By Beth LeBlanc, MediaNews Group
The leaders of nearly three dozen school districts across the state have filed suit against the state of Michigan, arguing language inserted into the state budget asserted an unconstitutional condition on Michigan schools seeking safety funding.
The two lawsuits, filed in the Michigan Court of Claims and U.S. District Court in the Eastern District of Michigan Wednesday, seek emergency relief before Nov. 30, which is the deadline by which schools can apply for the school safety funding tied to the controversial language.
The language being challenged requires school districts to agree to waive any privilege in the event of a mass casualty event in order to receive school safety and mental health funding. The provision was added to address issues that cropped up in the wake of the Oxford High School shooting in November 2021.
The language, the schools argued in the federal lawsuit, requires school districts “to make an impossible choice: either forfeit hundreds of thousands –– or even millions –– of dollars essential for student safety and mental health, or surrender fundamental constitutional rights through a vague, overbroad, and coercive blanket waiver of ‘any privilege’ with unknown limitation.”
The Michigan Department of Education, which is named as a defendant in the complaint, said it does not generally discuss on pending litigation.
House Speaker Matt Hall, R-Richland Township, said the language was added to ensure schools cooperate with investigations, noting it is difficult for lawmakers to craft solutions to stop similar tragedies if they are unable to fully understand what went wrong.
“We’ll see what happens with the lawsuit, and we’re ready to work with the governor on crafting different language if that’s what the court says needs to happen,” Hall said. “But I think the goal here is a very positive goal.”
The school groups filing the suit span across the state and include those districts foregoing the school safety and mental health funding because of the provision regarding a waiver of privilege. Those districts include the Macomb Intermediate School District, Warren Consolidated Schools, Wayne RESA, Oakland Schools, Traverse City Area Public Schools, Kalamazoo RESA and the Eastern Upper Peninsula Intermediate School District.
The roughly $321 million in tax dollars set aside for school safety and mental health initiatives in the state’s $84 billion spending plan required schools to waive the attorney-client privilege in the event of a mass casualty event and to comply with a comprehensive investigation into the casualties.
The provision was first introduced in Gov. Gretchen Whitmer’s executive budget in February and was eventually adopted in the final spending plan in early October.
The language was meant to address problems that arose following a shooting that took the lives of four teens and wounded six students and a teacher at Oxford High School in 2021. During subsequent internal probes of the Oxford shooting, investigators and parents seeking answers were often hampered when administrators and employees remained silent by citing attorney-client privilege.
School groups sent a memo to lawmakers last month asking them to reconsider the requirement. The groups have until Nov. 30 to complete the application process for the funding, at which point they would need to agree to waive their privilege.
The school safety and mental health funding, sometimes referred to as “31aa” money in reference to the section of law where it’s located, makes $300 million available to public schools and $21 million to nonpublic schools. The legislation sets aside $214 million for per-pupil mental health and safety grants, $53.5 million to hire school resource officers and $53.5 million to hire staff for student mental health needs.
The language requiring a waiver of privilege is “unconstitutionally vague” and fails to clearly define “privilege” and “mass casualty” event, the lawsuit said.
“The provision, therefore, could arguably be triggered by a single tragic incident, such as a building defect or collapse that causes the deaths of multiple workers or school property, a bus accident involving students or staff, or a severe weather event leading to multiple casualties on school grounds,” the federal lawsuit said.
Additionally, the federal lawsuit argued, the provision imposes an unconstitutional requirement by “leveraging essential public funds in exchange for the waiver of fundamental individual rights, further violating substantive due process principles and the constitutional privilege against self-incrimination under the Fifth Amendment to the United States Constitution.”
“Although the Legislature’s intent to fund school safety and student mental health initiatives is laudable, its attempt here is constitutionally infirm because of the Privilege Waiver provision, which should be declared unconstitutional, enjoined, and severed,” the federal lawsuit said.
In the state suit, the schools also argue the provision violates the separation of powers because it allows “the legislative and executive branches to abrogate evidentiary privileges that fall within the purview of the judiciary.”
