But what was essentially a sidebar issue – charter schools – also had a major impact on public education, comparable to the financing changes in Proposal A.
The saga of how the Michigan Legislature adopted three separate charter school bills within a few months and achieved bipartisan support for school choice is an example of how the legislative system can work in the public interest.
For generations, Michigan paid for its public schools through local property taxes. In 1993, the Michigan Legislature repealed all property taxes for public education, leaving the potential that there would be no school funding starting in 1994. This was effectively an effort to force Democrats and Republicans in the Legislature to come together to adopt a new education financing system. As the new school finance bills moved through the state House and Senate, a separate charter school bill amending the school code was also being considered. Republicans had enough votes to adopt the charter, and Gov. John Engler signed it into law. But the bill was constitutionally defective and would have been declared unconstitutional by the courts.
Once the constitutional defects had been identified, I told Engler that a new version of the charter school law would have to pass before the end of the session if he wanted to accomplish public school choice. Fortunately, there was a Democratic version of a charter school bill that was pending in the Senate and was not expected to go anywhere.
Senate Democrats indicated to Republican Senate Majority Leader Dick Posthumus that they were interested in getting “a piece of the action” in the education reform process. They suggested that their charter school bill could be revised to replace the defective law.
Posthumus called me and asked if I could take the Democrat bill and “fix it” so that it would be acceptable to both parties.
I said I would try and took the bill home and drafted 13 pages of legislative amendments – changes – to revise the bill and make it both constitutional and acceptable to Republicans. I emailed the draft amendments to Posthumus, who asked me to come to the Capitol to explain the changes. When I arrived at the Capitol, I used the Senate Majority Leader’s conference room to basically conduct 12 hours of shuttle diplomacy between Republican legislators, Democrat legislators and Engler to come up with a charter school bill that could withstand constitutional scrutiny and pass both houses.
One example of how legislative drafting could bridge the gap between widely different political views is the treatment of churches and charter schools in the charter school bills. The Democrat version of the bill had a provision that said, essentially, no charter school can have a contractual relationship with a church or religious organization. This was part of the Michigan Education Association and Democrat policy of prohibiting public funding for non-public schools. Republican Sen. Alan Cropsey, on the other hand, wanted a bill that would indirectly allow public support for religiously affiliated schools.
I knew I had to find some way to bridge the gap between Cropsey and Sen. Lana Pollack, a left-leaning Democrat. My solution was to retain the language that Pollack wanted prohibiting contracts between charter schools and churches but adding a phrase to the beginning of the sentence saying: “Except as otherwise permitted by the constitution….” I convinced Cropsey that by adding the phrase it would not make any substantive change because public funding of church schools was already prohibited under the constitution. I then had to convince Pollack that her prohibition on contracts between charter schools and churches would stay in the bill, but, of course, we couldn’t try to prohibit something that would be permitted under the constitution. With both senators accepting the language, we were able to get the bill finally passed very late that evening.
None of this would have taken place without the support of Democratic Sens. Virgil Smith and John Kelly, both of Detroit. They wanted the legislative system to work, and their involvement is an example of why we need legislators with experience and why Michigan’s legislative system under term limits is so dysfunctional.
For me this was an important professional accomplishment because I was able to both draft critically important legislation and also successfully argue the constitutionality of the law before the Michigan Supreme Court.
