Governor Snyder removes School Reform Office from Department of Education

Quickly after the idea was floated to political insider publications, Governor Snyder signed an executive order which will remove Michigan's School Reform Office from the Department of Education.  The constitutionality of the order has been publicly debated with the State Board of Education calling the move unconstitutional.  The timing of the order with the State Board of Education's search for a superintendent has also been discussed.  Let's unpack some of this.

The School Reform Office is charged with overseeing the state's most troubled schools.  Once the order takes effect, the office will move from the Department of Education to the Department of Technology Management and Budget.  Michigan Radio, March 12, 2015.

As an initial matter, it's worth noting this executive order differs somewhat from the President's power in the federal scheme.  While federal executive orders are self-executing, may have immediate effect, and are reviewable only by the judicial branch through the regular adversarial process, Michigan's constitution allows for the Legislature to disapprove of the order by a majority of both houses within 60 days of its enactment.  See Mich Const 1963 Art V, § 2.  The political reality of this situation is that neither house will disapprove of the order.  It will take effect.

There are plausible arguments for and against the constitutionality of the order.  In support of the order, the Governor can point to his authority under Article V, Section 2 of the Michigan Constitution to oversee and reorganize departments in the executive branch:

Subsequent to the initial allocation, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. [Mich Const 1963 Art V, § 2]

The Governor might argue that the Department of Education is merely an arm of the executive branch like any other, and he can reorganize it as he sees fit.  If this is true, he could even dissolve the Department and spread its functions throughout the executive branch.  Wayne State Law Professor Robert Sedler recently expressed this view in an article on MLive.com.  MLive.com, March 17, 2015. However, the State Board of Education likely has the stronger position.

Unlike the federal system which has just three co-equal constitutional branches of government, Michigan has more.  Most relevant here is the State Board of Education.  Just as Articles IV, V, and VI of our state constitution establishes our Legislature, Executive and Judiciary and define the contours of the authority of each of these branches, so does Article VIII define our State Board of Education:

§ 3 State board of education; duties. 

Leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith. [Mich Const 1963, Art VIII, § 3.]

If this were the end of what the constitution had to say on the matter, it would seem somewhat ambiguous. Yes, the State Board is supposed to be a co-equal branch, but the text would seem to allow for reorginization which would allow the Governor to remove its authority to actually do anything.  But the constitution says more:

Superintendent of public instruction; appointment, powers, duties. 

The state board of education shall appoint a superintendent of public instruction whose term of office shall be determined by the board. He shall be the chairman of the board without the right to vote, and shall be responsible for the execution of its policies. He shall be the principal executive officer of a state department of education which shall have powers and duties provided by law.  [Mich Const 1963, Art VIII, § 3.]

The key here is that the Department of Education is not simply an executive agency like any other, subject to the Article V powers of the Governor.  Rather the Department of Education is specifically provided for in Article VIII and under the control of the state superintendent, the department's "principal executive officer."  Further, the department's powers and duties are to be "provided by law," rather than determined by the Governor.

The Governor's spokeswoman said his motivation for the move was that he "feels like there needs to be a more proactive approach to addressing these most struggling schools, to benefit the kids that are in them."  Detroit Free Press, March 13, 2015.  Critics however noted the move came as the State Board of Education was selecting a new superintendent.  The Board is controlled 6-2 by Democrats, and one of the three finalists was Oakland Schools Superintendent Vicki Markavitch who has been an outspoken critic of the Governor's educations policies.

State Board of Education members John Austin and Cassandra Ulbrich were immediately critical of the move, questioning its constitutionality.  The board unanimously approved a statement which read in part "The State Board of Education opposes any effort to diminish the constitutional authority of either the State Board of Education or the State Superintendent,"  The Detroit News, March 17, 2015.
Mr. Austin has said the board is exploring a court challenge to the constitutionality of the order.  WKAR, March 18, 2015.