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Nessel: Legal opinion on new education agency ‘premature’

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(The Center Square) – Michigan Attorney General Dana Nessel has said it’s too early to determine whether Gov. Gretchen Whitmer’s new education agency is legal or not.

On Aug. 8, the State Department of Education requested an attorney general legal opinion regarding the constitutionality of Whitmer’s executive order creating the Michigan Department of Lifelong Education, Advancement, and Potential.

Nessel responded in a letter, saying: “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.”

MiLEAP is an acronym for the Michigan Learning and Education Advancement Program; also, Nessel references the executive order by acronym.

In July, Whitmer penned a new government agency meant to improve education outcomes from preschool through postsecondary by establishing clear metrics, collaborating with cross-sector leaders at the local, regional, and state levels, and developing a shared action plan.

Nessel shared her thoughts on the facial constitutionality of the executive order. She wrote, “[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.”

The letter says more actions will be available when the order activates in December.

“[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,” the letter 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 emphasized 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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