By unanimous vote, the Michigan State Board of Education voted Tuesday to seek an Attorney General’s opinion on whether Gov. Gretchen Whitmer violated the constitution when she created a second department of education in Michigan. Officially, the board directed State Superintendent Michael Rice to seek that opinion.

The resolution, introduced by board President Pamela Pugh, a Democrat, seeks “constitutional clarity” on how the Michigan Department of Lifelong Education, Advancement and Potential (MiLEAP) fits in alongside the Michigan Department of Education — or if such a duplication of tasks is even allowed.

Pugh cited the Michigan Constitution in her motion. It read, in part:

Article eight, section three of the 1963 Michigan Constitution states that “leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education.”....

There appear now to be potentially two departments with overlapping authority for all public education, particularly preschool public education.

Whitmer last month announced creation of MiLEAP, a department of education that focuses on people younger and older than those involved in K-12 schooling.

“We just want to make sure that this is within the constitution,” Pugh said.

Nikki Snyder, a Republican on the board and a 2024 contender for the U.S. Senate seat that Debbie Stabenow will vacate when she retires in early 2025, agreed. Pugh, the board president, is also running for that senate seat.

“We elect our State Board of Education to provide consistency across the continuum of education,” Snyder said before voting yes. “So creating an additional bureaucratic body that would be a part of that only brings chaos and confusion. ... I think the constitutionality needs to be addressed.”

Tom McMillin, a former lawmaker and a Republican member of the board, was not shy in saying where he hoped Attorney General Dana Nessel’s opinion would land: against the constitutionality of MiLEAP.

“It would be helpful if the AG says the right thing and agrees that it’s unconstitutional,” McMillin said.

Whitmer spokeswoman Stacey LaRouche told Craig Mauger of The Detroit News that the governor’s office coordinated with the attorney general’s office before the executive order was issued.

"We are confident in our legal authority and look forward to working with everyone who is serious about providing Michigan students with a world class public education," LaRouche said.

Whitmer is not the first governor in modern times to use executive authority in ways that affect the Michigan Department of Education. “Republican former Gov. John Engler moved K-12 testing to the Treasury Department,” The Detroit News observed, “a move that Democratic Gov. Jennifer Granholm reversed. Whitmer's executive order transfers management of college scholarship programs from the Treasury Department to the new state department.”