The Michigan Education Association union is not damaged by the existence of 32 charter public schools it sought to defund, the Michigan Court of Appeals ruled recently.

The Court of Appeals dismissed the union’s lawsuit, as did a lower court last year, meaning that more than 10,000 students will be able to continue attending those schools this year.

The Michigan Education Association union told the Michigan Court of Appeals during oral arguments in July that it thinks the Bay Mills Community College board is not a public entity, even though the union was able to obtain documents from the board through Freedom of Information Act requests. Michigan’s FOIA law applies only to public bodies. Bay Mills is located in Brimley, in the Upper Peninsula.

Suzanne Clark, representing the MEA, told a three-judge panel that because the BMCC board is appointed by American Indian tribal members, not publicly elected, the union does not think the schools authorized by the college are public, and therefore not entitled to public dollars.

This marks the second major legal set back for the MEA in as many years. The union was unsuccessful in 2005 at attempting to organize teachers at an independent school in Metro Detroit. The MEA did not return several phone calls seeking comment for this story.

Parents of more than 10,000 students have chosen to enroll their children in the 32 public schools authorized by BMCC, many of them in underserved populations and urban areas, according to Richard Landau, an attorney with the Coalition for Educational Choice representing the Bay Mills schools.

Assistant Attorney General Robert Dietzel told the Appeals Court panel that the union had failed to meet the constitutional requirements to prove standing.

“There has been no allegation that those schools deliver anything other than an exemplary education to the students,” Landau told the court during oral arguments.

The MEA union’s original lawsuit against the state was dismissed on three of four counts last year by an Ingham County circuit court. Judge Joyce Draganchuk did say, however, that the MEA had standing on one count, due to a relaxed standard set forth by the Legislature that makes it easier for law suits to be filed. That prompted the union to file its appeal last March.

Assistant Attorney General Robert Dietzel told the Appeals Court panel that the union had failed to meet the constitutional requirements to prove standing. That threepart test requires the party bringing suit to prove that it has suffered an injury greater than the population in general, the injury is traceable directly to the defendant, and the issue can be addressed by the court.

Landau pointed out that the union “carefully chose” not to sue Bay Mills or the tribe.

“The MEA has utterly failed to show any injury,” he said.

Clark, however, said the union believes that since the college board is not a public body, it is not legally allowed to receive public dollars. Those dollars, in turn, are used to run the charter schools. Clark said this was an illegal expenditure of public funds.

“Our money is spent in an unconstitutional manner,” Clark added.

After the Draganchuk ruling, Landau said the MEA’s position was one of “naked, political self-interest,” and that the union’s position is that “public money is their money, its money their members are somehow entitled to.”

In an August 2005 deposition before the case was heard by Draganchuk, then-MEA President Lu Battaglieri said roughly $57 million of the union’s $70 million in yearly revenue was the result of member dues.

(T)he more available to bargain, the more is available for them for salaries and wages,” he said at the time.

If the 32 public schools authorized by Bay Mills were to close, many of those 10,000 students could end up in conventional public schools, staffed by teachers who belong to and pay dues to the MEA. With those students would come nearly $7,000 each in per-pupil funding from the state. That additional funding would then be part of the overall pot for bargaining.

As Dietzel noted at the circuit court level, students who would be forced to choose another school should the MEA succeed would not have to attend a conventional public school. They could pick from other options, including independent schools, other charter schools and home-schooling.

Aside from complying with FOIA requests, Dietzel and Landau argued that the Bay Mills board does qualify as a public body because of the state’s charter school law, which says the board is under the “exclusive control” of the state superintendent for public instruction, takes an oath of office to that effect, and members can be removed by the superintendent.

“The Constitution says the Legislature has the power to create a system of public instruction and that system is under the ultimate and immediate control of the state,” Landau said. “With Bay Mills, the Legislature exceeded that, saying it has ‘exclusive’ control. Bay Mills is forced to jump through more hoops than anyone.”

Dietzel said not only can the state superintendent remove a board member, the Department of Education also has other controls at its disposal, including the ability to stop funding the public schools authorized by Bay Mills, and the ability to take away authorization powers.

“There’s a difference between public schools and private or parochial schools,” Dietzel said.

Dietzel gave several examples of why the schools authorized by Bay Mills fit the criterion for public schools, saying they do not charge tuition, they have no church affiliation, they have open enrollment and they are funded with public dollars – meaning they do not charge tuition.

The court raised the issue of a parallel between a school like Central Michigan University, which also authorizes charter schools, and Bay Mills. CMU’s trustees are appointed, rather than elected, albeit appointed by an elected official. The court also asked that by accepting public funds, was not Bay Mills “subordinating itself to state law.”

Clark argued that because of the tribal affiliation at Bay Mills, it falls under federal guidelines as a sovereign power,”and would not allow itself to be controlled by the state superintendent.

Landau countered that while the college is affiliated with the tribe, the BMCC board is not the tribe.

“They are appointed by the tribe, but that doesn’t make them the tribe,” he said. “It’s a separate entity as a matter of law. The issues of sovereignty are immaterial.”

Because the MEA failed to respond with comment for this story, it is unclear whether the Court of Appeals decision will settle the matter.

“Regardless of the decision, the charter school movement is anticipating this will be appealed to the Supreme Court,” said Dan Quisenberry, president of the Michigan Association of Public School Academies.

“Michigan no longer has time for turf wars,” Quisenberry added. “It’s time to focus on solutions – ensuring that all children have high-quality, public school options. Michigan’s charter public schools have proven themselves. The question now is whether and how all of us, as leaders, will deliver the dream of high-quality schools to all families in all communities.”