Jonathan Oosting

Detroit News Lansing Bureau

Lansing — Michigan’s superintendent of public instruction does not have the legal authority to withhold state funds from public schools with Native American mascots or logos, according to Michigan Attorney General Bill Schuette.

State Superintendent Brian Whiston has proposed the penalties for schools that do not change nicknames deemed offensive by many Native Americans.

Whiston and state Rep. Tim Kelly, the Saginaw Township Republican who chairs the K-12 appropriations subcommittee, had asked Schuette whether state law would allow the superintendent to impose the penalties.

In a formal opinion released Thursday, Schuette said the superintendent has broad powers but lacks the authority to withhold school aid or cause forfeiture of funds by schools that use an American Indian mascot, logo or other imagery.

There is “no express or implied legal authority” for the superintendent to do so under state law, Schuette wrote.

The legal opinion means Whiston would need to seek statutory changes if he hopes to impose the penalties or ask the Legislature to impose penalties through the budget process. But Kelly said he would not support those efforts, and Whiston appears unlikely to pursue the penalty plan further.

“The Supreme Court has already decided this,” Kelly said, noting a June decision by the nation’s highest court holding that a federal law prohibiting trademarks that insult any group violates free speech rights.

“This is an issue that’s very close to a lot of people in their local community, many of which put these things out as honorable images, not at all disparaging,” Kelly said of school nicknames. “I think it’s a minority of people that feel otherwise.”

Whiston proposed the mascot penalties in response to representatives from several Native American tribes who shared their concerns and experiences with state officials, according to the Michigan Department of Education.

Whiston accepts Schuette’s opinion, according to a department statement. But he “still encourages school districts that have Native American mascots and logos to use the resources available in Michigan’s Native American Heritage Fund to defray the costs of changing their school mascot name, symbol or image that depicts or refers to an American Indian tribe, individual, custom, or tradition.”

The State Board of Education in March recommended legislators add language to the state budget allowing the state superintendent to withholding funding from a local district that is asked to change a “demeaning” mascot and does not do so. But the budget approved last month by the state Legislature does not include the requested boilerplate provisions.

School nicknames — and attempts to change them — have proven controversial in several Michigan communities. In 2016, the Belding School Board unanimously voted to eliminate use of its Redskins nickname. The issue came to a head again this year in Paw Paw, where the school board voted 4-3 to keep the school’s controversial Redskins moniker.

“Whatever it takes we have to do it,” State Board of Education member Lupe Ramos-Montigny, a Grand Rapids Democrat, said in March, backing planned penalties for school logos. “If you haven’t lived through racism and this kind of treatment, I don’t want you go through it. I have gone through that.”

The board, in a 2003 resolution reaffirmed in 2010, recommended all Michigan schools eliminate the use of Native American mascots and logos.

The Michigan Department of Civil Rights filed a 2013 discrimination complaint on behalf of American Indian students seeking an order to force schools to change mascots. But the U.S. Department of Education dismissed the complaint, saying the state did not provide any specific examples of race-based incidents or identify individuals who had suffered specific harm.