TRAVERSE CITY — Traverse City Area Public Schools’ Board of Education voted to join a proposed lawsuit against the State of Michigan.
During Monday’s meeting, the board unanimously supported joining a proposed lawsuit that challenges the state and federal constitutionality of requirements tied to approximately $1.2 million in district safety and mental health funding. The suit would be filed by the firm of Miller Canfield.
At issue is the legal language which would waive certain legal protections if a mass casualty event occurs.
The law states districts that accept the funding “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.”
Trustees said they have every intention to cooperate with any investigations and be transparent if a tragedy were to occur.
“I think all of us support that objective. So I don’t think we’re trying to fight on the objective of the legislation, just purely the fact that we don’t understand how it could be applied to us in general,” board President Scott Newman-Bale said.
The lawsuit will likely be filed in the next few days, Newman-Bale said, and the district is hoping to get an injunction or ruling from the courts prior to the Nov. 30 deadline to apply for the funding.
“What we’re trying to do is ask and get clarity from the courts of exactly what that is and if it’s legal or not … and then, from there, we think we can make a better decision,” Superintendent Dr. John VanWagoner said.
Vague language
The board is hoping a legal decision would make the strings tied to the funding easier to understand so that they can reach a decision on whether to take it or not.
“The strings are very vague and could have serious consequences for our district and the Board of Education and the superintendent,” Secretary Josey Ballenger said.
There are concerns that the wording could undermine or remove attorney-client privileges and expose individuals to legal risks.
“And when language says you’re waiving all privileges and there’s no definition of what those privileges are, all means all. All constitutional rights,” Assistant Superintendent for Human Resources and Legal Services Coni Taylor said.
“If I’m no longer on this board, I have spoken for my replacement until hell freezes over – and I don’t think I can do that responsibly,” Trustee Beth Pack said. “I mean, they’ve cut all the legal protections that are given to you constitutionally out from under you – and that’s unconscionable, in my opinion.”
Taylor said the language is not narrowly tailored sufficiently to achieve the “good intentioned” goals of the law.
“And once you sign on … or we don’t challenge — it goes on forever. So you are waiving potential privileges you don’t even know you’re waiving,” she said.
Newman-Bale said he was in Lansing last week speaking with legislators and others and “every single person had a different take on what that (the language) meant.”
VanWagoner said he was on a webinar and one law firm recommended board members get their own legal representation if they accept the funding, while another firm said that wasn’t necessary.
Despite the confusion, some districts, like Lansing Public School District, are accepting the money, Trustee Ty Schmidt said.
VanWagoner said the district could be in danger of lawsuits if constitutional rights aren’t protected and challenges from multiple partners with whom they have indemnity agreements.
“It goes down to basically every employee,” he said.
It could also impact the number of people who run for open school board positions, Newman-Bale said.
“We’re volunteers and to say that we’re going to not get paid, be subject to lawsuits – and not be able to get any legal advice for those lawsuits – is a really hard thing to ask a massive majority of the population,” he said.
He called the lawsuit a “plea for help” to the state to clarify what school boards need to know to make a decision “for the safety of our kids.”
Next steps
Ballenger wondered why the Legislature couldn’t sort this out with a supplemental bill, calling it a more “normal process.”
“It does seem like this is kind of a bazooka taken out to fix it. But I’m going to defer to your decades of experience on this,” Ballenger said to VanWagoner.
“I really do not want to do this. But … I feel a professional obligation and an obligation to our employees, our future board members, future employees, future superintendent, we need clarity to this – and students especially,” VanWagoner said.
They had only two hours to review the bill’s language and speak with legislators prior to voting, he said, noting the issue could have been addressed and fixed before this point.
“I think it’s ironic of, ‘We really want transparency in this,’ but yet our legislature didn’t give us transparency to be able to have that debate, is one of the reasons why we’re sitting here today,” VanWagoner said, adding that he wished the Legislature would take up this issue in the days that are left, but after speaking with lobbyists he doesn’t believe there’s a willingness to take it on.
“I just think that they just recognize that the timing is not probable by the date that Michigan Department of Education is saying it has to be done,” he said.
And an extension isn’t possible. The law’s language says that the department must have payments out to districts before the end of December, he said. The original deadline for districts was Nov. 15, but the department pushed it back to Nov. 30.
“They have said that they are going to liquidate all the funds in December to those that are in. And those that are out will not have an option,” VanWagoner said.
If the Legislature is not willing to address the issue, the only other option is for a judge to issue a legal opinion to provide clarity, he added.
The complete list of school districts joining the lawsuit is not known at this time, but VanWagoner did say they included “larger entities of districts or ISDs from a cross-section of the state.”
The Attorney General could also issue an opinion to settle the issue, “but right now we see no evidence that that’s happening,” he noted.
The board did not approve any expenditures for the lawsuit, but VanWagoner does have discretionary funds that could be used for nominal costs.
He said he would inform the board of any expenditures.
The board will hold a special meeting in the next couple of weeks, prior to the Nov. 30 deadline, to assess the progress of the lawsuit and reassess their options. The date is still to be determined.
“This is a particularly difficult, complicated subject with no good outcomes, but we have our two weeks to find out if we can get some clarity,” Newman-Bale said.