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GOP power grab — or path to better schools? Lame-duck votes could shift some Michigan education powers

Anthony Lanzilote

Lame duck lawmakers in Michigan are moving to shift some crucial decisions about education — such as closing schools, a letter grading system, and the creation of innovative districts — away from elected school officials.

The Republican lawmaker behind the legislation insists it’s not a power grab. Democrats disagree. Either way, it raises some key questions for lawmakers: Is it legal and will it do anything to improve academic achievement in a state that’s been backsliding for the past eight years? How would the shift, reported Tuesday in Bridge Magazine, play out? Chalkbeat Detroit breaks it down.

So, what is at stake?

Two education bills being considered during this year’s controversial lame-duck legislative session would establish a commission with some powers now in the hands of state education officials. Rep. Tim Kelly, the Republican from Saginaw Township who chairs the House Education Reform committee, introduced the two bills.

One bill, which Kelly says is short about a handful of votes, would require an A-F grading system for Michigan schools. The commission would develop the system, for instance determining what it means to receive an A or an F. It would also have the power to determine what happens to schools with the poorest grades, and that could include closure.

The other bill would allow for the creation of “innovation districts” — that is, local school districts with fresh ideas that could seek approval to veer from some state rules. The commission would be able to call for hearings if a district’s request to become an innovation district was denied by the state superintendent. That bill could be voted on by the state House of Representatives as soon as Thursday.

Kelly says the so-called education accountability commission would be “a fresh set of eyes,” in deciding some issues. It would comprise 13 members, each of whom would serve four-year terms. The governor would appoint seven of the members; legislative leaders and the state superintendent would appoint the other six members. These commissioners would be responsible for functions that are currently under the purview of Michigan’s education department. The governor’s power to appoint so many members is raising concerns largely for this reason. A spokesman for Gov. Rick Snyder says that if either of the bills is approved during lame-duck, the governor is prepared to make appointments before his term is up Jan. 1.

Why is that a big deal?

It would mean incoming governor Gretchen Whitmer, a Democrat, would be stuck with Snyder’s appointments for most of her four-year term.

Snyder, who has backed an A-F accountability system for Michigan schools, “is governor until noon on Jan. 1, 2019, and he intends to be working hard each and every day on initiatives to help improve Michigan until the very end,” the governor’s spokesman, Ari Adler, told Chalkbeat.

Kelly said he didn’t intend for Snyder to rush to appoint members of the commission before Whitmer takes office. First, he said, it’s unclear whether the legislation, if passed, would take effect immediately. Moreover, he doesn’t think there would be time for the governor to go through the process of appointing members of the commission.

“That’s pretty ambitious,” Kelly said.

He insisted that giving the governor seven appointees “isn’t about trying to strip power,” and said he believes that whoever is governor — Republican or Democrat — should control the majority of the commission.

It’s not sitting well with some Democrats, who already are reeling from a number of other attempts by Republicans to strip power from the incoming Democratic governor, attorney general, and secretary of state over issues related to campaign finance laws, sick leave pay, and state lawsuits.

“The lame duck session is not the time and place to do major overhaul of public education in the state,” said Casandra Ulbrich, a Democrat and co-president of the state board. “It requires thoughtful debate that doesn’t happen in a two-week time span.”

Is this legal?

Tom McMillin, a Republican member of the state education board, opposes the A-F letter grading legislation and said the commission has the potential to “fundamentally change education in Michigan,” and “supersede the authority,” of the board and the education department. For those reasons, he said, he believes it would “be a set up for a lawsuit.” Others said that could force the courts to answer whether the creation of the commission violates Michigan’s Constitution.

The state constitution gives the board “leadership and general supervision over all public education.” It further spells out that the board “shall serve as the general planning and coordinating body for all of public education … and shall advise the legislature as to the financial requirements in connection therewith.”

Meanwhile, the constitution says that the state superintendent, who is appointed by the board, should lead the education department, “which shall have powers and duties provided by law.”

That’s why Kristine Bowman, a law professor at Michigan State University, said the commission proposal raises more questions than answers, explaining: “It’s an interesting question as to the legality of this proposal. Honestly, I think there’s only one way to find out, and that’s to go to court.”

Robert Sedler, a law professor at Wayne State University, said he believes the commission would indeed violate the language of the constitution, noting: “You can’t have a commission take over the power of the state board of education. A lawsuit is very, very realistic.”

Is there a precedent for this?

The proposal comes as the makeup of the eight-member state board is changing. For the past two years, it was split evenly between Democrats and Republicans. But in November, two Democrats were elected to seats previously held by Republicans.

In 1996, then-Gov. John Engler, a Republican, issued an executive order that transferred nearly 140 responsibilities, such as the decision about whether to suspend a charter operator, from the state board to the state superintendent. This happened just as the makeup of the board was changing from an even split to Democratic control.

Meanwhile, in 2015, Snyder moved the state school reform office from the education department, beyond the governor’s control, to the state department of technology, management and budget, within the governor’s control. At the time, he said the reform office wasn’t being aggressive enough in helping chronically low-performing schools. On Snyder’s watch, the reform office announced dozens of schools could close because of low performance. But that never happened, and in 2017 Snyder moved the reform office back to the education department.

Who’s to blame for the academic decline in Michigan?

Asked whether the commission is needed in the state, Adler, Snyder’s spokesman, had this to say: “The governor has been willing to work with Rep. Kelly on his ideas to create more accountability in our education system, which is what this commission does.”

Kelly himself has made failed attempts to abolish the state board of education and blames the board and the education department for the lack of improvement in academic achievement. Michigan student performance on the National Assessment of Educational Progress, a rigorous national exam given to a representative sample of students in each state, has been declining for years, including during the period Snyder and Republicans have been in charge. The decline began in the early 2000s. Snyder became governor in 2011.

Performance on state exams has been just as troubling.

“We’re chasing (states) that are beating the pants off of us,” Kelly told Chalkbeat Detroit last week for a story about the A-F letter grade proposal. “We’re at the bottom of the barrel.”

Ulbrich said the board over the years has made numerous recommendations about legislation to adopt and, alternately, about detrimental legislation that should be rewritten. “They take no responsibility for their part of what’s happening to education in the state,” Ulbrich said. “They keep doubling down on bad policy while trying to place blame on everyone.”

A key concern for her about the prospect of a commission: “It creates a shadow state board of education that operates outside of the public purview and is not accountable to voters.”

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