State Superintendent of Schools Michael Flanagan could face legal action if he suspends the ability of charter public school authorizers to allow new schools, according to a draft of a legal analysis done by an attorney who helped create the state’s law on charter schools.
Richard McLellan, an attorney and a member of the Mackinac Center for Public Policy's board of directors, released a draft of an 11-page review of Superintendent Flanagan’s actions.
“The Superintendent’s present governance by press release suggests the Superintendent believes his authorizer suspension authority is self-executing. This is subject to challenge,” McLellan wrote.
Martin Ackley, spokesman for the Michigan Department of Education, said Superintendent Flanagan was not acting outside of his authority.
“Our reading of the state law is that it gives the State Superintendent clear and sole authority to make this decision on his own,” Ackley said in an email. “Mr. McLellan’s preliminary (Draft for Discussion) paper on this issue poses some initial legal ideas that suggest otherwise. When he finalizes his position after the discussions he is engaging, other legal parties may be brought in. For now, the State Superintendent is moving forward with his meeting with charter school Authorizers; the October 22 deadline for those authorizers ‘At Risk of Suspension’ to remediate their deficiencies; and any final action to suspend in November.”
McLellan's analysis states that while Flanagan is acting on the basis of state law, his principles and methodology have not been established in administrative rules. The state superintendent's actions could be challenged if Flanagan does not follow the rule-making process to establish, among other things, the methodology used to identify "at-risk" authorizers, and standards to determine whether an authorizer is holding its portfolio of public charter schools accountable.
“He cannot act on the basis of a press release or ‘principles’ announced on the department’s web site,” McLellan wrote.