School districts around the state are back on the clock after the Michigan Court of Claims upheld the privilege waiver contained in Section 31aa of the State School Aid Act.
On Wednesday Judge Sima Patel ruled that new language inserted into the state aid act earlier this year addressing attorney-client privilege will remain in place.
Lawmakers set aside $321 million in grants for safety and mental health initiatives but districts that opt-in must, “agree to be subject to a comprehensive investigation, must affirmatively agree to waive any privilege that may otherwise protect information from disclosure in the event of a mass casualty event, and must agree to comply with a comprehensive investigation.”
“Section 31aa is coercive, but it does not coerce the relinquishment of a constitutional right in exchange for essential public funding,” Patel said in her ruling.
But she did go on to clarify that the “privilege waiver will be triggered only during a comprehensive investigation following a mass casualty event.”
Privileges that are relied upon by school districts, such as the attorney-client privilege or the investigator privilege, are encompassed and included in the waiver.
More than 30 districts and intermediate school districts sued the state education department and state school superintendent specifically challenging the privilege language does not meet the requirements of the state Constitution and is unconstitutionally vague.
The state contended that the privilege waiver “is a necessary condition to ensure full cooperation with the comprehensive investigation, which in turn will ensure true progress in preventing future mass casualty events.”
The second key portion of the ruling was that there would be no extension in the deadline for school districts to opt-out of funding if the case proceeded through appeals, which Miller Canfield attorney Scott Eldridge, arguing on behalf of the districts, had requested.
Toni Harris, representing the state education department, said the decision of the court and possible appeals afterward could be a major issue in when to distribute funds that could be used during the current school year.
“The effect of this request for some indeterminate date 30 days from the last date on an appeal could have and likely will have unintended consequences,” she said. “This could go on for months. This could extend into the next fiscal year and that would create issues.”
“The court agrees that this is not a feasible option. There is no way for this court or the interested parties to know how long the appellate process will take,” Patel said. “The distribution of funds cannot be delayed that long, and the longer the districts have and use the funds, the more complicated they will be to recoup.”
Over the past six weeks, all districts in Oakland County voted to accept the grant funding, which Huron Valley Superintendent Paul Salah estimated to be $140 per student enrolled in each district.
Each now has 10 days to decide if they will reconvene their respective school boards and vote to opt-out after the court ruling.
“It is unlikely that we are going to see the privilege waiver struck down at this point and particularly not by December 30,” Adam Blaylock, an attorney at Miller Johnson Law Firm, has been consulting with districts around the state. “The decision being put to school districts at this point is, all the districts that have opted-in have until December 30 to rescind that decision.”
The money on the table is substantial. For example, Rochester schools voted to accept an estimated $2.1 million and South Lyon about $1 million.
“The guidance that I would offer and have been offering is that it is decision time and that this is the best information that we are likely to have before December 30,” said Blaylock. “So school boards are about as informed as they can be at this point.”
The $321 million in grant funding can be used to hire mental health professionals, school resource officers, and purchase security equipment once approved by local school boards.
It is unknown whether an appeal will be or has been filed with the Michigan Court of Appeals.
