Nick Krieger (@nckrieger):
As I have already written, I do not believe the State School Reform/Redesign Office (“SRRO”) may close any Detroit community district school under the authority of § 391(1), or any charter school under the authority of § 507(5), until it has published the required list of the lowest-performing 5% of pubic schools in the state for three successive years as required by § 1280c. As we know, the SRRO has not done this. And § 1280c, which requires the SRRO to publish the list by September 1 of each year, simply does not permit the agency to compile the list retrospectively using old data.
As an aside, I fail to understand why the SRRO believes that the list of the lowest-performing 5% of public schools in the state must be based entirely on test scores. Section 1280c(1) specifically refers to the standards set forth in §§ 14005 and 14006 of the American Recovery and Reinvestment Act of 2009, 123 Stat. 282-284. Those sections, in turn, refer to § 1111 of the Elementary and Secondary Education Act, 20 USC § 6311, which generally requires each state to identify the lowest-performing schools on the basis of the state’s individual accountability system. However, § 1111(e)(1)(B)(iii) specifically prohibits the Secretary of Education from prescribing the specific methodology or weight of any measure used by the state to identify or meaningfully differentiate low-performing schools. I’m not an education expert, so maybe I’m missing something here. But it certainly has me scratching my head.
Anyway, returning to my main point, it’s fairly clear that the SRRO cannot close Detroit community district schools under § 391(1) or charter schools under § 507(5) until it has published a list of the lowest-performing 5% of public schools in the state each year for three consecutive years. We’re obviously still waiting for that to occur, and there’s absolutely no way it can happen by next June unless the SRRO builds a time machine.
So what about other schools (i.e., traditional public schools that are not in Detroit) that the SRRO targets for “school closure” under § 1280c? For the reasons that follow, I conclude that any decision by the SRRO to implement the “school closure” model under § 1280c for these other schools may be appealed directly to the circuit court.
Article 6, § 28 of the Michigan Constitution of 1963 states in pertinent part:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law . . . .
This section provides the framework for appealing final administrative decisions in Michigan. In turn, MCL 600.631 “specifically allows appeals of decisions by state agencies when judicial review ‘has not otherwise been provided by law.’ ” Midland Cogeneration Venture LP v Naftaly, 489 Mich 83, 97; 803 NW2d 674 (2011).
Any final decision of the SRRO to issue an order unilaterally implementing the “school closure” intervention model under § 1280c(6) or (7) will necessarily be made on a case-by-case basis, and will involve the exercise of discretion by the school reform officer or CEO. Such a decision is quasi-judicial in nature. See Midland Cogeneration, 489 Mich at 92. Michigan law clearly gives local school districts the right to operate and manage their own schools. MCL 380.11a(3); see also Starkweather v Fox, 236 Mich 57, 59; 209 NW 849 (1926). And the Michigan Court of Appeals has ruled that local governments (school districts are local governments) may appeal administrative decisions under Const 1963, art 6, § 28 to vindicate private rights on behalf of the public they represent. In other words, the SRRO’s final decision to implement the “school closure” model under § 1280c(6) or (7) would affect a private right, and the state constitution therefore guarantees judicial review. See Oshtemo Charter Twp v Kalamazoo Co Rd Comm, 302 Mich App 574, 582; 841 NW2d 135 (2013); see also Midland Cogeneration, 489 Mich at 97.
Of course, any such judicial review would be limited to whether the decision was “authorized by law.” Const 1963, art 6, § 28. But as I wrote in an earlier blog post, the SRRO may not proceed to unilaterally implement the “school closure” model until the targeted school has been placed in the state reform district under § 1280c(6), or a CEO has been appointed for the school under § 1280c(7). Certain statutory steps must be followed before this can occur. A decision is not “authorized by law” if it exceeds the agency’s statutory authority or is made upon unlawful procedures. Northwestern Nat’l Cas Co v Insurance Commissioner, 231 Mich App 483, 488; 586 NW2d 563 (1998).
Just as important, a decision that is arbitrary and capricious, unreasonable, or an abuse of discretion is, by definition, not “authorized by law” within the meaning of the constitutional provision. Northwestern Nat’l, 231 Mich App at 488; Central State Bank v Commissioner of Financial Institutions, 136 Mich App 368, 372; 356 NW2d 642 (1984). A decision is arbitrary and capricious if it is made without reference to adequate principles or standards. Mich Farm Bureau v Dep’t of Environmental Quality, 292 Mich App 106, 145; 807 NW2d 866 (2011). A decision is also arbitrary and capricious if it is based on “prejudice, animus, or improper motives.” Cona v Avondale School District, 303 Mich App 123, 143; 842 NW2d 277 (2013). Thus far, we do not know what “principles or standards,” if any, the SRRO is planning to use to guide its decision-making process with regard to the closure of low-performing schools. Unless the SRRO relies on adequate principles and standards, however, any decision to unilaterally order “school closure” under § 1280c will be arbitrary and capricious, and accordingly open for possible reversal by the courts.