AG's office: Whitmer lacks authority to close Benton Harbor schools

Gov. Gretchen Whitmer has no legal authority to close Benton Harbor's high schools, but she could deploy a financial review team whose work might result in an emergency manager overseeing the troubled district, according to the state Attorney General's Office.

Whitmer caused an uproar when in May she sent the Benton Harbor school board a proposal to close its high schools in 2020 and send those students to predominantly white districts. In June, her representatives were booed at a school board meeting at Benton Harbor high school when several hundred members of the community vehemently rejected Whitmer's plan.

Since then, questions have been raised by state department officials, members of the State Board of Education, the Benton Harbor School board and others about who or which agency has the authority to close schools or dissolve a school district in Michigan since Whitmer pushed for the district to shutter its high schools in the spring as part of her financial and academic reform plan.

State Attorney General spokeswoman Kelly Rossman-McKinney told The Detroit News the governor has no legal authority to "force" the Benton Harbor school board to accept her proposal to educate only students in grades K-8 and send all high school students to neighboring districts.

"The governor’s proposal was an attempt to avoid the Treasurer and (Michigan Department of Education) from taking more severe and drastic statutory action against BHAS such as dissolving the BHAS school district ... or having the Superintendent of Public Instruction conduct a preliminary review to determine the existence of probable financial stress," Rossman-McKinney said in an email.

Asked to cite the governor's authority to close the high schools, Tiffany Brown, spokeswoman for Whitmer, said the state "offered a proposal" for the district to consider and the governor agrees with state law that the state superintendent of public instruction and the state treasurer are the only two authorities who can dissolve a district.

Brown said action by state lawmakers would be needed if dissolution is sought because Benton Harbor does not meet all of the criteria outlined in the law to dissolve the district. Specifically, the district did not lose at least 10% of students between the 2017-18 and the 2018-19 school years, Brown said.

The Benton Harbor school board has twice rejected plans by Whitmer and her office, including a more recent plan that would have increased teacher compensation and installed measures to boost student proficiency. Whitmer has traveled to the city twice in five weeks to meet with school board members.

Talks remain ongoing between the Benton Harbor Area school board and members of Whitmer's staff on how to address a severe financial and academic crisis in the southwest Michigan school district that educates about 1,800 mostly black students.

The school board, which is meeting at 6 p.m. on Tuesday for a special meeting, is expected to present the governor's office with a new four-year plan either Tuesday or Wednesday, according to Whitmer's office.

Rossman-McKinney said a review team would likely find that a financial emergency exists within the school district that is $18.4 million in debt.

"If the governor adopted that finding, BHAS would be right back where it was in 2013 when it entered into a consent agreement with the Treasurer and Superintendent of Public Instruction," Rossman said. "It is possible that this time, however, the governor could appoint an emergency manager."

Rossman-McKinney said the governor’s proposal assumes the Benton Harbor school board would want to avoid state intervention measures and would voluntarily enter into agreements under a state law that allows school districts to be a "general powers" school district.

"But if BHAS refuses to enter into some alternative proposal, then the governor, as head of the executive branch of state government, could require executive department officers, such as the Treasurer and the Superintendent of Public Instruction, to take appropriate statutory action to resolve the financial emergency and student performance deficiencies," Rossman-McKinney said.

Joseph Taylor, vice president of the Benton Harbor school board, said the future of the district will be determined by the state superintendent of public instruction and the state treasurer.

"I would say it’s a good thing she (Whitmer) is interested, but at the same time, this is between (the state Education Department)  and treasury at this point," Taylor said.

Taylor maintains that because the district continues to have a cooperative agreement in place with the Michigan Department of Education through 2023, no one can come in and break the agreement and close schools.

"We have four more years on that agreement. That is what it means to me," Taylor said. "And I think taxpayers and government officials don't understand that."

As for the state superintendent and state treasurer dissolving the district in the future, Taylor says they cannot do that now or in the near future.

"It says we have to lose a large number of students. We don't meet that. We didn’t have a pay-less payday," Taylor said. "As long as we have a balanced budget and we can pay our teachers, we are OK."

The new four-year plan being presented by the school board to the governor includes the district and its students meeting some guidelines and benchmarks at 24 months and 48 months, Taylor said. Taylor would not provide a copy of the plan.

"We can't let the kids sit there and not learn. We have benchmarks. This is robust," he said. "We are taking steps for each year for four years."

Steven McCoy, the pastor of the McCoy Memorial Church of God in Christ and member of an education committee, the Southwest Michigan Ministerial Alliance, said if the governor has no authority, she owes it to the district and community to correct the situation.

"We have a crisis here now because people (are) on the edge," McCoy said. "They don’t know what is going to happen to their district. They don’t want the high school closed or the district dissolved."

McCoy said he wants meetings between the school board and the governor's office to be open and not held in "secret." Past meetings between both parties have been closed to the media and members of the public.

"I don’t know what she is trying to do," he said. "If her office really wants to work with Benton Harbor in good faith, then let every conversation be open."

According to the governor's office, members of Whitmer's administration met with Benton Harbor Mayor Marcus Muhammad on May 7, the first of several meetings held by her office to discuss the school district. Whitmer officials met May 23 with local religious leaders and business officials, and then school board members on May 24, presenting the plan to close the high schools.

Whitmer first came to Benton Harbor on June 5 to hold a "listening" session on her administration's plan for the district.

Muhammad said he presumes that based on the "rules of collaboration" that Whitmer had "good intentions" when she came to Benton Harbor in June and asked residents to accept her plan to close both high schools in return for some debt relief. The school district's short- and long-term debt is expected to rise to $21.5 million at the end of fiscal 2020.

Asked why Whitmer would pitch a plan with no real authority to enforce it, Muhammad said Whitmer's background and expertise come from her time as a prosecutor.

"And prosecutors not only make deals but cut deals. And perhaps this may have been a deal to curry favor with the Republican legislators who have a vested interest in shutting down Benton Harbor area schools," said Muhammad, citing Sen. Majority Leader Mike Shirkey's comments supporting the governor's plan.

Shirkey said in June that the alternative to the state's solution is dissolution.

"It would be an absolute disaster for Gov. Gretchen Whitmer to deploy an emergency manager," Muhammad said. "That formula has proven to be reckless, irresponsible and a total abuse of power in municipalities as well as school districts."

Several districts have been placed into the hands of emergency managers, including Detroit Public Schools and the districts of Muskegon Heights and Highland Park. Both Muskegon Heights and Highland Park now operate as charter districts only.

"This is an excellent opportunity for Gov. Whitmer and the state departments which regulate education to put their minds together as well as resources and reform public education," Muhammad said. "Anything short of that will become a sinkhole and education in Michigan will begin to make a sucking sound."

On Thursday, a rally was held for parents to ask questions and enroll students in the K-12 district where enrollment has fallen 45% between the 1999-2000 school year and 2018-19.

Updated enrollment numbers for the district for the new school year were not available as parents continue to enroll children through the first day of school in September.

According to the district's website, it has 37 open positions, including 18 teachers, three principals and 12 staff support jobs.

Benton Harbor parent Apollonia Williams said she questions why Whitmer came to the city to ask residents to give up their namesake high school and a smaller alternative high school.

"So really, what was all this for?" Williams said. "Everyone was yelling at first and now everybody is quiet. I don’t know what is going on."

Williams has enrolled her children into the district but still has concerns. Her 16-year-old daughter, who will be a senior at the high school, still asks if the school is going to close.

"I am going to see what is going to happen," Williams said. "I don’t want them to be in the middle of chaos."

Craig Thiel, research director at the Citizens Research Council of Michigan, said it appears both sides are at an impasse over the district's financial crisis.

Still, Thiel maintains the decision to dissolve Benton Harbor or any district rests with two non-elected state officials: the state superintendent of public instruction and the state treasurer. 

In 2013, the state dissolved the Buena Vista School District and Inkster Public Schools. Those students were forced to move to schools in bordering districts.

Both Inkster, with 2,200 students, and Buena Vista, with 432, could not afford to open their doors in the new school year and educate students for the entire school year after years of deficits and debts.

Inkster had a $15.8 million deficit, and Buena Vista, which had to close its doors for two weeks in May after it ran out of money, had a $3.7 million deficit.

Michigan’s new state superintendent of instruction Michael Rice starts Aug. 1. Rice was not available to comment on MDE matters until he takes his post, MDE spokesman Martin Ackley said.

Asked if the state education department agreed that the state superintendent and state treasurer have the authority to close districts once certain conditions are met, Ackley said it depends.

"It was written by the Legislature to specifically meet the conditions that existed in the Buena Vista and Inkster school districts at that time," Ackley said. "In the same sense, this law does not exclude any other districts that may also fit those specific conditions since the law was written in 2013."

State Board of Education vice president Pamela Pugh, D-Saginaw, asked the state education department to determine what legal authority Whitmer used to make the proposal to close schools in Benton Harbor.

Pugh said she is still waiting for that opinion.

“It did not appear that our interim superintendent was driving the ship,” Pugh said. "It didn’t sound like treasury was driving. It sounded like the governor was driving things."

Enid Goldstein, a volunteer at the Benton Harbor High School library and city native, said she wonders why a governor with a "lot on her plate" would push to close the schools in Benton Harbor when it is not her authority to do so.

"When she finds time from 'fixing the damn roads,' maybe Whitmer could focus on the larger problem of fixing Michigan's broken educational system, which now delivers some of the lowest test scores in the nation," Goldstein said.

jchambers@detroitnews.com