Nick Krieger (@nckrieger):
I'll probably lose a few followers for posting this, but I feel I must correct the record with respect to Attorney General Bill Schuette's recent formal opinion concerning school closures.
On Wednesday, Schuette issued Opinion No. 7292, pertaining to the authority of the State School Reform/Redesign Office ("SRRO") to close schools operated by the Detroit Public Schools Community District ("DPSCD") under § 391(1) of the Revised School Code. Albeit poorly written, the opinion reaches the correct conclusion — except for the part that says 2016 PA 192 was properly enacted "with immediate effect" (it was not).
I note that Schuette's press release is absolutely ridiculous and full of anti-public-school rhetoric, referring to "failing school[s]" and making an absurd joke about children's ability to spell. But that does not mean that his written opinion is wrong.
Under well-accepted legal principles, the unambiguous language of a statute must be enforced as written. These principles are neither Republican nor Democratic.
Do I think the Legislature did the right thing last June when it passed 2016 PA 192? Absolutely not. Do I like § 391(1)? No. Do I agree with the concept of closing pubic schools? Again, no. Nor do I agree with Bill Schuette on 99.8% of issues.
Nevertheless, in this instance, Schuette's opinion reaches the right result (for the most part). There are plenty of other reasons to be upset with Bill Schuette. But if you want to be angry at someone in this particular case, be angry with the legislators who enacted 2016 PA 192, the special-interest groups that drafted and promoted the legislation, and the governor who signed it.
While Governor Rick Snyder's reading of § 391(1) would have provided DPSCD three years to improve performance before facing the threat of school closures, and therefore had great appeal, it was simply inconsistent with the statutory text.
As an initial matter, Snyder's incorrect reading of § 391(1) improperly equated the words "operate" and "control." In the context of the Revised School Code, the term "operate" does not mean the same thing as "control." Consider this: A school that belongs to a community district might not be "operated" by that community district. See MCL 380.11a(3)(a)(ii); MCL 380.382. At the same time, a school that does not belong to a community district could be "operated" by a community district (I don't know what it ever would be, but it's statutorily possible). Under the Revised School Code, the concept of ownership/control is entirely separate from the concept of operation.
Next, it is fairly clear that § 391(1) was intended to apply in the present, requiring the closure of schools in "the current school year." The statute does not say that it applies to schools "operated by the community district for the immediately preceding three years." Instead, it merely pertains to schools "operated by the community district," i.e., those operated by the community district at the present time.
The Miller Canfield memorandum on which Snyder relied suggested that schools "operated by" DPSCD since the transfer date of July 1, 2016, are somehow new and legally distinct from the same schools that were operated by DPS before the transfer date. But this is legally inaccurate. By law, a school that is "operated by a community district" on the transfer date is the same school as that which was operated by the qualifying school district immediately before the transfer date. MCL 380.12b(2), (7)(a), (7)(i). I assign no weight to this specious argument.
Lastly, under the Snyder/Miller Canfield interpretation, the SRRO would only be able to close schools operated by DPSCD pursuant to § 391(1) during a single, one-year period — the fourth school year after the transfer date, or 2019-2020. This makes very little sense.
Beginning in the 2017-2018 school year, the SRRO will implement a letter-grading accountability system for all public schools (DPSCD and charter) located within the boundaries of the DPSCD district. See MCL 380.390(2) (2017-2018 will be "the second full school year that starts after the transfer date"). The statute only requires the application of § 391(1) until the letter-grading accountability system has been in effect for three school years, or until the end of the 2019-2020 school year. MCL 380.391(1). Thus, beginning with the 2020-2021 school year, the closure of schools operated by DPSCD will presumably take place under § 391(2) instead of § 391(1).
Under the Governor's erroneous interpretation, the SRRO would have to wait for three full years (2016-2017, 2017-2018, and 2018-2019) before being able to close a school operated by DPSCD in accordance with § 391(1). The SRRO would be able to close a school operated by DPSCD in the 2019-2020 school year under § 391(1). But beginning with the 2020-2021 school year, the closure of schools operated by DPSCD would be based on the letter-grading system under § 391(2), and § 391(1) would fall into disuse.
Why would the Legislature have gone to the trouble of drafting § 391(1) if it were only intended to apply during the 2019-2020 school year? The Governor's interpretation was just not consistent with the statutory text or legislative intent.
Make no mistake. Schuette has been a dreadful Attorney General. He places partisanship and personal aggrandizement above his duty to fairly enforce the law. He regularly disregards the state constitution, picking and choosing the provisions that he wishes to enforce while ignoring those that get in his way. He prosecutes public officials for failing to do their jobs while he fails to do his job at the very same time. And he wastes countless thousands of state tax dollars on frivolous and vindictive litigation. Yes, as I stated above, there are many reasons to be upset with Bill Schuette. But Opinion No. 7292 is not one of them.