Nick Krieger (@nckrieger):
With more and more problems coming to light in the Detroit Public Schools every week, many people have inquired about Michigan's emergency manager law, how it works, and why it exists at all. In this post, I attempt to answer some of the more commonly asked questions.
HOW DID WE GET HERE:
In late 2008, Michigan’s Superintendent of Public Instruction determined that a financial emergency existed within the Detroit Public Schools (DPS). In accordance with Michigan’s then-existing emergency manager law, the former 1990 PA 72, Governor Jennifer Granholm appointed Robert Bobb to serve as the emergency manager of DPS.
The Michigan Legislature subsequently enacted the Local Government and School District Fiscal Accountability Act, 2011 PA 4, which repealed and replaced the provisions of 1990 PA 72. In May 2011, Governor Rick Snyder appointed Roy Roberts to succeed Bobb as the DPS emergency manager. Governor Snyder reappointed Roberts in March 2012, and his reappointment became effective in April 2012.
Meanwhile, petitions seeking a referendum on 2011 PA 4 were filed with the Secretary of State. By a 2-2 vote, the Board of State Canvassers initially refused to certify the petitions. However, the Michigan Supreme Court subsequently ordered the Board of State Canvassers to certify the petitions and submit the matter to the voters. On August 8, 2012, in compliance with the Court’s order, the Board of State Canvassers certified the petitions and voted to put the referendum on the November 6, 2012, general election ballot.
At the general election of November 6, 2012, the electors rejected the Local Government and School District Fiscal Accountability Act. The statute was thereby repealed.
But this did not deter the Legislature. Almost immediately, the Legislature enacted a new emergency manager law known as the Local Financial Stability and Choice Act, 2012 PA 436, effective March 28, 2013. This is the emergency manager law that exists in Michigan today.
In July 2013, in accordance with the new emergency manager law, Governor Snyder appointed Jack Martin to succeed Roberts as DPS emergency manager. Thereafter, in January 2015, Governor Snyder appointed Darnell Earley, the former Flint emergency manager, to replace Martin as emergency manager of DPS.
At present, the emergency manager has nearly absolute control over DPS. The emergency manager is empowered to exercise all the powers once held by the superintendent and elected board of education. Indeed, the powers of the superintendent and elected school board are suspended during the pendency of the declared financial emergency.
As soon as a financial emergency was declared for the Detroit schools, DPS entered into a state of “receivership” under Michigan law. During the receivership, the emergency manager may exercise all powers that he deems necessary to operate DPS. The emergency manager is now the only individual empowered to make education policy for DPS, hire and fire employees, enter into contracts, close buildings, sell assets, implement curricular decisions, set salaries, appoint administrators, and so on. The emergency manager’s authority is vast, and includes any power that may be necessary to carry out the purposes of the emergency manager law.
The elected Detroit Public Schools board of education may not exercise any powers whatsoever during the receivership, except those that may be specifically delegated to it in writing by the emergency manager. To date, few (if any) powers have been delegated by the emergency manager, who continues to exercise almost absolute control.
HOW COULD THE LEGISLATURE ENACT A NEW E.M. LAW AFTER THE REFERENDUM?
Many people have asked whether the Michigan Legislature was authorized to enact the current emergency manager law, 2012 PA 436, within weeks of the referendum that resulted in the repeal of the former emergency manager law. The short answer is—unfortunately—yes.
The new emergency manager law was adopted by the Legislature mere weeks after the people’s rejection of the old emergency manager law at the 2012 general election. Does this seem fair? In Michigan, a law that is initiated and adopted by the people can only be repealed in three ways: (1) by a subsequent vote of the people, (2) as provided in the text of the initiated statute itself, or (3) by a vote of 3/4 of the members elected to and serving in each house of the Legislature. Const 1963, art 2, sec 9. These constitutional safeguards are intended to prevent the Legislature from overturning the will of the people and to protect the voters’ decision on initiated legislation.
However, no such constitutional safeguards exist to protect the will of the voters following a referendum. In Michigan, a statute that is rejected by the people by way of the referendum may be immediately re-enacted by the Legislature in identical form. See Reynolds v Bureau of State Lottery, 240 Mich App 84, 99-102; 610 NW2d 597 (2000).
This makes almost no sense to me, and certainly undermines the will of the voters as expressed through the referendum process. All political power is inherent in the people, Const 1963, art 1, sec 1, and the referendum process is clearly intended to serve as a check on the power of the Legislature. A constitutional provision that is designed to restrain the power of the Legislature (i.e., the referendum provision) has very little meaning if it can be rendered entirely nugatory by the Legislature itself.
WHERE DO WE GO NOW?
Under Michigan’s current emergency manager law, the elected DPS board of education does retain one significant power—the power to remove an emergency manager by supermajority vote after he or she has served for 18 months. MCL 141.1549(6)(c).
Jack Martin served as DPS emergency manager for nearly 18 months; he resigned just before his 18 months were over. At that point, Darnell Earley was appointed to succeed him. It doesn’t take a crystal ball to see what will happen next: Earley’s 18 months will expire in July (unless he resigns earlier), at which time Governor Snyder will appoint yet another new emergency manager for DPS. I wonder who the next DPS emergency manager might be? We’ll know in six short months.
How long will this cycle continue? As long as Michigan’s current emergency manager law remains in place. It has quickly become the new normal—a new DPS emergency manager will be appointed every 18 months for as long as the financial emergency is deemed to persist. And who decides whether a financial emergency continues to exist in the Detroit Public Schools? That’s right, it’s the DPS emergency manager himself. Are you starting to see how convenient this process is for the emergency manager and Governor?
In Michigan, local school districts have no inherent authority of their own; they enjoy only those powers and privileges that the Legislature confers. Under the Michigan Constitution, the Legislature unquestionably has the power to prescribe emergency measures for troubled school districts. And under the emergency manager law, the Governor certainly had the power to appoint Darnell Earley (as well as the previous emergency managers). But powers such as these must be exercised with respect and restraint—two elements sorely missing in the present situation.
Here’s the real problem: Even if the next emergency manager is a wonderful person who truly believes in public education and cares for the teachers and students of DPS, he or she still will be not able to rectify the financial troubles plaguing the district. It’s just not possible with a limited 18-month tenure, mounting pressure from the “school reform” community, a tax base in decline, and few actual tools. Indeed, aside from filling a few vacancies and entering into an eminently problematic agreement with Eastern Michigan University to form the Education Achievement Authority (EAA), I know of no meaningful changes that have been implemented by any of DPS’s emergency managers. I doubt the next one will be much different.
In November 2012, the people of Michigan voted to repeal the former emergency manager law, in large part because they (1) disagreed with the practice of using unelected, unaccountable gubernatorial appointees to run local governments, and (2) wanted to restore power to local, elected leaders. At that same election, however, the voters also elected an anti-public-school, anti-local-control Republican majority to the state house of representatives. Two years later, many of those same electors voted to give Governor Snyder a second term and to send an overwhelmingly pro-emergency-manager Republican majority to the state senate. Elections do have consequences; we must better educate the voters if we are serious about restoring local control.
Because Michigan’s current emergency manager law contains a monetary appropriation, it cannot be repealed through the referendum process in the same way that its predecessor statute was (even though it could be repealed by way of the initiative process). In the future, we must work to elect legislators who will respect the principle of local control and work together with local officials to find lasting solutions for Michigan’s financially troubled communities and school districts.