LANSING, Mich. (Michigan News Source) – Michigan Attorney General Dana Nessel has responded to the request made by State Superintendent Dr. Michael F. Rice for a formal Attorney General opinion regarding the constitutionality of Governor Gretchen Whitmer’s Executive Order (EO) creating the Michigan Department of Lifelong Education, Advancement, and Potential (MiLEAP).

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During its August 8th meeting, the State Board of Education (SBE), unanimously passed a motion directing Dr. Rice to make the request.

SBD President Pamela Pugh had said earlier about the issue, “As most people will know, by Constitution, the State Board of Education, of which I am the president, is charged with oversight of all public education. So questioning whether this is constitutionally sound, legal to do this.” She added, “The framers of our Constitution, quite frankly, wrote the Constitution in a way that our education system, public education, is separate from that of the governor’s administration and office.”

In her response letter to Dr. Rice, Attorney General Nessel states that an opinion is premature: “At this point, the EO is not yet effective and therefore has not been implemented by MiLEAP. And the Board acknowledges that, at this point, there is only the potential for overlap in the future, and no specific set of facts was provided for review.”

The Attorney General did, however, share her thoughts on the facial constitutionality of the EO by saying that it says nothing in it should be construed to diminish the constitutional authority of the State Board of Education – and therefore “the plain language of the EO indicates that it is intended to create a spirit of cooperation, coordination, and collaboration between MiLEAP and the Board that will complement the Board’s activities, while also specifically precluding MiLEAP from infringing on the Board’s constitutional authority. If that intent is honored, it creates a set of circumstances under which the EO would be valid. As a result, the EO is clearly not unconstitutional on its face.”

The AG goes on to say that after the EO becomes effective in December and MiLEAP begins to ‘implement its vision,’ there could be actions taken by MiLEAP that the Board contends infringe on its constitutional authority. Nessel says, “It is at that point, where a specific set of facts exists, that an opinion may be appropriate. Unless and until such a situation arises, however, issuing any type of opinion on potentially overlapping authority of the Board and MiLEAP is premature.”

Nessel made a point to emphasize that “this letter should not be construed as any type of opinion, as I believe that, on its face, the EO presents no constitutional concern warranting the issuance of an opinion, but I also wanted to personally respond to you and the Board with my reasons for that belief.”

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Governor Whitmer announced the formation of the new state agency, MiLEAP, on July 11, 2023. As Michigan News Source reported earlier, many have spoken out against the program including Representative Alicia St. Germain (R-Harrison Township). She called the department a “new layer of bureaucracy within Michigan’s education system.”

Under the governor’s Executive Order on July 11th, the Michigan Department of Lifelong Education, Advancement, and Potential (MiLEAP) was established and tasked with improving outcomes from preschool through post-secondary. Its responsibilities include expanding equitable access to quality, affordable programs and services and improving outcomes for all Michiganders in early learning and care and higher education. It is also charged with building partnerships beyond the classroom to improve student learning and coordinating among state departments and agencies to achieve the best outcomes for Michiganders.

MiLEAP will achieve this goal “by establishing clear metrics, collaborating with cross-sector leaders at the local, regional, and state level, and developing a shared action plan for everyone to work toward.”

To many, including the State Board of Education, the goals and policies of MiLEAP are set to go beyond constitutional limits. Whitmer’s office, however, disagrees. A spokesperson for the governor’s office released the statement, “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.”