State Board of Education seeks AG opinion on Gov. Whitmer's new education department

Lansing — Michigan's State Board of Education voted unanimously Tuesday to seek a formal legal opinion on whether Gov. Gretchen Whitmer's new education department violates the separation of power within the state Constitution.

The board, which has a Democratic majority, voted 8-0 in favor of pursuing an opinion from Attorney General Dana Nessel. The approved resolution specified the Michigan Constitution states "leadership and general supervision over all public education" is vested in the elected state board.

The request marked the most significant public dispute yet between Democratic leaders and Whitmer, who's a Democrat, since the party won full control over state government in the November 2022 election.

On July 12, Whitmer announced the creation of the Department of Lifelong Education, Achievement and Potential, or MiLEAP, with offices governing early childhood education, higher education and education partnerships.

Through an executive order, Whitmer transferred some of the new education department's functions from the Michigan Department of Education, which is governed by the State Board of Education and not the governor under the state constitution.

“It raises some constitutional questions," said Pamela Pugh, president of the State of Board of Education. "We know that the framers of our Constitution intentionally separated public education outside of the governor’s office.”

She added, during the board's Tuesday meeting, "We just want to make sure that this is within the state Constitution.”

In a statement, Pugh said the move to create a new state department "threatens the very essence of our education system."

"If we yield our educational system to the ever-shifting landscape of politics of the governor's office, we potentially jeopardize the integrity of an institution that holds the key to our children's aspirations," Pugh's statement said. "In an era marked by divisive rhetoric, we cannot afford to allow our schools to be potentially manipulated for political gain by future governors or face the risk of blindly trusting governor after governor to make education a real priority with a kids-first approach."

In response, Stacey LaRouche, Whitmer's press secretary, said the governor's team consulted with its attorneys at the Attorney General's office before announcing the new department.

"We are confident in our legal authority and look forward to working with everyone who is serious about providing Michigan students with a world class public education," LaRouche said.

More:Gov. Gretchen Whitmer launching new education-focused state department

Whitmer's new department will lead statewide efforts to ensure that all young children "enter kindergarten with the tools and ability to succeed in school" and that "every Michigander has the skill certificate or degree they need to prosper," according to the July 12 executive order the governor signed.

"For too long, we have thought of education as K-12, but we know that’s not good enough," Whitmer said in a statement on July 12. "I’m establishing MiLEAP today because we need to get every kid started early, in pre-K, so they succeed in kindergarten, have paths after graduation to get higher education tuition-free, and forge strong partnerships with our employers so they can get a good-paying, high-skill and in-demand job.

Whitmer's executive order creating the new education department takes effect Dec. 1.

Under the Michigan Constitution, the elected State Board of Education is the "general planning and coordinating body for all public education, including higher education." The board appoints the state superintendent of public instruction, currently Michael Rice, and governs the Michigan Department of Education.

Under the resolution approved Tuesday, the board will have Rice request an opinion from Nessel "to provide constitutional clarity."

"...(T)here appear now to be potentially two departments with overlapping authority over 'all public education,' particularly preschool public education," the resolution says.

The two Republican members of the State Board of Education had been the most critical of the new department since it was announced. Democratic members of board had previously been more reserved in their public comments.

Nikki Snyder, a GOP member of the state board, said on Tuesday, she has "major concerns about the constitutionality" of Whitmer's new department.

“I am not sure that the AG's opinion will accurately satisfy those concerns,” Snyder said.

Likewise, Tom McMillin, the other Republican member of the board and a former state legislator, said potentially, a court might have to decide the matter.

Under the Constitution, members of the State Board of Education are nominated by their parties and are elected to serve terms lasting eight years.

cmauger@detroitnews.com