LANSING, Mich. — Attorney General Dana Nessel answered a request for an opinion on whether the governor’s Executive Order (EO) establishing the Michigan Department of Lifelong Education, Advancement, and Potential (MiLEAP) is constitutional.
Gov. Gretchen Whitmer signed the EO last month in an effort to boost the academic success of Michigan’s students.
“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,” the governor wrote at the time.
Nessel’s opinion was requested by State Superintendent Dr. Michael F. Rice on behalf of Michigan’s Board of Education, according to the Michigan Department of Attorney General.
While a formal opinion was not released, Nessel issued a letter Monday on why an opinion on MiLEAP would be premature at this time.
“At this point, the EO is not yet effective and therefore has not been implemented by MiLEAP,” Nessel writes. “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.”
As for the EO’s constitutionality, Nessel says MiLEAP is meant to collaborate with the Board of Education without overstepping boundaries.
“[T]he EO, in section 9(a), specifically states that, ‘[n]othing in this Executive Order should be construed to diminish the constitutional authority of the State Board of Education . . . .’ 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.”
Nessel adds a formal opinion may be issued at a later time but not until after the EO takes effect and the Board claims MiLEAP has undermined the Board’s authority.
“[A]fter 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. 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.”
Read Nessel’s full letter here.
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