one of the “major purposes” of the Department of Treasury.  After all, the State Treasurer must ultimately sign off on the expenditure of state funds.  Similarly, although the transfer of career and technical education programs was unpopular within certain circles, it is difficult to argue that the supervision of these programs did not fall within the core mission of the Department of Career Development.

But Snyder’s recent transfer of the Office of School Reform to the Department of Technology, Management, and Budget is not nearly as defensible.  Under the Michigan Constitution, the Department of Technology, Management, and Budget plays no role in the supervision of public education or the improvement of underperforming schools.  In fact, like several other minor departments of state government, it is not even mentioned in our Constitution.

Instead, Article VIII of the Michigan Constitution specifically gives the power to oversee and supervise all public schools to the State Board of Education and the State Superintendent.  In their Address to the People, the framers of the Michigan Constitution explained that although the Legislature would be charged with setting up and financing Michigan’s system of public schools, the State Board of Education would serve as the exclusive “policy-making body” for Michigan’s schools.  The Michigan Supreme Court reaffirmed this concept in 1969, ruling that the State Board of Education has the exclusive power “to supervise the system of free public schools set up by the legislature . . . , to determine the curricula and, in general, to exercise leadership and supervision over the public school system.”  The Supreme Court’s decision remains good law to this day.

The State Board of Education has the exclusive constitutional authority to supervise Michigan’s underperforming schools and to facilitate their recovery through the creation of necessary policies and procedures.  The Department of Technology, Management, and Budget does not.  However, if the State Board of Education does not reassert its constitutional powers, it will essentially disappear into oblivion.  Left unchallenged, any future governor—Republican or Democrat—will be able to sign an executive order stripping away the powers and responsibilities of the State Board of Education whenever he or she finds it politically expedient.

As previously noted, the State Board of Education is currently controlled by Democrats.  But this has not always been the case, and there will come a time when Republicans again hold a majority on the board.  If Michigan has a Democratic Governor when this happens, the same power grab will play out in reverse.

The framers of Michigan’s Constitution, and more importantly the people who ratified it, intended for the Department of Education to apply its unique educational expertise in the management and supervision of Michigan’s schools.  It defies both logic and Michigan law to suppose that a gubernatorial appointee with no educational-policy credentials should oversee the essential task of fixing Michigan’s failing schools.  Only time will tell if the members of the State Board of Education have the boldness and strength of conviction to challenge the Governor and reclaim their rightful constitutional prerogatives.

Nick Krieger is a graduate of Ludington High School, earned a bachelor’s degree from Michigan State University, and holds a law degree and master’s degree from Wayne State University Law School.  Nick works as an attorney for the Michigan Court of Appeals and owns a home in Ludington. The viewpoints expressed in The Mitten Memo are Nick’s own, and do not reflect the views of the Michigan Court of Appeals or Media Group 31 LLC and its affiliates, Mason County Press, Manistee County Press, Oceana County Press.  Contact Nick via e-mail at nickkrieger77@gmail.com or follow him on Twitter at @nckrieger.