Detroit’s new school board isn’t planning on letting state officials shut down city schools without a fight.

Even as the state School Reform Office is still conducting the 30-45 day review that will determine which of the 38 struggling Michigan schools identified for closure will ultimately be forced to close their doors, the Detroit school board is holding a special meeting tonight to consider legal action.

An agenda for the meeting, which is scheduled for 5 p.m. at the Fisher Building, shows the board plans to “vote around litigation.”

Of the 38 schools on the closure list, 25 are in the city of Detroit, including 16 that are part of the Detroit Public Schools Community District. Also on the list are eight schools that are part of the state-run Education Achievement Authority, which will revert back to the main Detroit district this summer. All of the schools were put on the list because they have been in the bottom 5 percent of state rankings for three or more years.

The board took over the district last month after years of control by state-appointed emergency managers.

Board members say Detroit schools should get a fresh start — and not face penalties for decisions made when the state ran the district.

“The schools in question absolutely have to improve their performance and achievement level. There’s no debate about that,” said Sonya Mays, who is the new board’s treasurer. “This is all centered around the process and this question of ‘Does the district actually have a clean financial and operational start to control its own destiny?’”

State officials last summer created the Detroit Public Schools Community District as a new district that would not have the massive debts that hobbled the predecessor district, the Detroit Public Schools. The new district absorbed all of the old district’s schools and staff but is officially a new legal entity.

That’s expected to be one of the arguments the board will make when it files suit to stop closures. While the state is required by law to close all schools in the city of Detroit that have been in the bottom 5 percent of state rankings for three years, a legal opinion obtained by the district last summer asserted that creating the new district restarted the clock.

Attorney General Bill Schuette issued a different finding in September. He asserted that the law does require the state to close the low-performing Detroit schools regardless of their status in a new district.

As a state agency, the School Reform Office was required to follow Schuette’s opinion, said Steven Rhodes, the former federal bankruptcy judge who was leading the Detroit district last year when it first sought legal guidance on the issue.

But that doesn’t mean Schuette’s opinion will win in court, Rhodes said: “In a court of law, the attorney general’s opinion is entitled to no particular weight or deference. The judge is going to determine what the law is.”

At a meeting last month, Mays said she made a motion to ask the district’s general counsel to write a legal opinion mapping out the board’s options.

She said she expected the board to review that opinion tonight. The board could vote tonight to formally take legal action.

Rhodes predicted that if the board does file suit, it will prevail.

“I think that a court looking at this will rule in the same way that Miller Canfield gave its opinion and so I think the result of the litigation will be that the (School Reform Office) cannot close any Detroit schools for three years.”

The legal memorandum from the Miller Canfield law firm that could be the basis of a lawsuit can be read here: