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A lawyer for dozens of Michigan school districts that have sued the state asked a judge Thursday to use a “scalpel as opposed to a machete” to remove language in the state budget he says violates the Michigan constitution.
The budget stipulates that in order to receive school safety and mental health funding from the state, districts must agree to disclose information that would otherwise be legally protected if there is a mass casualty event. Districts must also agree to a comprehensive investigation.
Districts had until Dec. 4 to agree to waive their privilege. They have until Dec. 30 to rescind that agreement.
The case is before the Michigan Court of Claims, and Judge Sima Patel held a hearing Thursday to hear oral arguments from lawyers in the case.
The lawsuit comes a little over four years after the deadly shooting at Oxford High School that prompted a wave of legislation and investigations to address school safety and student mental health. One independent investigation found multiple failures by some school officials, and some did not cooperate with the investigation.
Scott Eldridge, the attorney representing the school districts, argued that the “waive any privilege” language as well as the definition of a mass casualty event is “eye-poppingly bad language.”
“This was rushed legislation, and rushed legislation often results in bad legislation,” Eldridge told Patel.
Eldridge said the language regarding both is “exceedingly vague” and broad. The budget doesn’t define what it means by waiving any privilege. But it does define a mass casualty event in part as an incident “resulting in significant injuries to not fewer than 3 individuals” or an incident with fatalities.
Adam de Bear, an assistant attorney general defending the state in the lawsuit, said the overall purpose of the budget provision is to support student safety and get to the bottom of any mass casualty event.
“The only way for students to be able to grow in school is if they’re in a safe environment,” de Bear said.
The provision prevents school districts from denying document requests by citing attorney-client privilege or refusing to answer questions if they’re being interviewed or deposed.
“It assures that the state gets more information, because in past experiences, investigations haven’t gone as well as they could have,” de Bear said.
Vague language leaves school officials confused, attorney says
Eldridge told Patel that the lawsuit doesn’t challenge the entire provision in the budget, just the language requiring districts to waive any privilege and the definitions of a mass casualty event. That’s why he asked her “just take that provision, declare it unconstitutional, leaving the rest to operate as it perhaps was intended.”
The privilege provision requires district administrators to “waive any privilege in any limitless number of contexts,” Eldridge said.
“And they’re not really knowing what they’re getting themselves into if they agree to opt in under these conditions and receive this money.”
Patel asked Eldridge to respond to the state’s written argument that “the privilege waiver isn’t vague as much as it is broad.”
“Something is broad means it could encompass a lot of things, but it has limits,” Eldridge responded. “Vagueness means it’s limitless and unbound because it gives zero guideposts or direction as to what’s legal versus what’s illegal conduct.”
He noted it is unclear whether the language refers only to waiving a district’s privilege or whether it also includes the individual privilege of school officials.
The definitions of a mass casualty event are vague, Eldridge said, including one that defines it as one that involves significant injuries at a school or a school-sponsored event. It’s unclear how “significant” or “injuries” would be defined, he said.
“We could be here all day coming up with ideas of what could trigger this language,” Eldridge said, questioning whether incidents like a bus accident on the way to school, concussions on a football field, a fight in the stands of an athletic event, food poisoning in the cafeteria, or a gas leak would apply.
De Bear responded in his oral arguments that all of the examples of potential circumstances “are all things that probably warrant investigations for school safety purposes. How are students at a cafeteria all being subjected to food poisoning? It makes sense to … for the betterment of school safety to get to the bottom of it,”
Lori Higgins is the bureau chief for Chalkbeat Detroit. You can reach her at lhiggins@chalkbeat.org.
