Mich. gov. clarifies school closing order after complaints from homeschool groups

Governor's office: outdoor activities protected by First Amendment are permitted

By Samuel Smith, Deputy Managing Editor Tuesday, April 14, 2020

Michigan Democrat Gov. Gretchen Whitmer has clarified that an executive order issued earlier this month suspending all in-person schooling for the remainder of the school year does not ban homeschooling.

Following backlash from the Great Lakes Justice Center, Whitmer’s office published guidance on her April 2 order banning all face-to-face instruction at K-12 schools for the rest of the 2019-2020 school year.

The nonprofit legal organization warned that the language in Whitmer’s order could be interpreted as a ban on homeschooling because the order also applied to all “nonpublic” schools in the state. 

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“The EO, therefore, bars parents from directly teaching their children at home,” the group warned in a fact sheet published last Thursday. “While this may be an unintended consequence of faulty drafting, the EO’s plain language bans all ‘in-person instruction’ of all children for the rest of this school year.”

The group went on to state that “parents have a fundamental constitutional right to raise and educate their children” as guaranteed by the First and Fourth Amendments to the U.S. Constitution as well as the Michigan state Constitution. The center called on Whitmer to “correct this unconstitutional action.”

The Home School Legal Defense Association agreed with the Great Lakes Justice Center’s interpretation that Whitmer’s order could have been interpreted as applying to families homeschooling as a nonpublic school. 

On Monday, the new guidance from the governor’s office declared that homeschooling can continue in Michigan under her order. 

“Does the order’s suspension of in-person instruction prohibit homeschooling?” the guidance asked. It provided a straight answer of “No.”

While concerns were raised about the language in Whitmer’s order, HSLDA Senior Counsel Mike Donnelly said in a statement that he was not aware of “any enforcement actions taken to prohibit or otherwise interfere with families homeschooling.”

“HSLDA does not believe that the governor ever had any authority to suspend or otherwise interfere with non-public schools in Michigan and, to the extent her order sought to do so, was ... invalid to begin with,” Donnelly said. 

Whitmer’s order also clarified that the executive order does not apply to schools that operate 100 percent online. 

“These schools should continue to educate students in the manner the schools had been operating before the public health emergency,” the guidance explained. 

Additionally, the guidance clarified that school districts can resume in-person instruction if the state of emergency is lifted before the end of the scheduled 2019-2020 school year.

Last week, Whitmer’s office released a clarification on her stay-at-home order after a man who was issued a ticket for protesting outside of a Detroit abortion clinic filed a lawsuit against Whitmer and the city, arguing that the order appeared to criminalize free speech activity.

In an online blurb published last week, the governor’s office said the stay-at-home order does not “prohibit persons from engaging in outdoor activities that are protected by the First Amendment to the United States Constitution.”

“Persons may engage in expressive activities protected by the First Amendment within the State of Michigan, but must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the person’s household,” the blurb reads.

NBC News reported that Michiganders from more conservative areas of the state believe Whitmer’s stay-at-home order is infringing on their constitutional freedoms. Residents in the state are banned from traveling to their other in-state residences, such as vacation homes. They are also not allowed to use their own motorboats, or even buy seeds to grow vegetables or buy paint for their homes. But residents can still purchase lottery tickets. 

One petition online calling for Whitmer to be recalled has amassed over 200,000 supporters. 

The Facebook page "Michiganders Against Excessive Quarantine" has amassed over 300,000 followers. 

"The reason we started this group wasn't that we were against the quarantine. We're not," the Facebook group’s founder, Garrett Soldano, said in a Facebook video on Monday. "We were against our very constitutional rights taken away from us. No governor should ever have that power.”

Soldano assured the group’s followers that their “voices have been heard.” 

“We have been in contact with the state of Michigan in Lansing this morning,” he said in the video. “Know and understand that there is legislation being made right now to get us back to work as safe and as fast as possible by or before May 4.”