State education board requests AG opinion on Whitmer’s new MiLEAP dept. ⋆

Updated, 2:30 p.m., 8/9/23

Michigan Superintendent of Instruction Michael Rice, at the instruction of the Democratic-led State Board of Education, called upon Attorney General Dana Nessel on Tuesday to issue an opinion on the constitutionality of Gov. Gretchen Whitmer’s newly created Department of Lifelong Education Advancement Potential (MiLEAP).

Whitmer, a Democrat, announced in July the new department which aims to improve educational outcomes from preschool through postsecondary instruction. 

Pamela Pugh, president of the Michigan Board of Education, launches her campaign for U.S. Senate at Comma Bookstore in Flint on May 23, 2023. (Andrew Roth/)

Board President Pamela Pugh, a Democrat, released a statement acknowledging the positive intent of Whitmer’s creation of the department, but said that she’s concerned it oversteps the constitutional boundary between the governor’s office and the Department of Education. 

“The framers of our Constitution intentionally separated public education outside of the Governor’s office,” Pugh said. “Our own history can show us how negative the impact is when similar attempts to impose a restructuring of our public education system by past governors cause more harm than good.”

Pugh expressed worry about the “ever-shifting” nature of the governor’s office, a political entity, impacting the work of the Department of Education in the future. 

“To be clear, this isn’t an attack on the great work that the Michigan Department of Education and the State Board of Education have been able to accomplish in partnership with Governor Whitmer and the current legislature, but it’s to highlight that our partnership — already enshrined in our Constitution — is an approach that works when we are strategic about our children’s futures,” Pugh said. 

Pugh is currently seeking the Democratic nomination for the soon-to-be vacant U.S. Senate seat held by Sen. Debbie Stabenow (D-Lansing)in a primary field that includes Democrats U.S. Rep. Elissa Slotkin (D-Holly), Nasser Beydoun, Zack Burns, former state Rep. Leslie Love and “The Good Doctor” actor Hill Harper. The GOP side includes Nikki Snyder, a member of the State Board of Education; attorney Alexandria Taylor, who has represented Karamo; former Berrien County Commissioner Ezra Scott; and Michael Hoover, who used to work for Dow Chemical Co.

A spokesperson for Whitmer did not immediately respond to a request for comment. 

“Governor Whitmer believes that every Michigander deserves a path to ‘make it in Michigan’ with strong, lifelong learning support. For too long, we have thought of education as just K-12, but we know students also need support in pre-K and higher education. That’s why Michigan parents, educators, and elected officials on both sides of the aisle have been making the case for years for a department, like MiLEAP, that will help students at every step of their education. Governor Whitmer listened and is the first governor to get it done,” Whitmer spokesperson Stacey LaRouche said in a statement.

“Going forward, every kid will have a solid start when they enter kindergarten, a great foundation through elementary, middle, and high school, and the support they need to get an in-demand skill or degree to get a good-paying job. We consulted with our attorneys at the Department of Attorney General. 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.”

MiLEAP, according to the governor’s office, would be led by a director that will be appointed by Whitmer. The director will become a member of the governor’s cabinet. The order goes into effect on Dec. 1.

In Michigan, the state superintendent does not report directly to the governor. According to state law, members of the state Board of Education — who are nominated by political parties and elected statewide — appoint the superintendent, who is the chairman of the board without the right to vote and is responsible for the execution of its policies. 

The board appointed Rice in May 2019.

In spite of the board’s concerns, some legal experts say the question of separation between the Governor’s office and state education entities has already been resolved by a 1999 Michigan Supreme court case, Straus v. Governor

Steven Liedel on July 11, 2022 | Allison R. Donahue

Attorney Steven Leidel, former counsel to Democratic Gov. Jennifer Granholm, said that the court’s ruling in favor of then-Gov. John Engler’s power to reorganize functions of the Department of Education gives Whitmer the same right today. Engler was a Republican.

“This is not some autonomous, independent entity,” Liedel said of the state Board of Education. “The courts have been clear that the State Board of Education only has those powers specifically provided in the Constitution, which are limited. And other powers that may be vested in the state board or the department, by state law, which the governor, like the legislature, is free to transfer elsewhere.”

Ultimately, Leidel said, legal precedent regarding governors and boards of education makes the issue of MiLEAP relatively simple and likely does not necessitate Nessel’s review.

“It’s not uncommon for the Attorney General to decline an opinion request, whether it’s from a legislator or someone else,” Liedel said. “As a courtesy to other statewide elected officials, the Attorney General might choose to provide some sort of response. But I don’t think there’s any sort of novel question of law, or any sort of legal uncertainty out there that hasn’t already been answered.”




authored by Lily Guiney
First published at

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