Traverse City Area Public Schools (TCAPS) trustees Monday made what President Scott Newman-Bale called one of the “hardest” decisions to come before the board, voting 5-2 to accept $1.4 million in state funding for mental health and school safety. The funding is tied to a controversial mandate requiring school districts to waive their legal privileges in a mass casualty event. TCAPS is among dozens of school districts challenging that requirement in court but faced a Tuesday deadline to accept the terms or lose the funding.

Despite a blizzard hammering Traverse City, all seven TCAPS board members attended a special meeting Monday morning to address the funding. New language attached to $321 million in school safety and mental health funds in Michigan’s budget states that in order to receive funding, districts must agree to “waive any privilege that may otherwise protect information from disclosure in the event of a mass casualty event.” Following a school shooting, for instance, districts would be required to disclose information (conversations with attorneys, closed-session discussions) that would normally be legally protected. Districts must also agree to comply with a “comprehensive investigation” following such events. A mass casualty event is defined as one that occurs on school grounds or at a school-sponsored event and results in significant injuries to at least three individuals, fatalities, a sudden surge in injured individuals requiring emergency services, or an emergency response that exceeds normal local resources.

Supporters of the requirement believe it’s crucial for transparency, ensuring investigators can get answers following school tragedies. Officials from Oxford High School have been accused of failing to prevent that 2021 shooting and to fully cooperate with the investigation in its aftermath. However, TCAPS and dozens of other school districts filed a lawsuit challenging the requirement as unconstitutional. The complaint states districts are facing 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.”

In a December 17 decision, Judge Sima Patel ruled against the districts in the Michigan Court of Claims. While the waiver language may be broad, she said, it is not vague. “Any and all privileges that may otherwise protect information from disclosure by the district are included,” Patel said in her ruling. She clarified that Section 31aa of the State School Aid Act – the budget language in question – applies only to school districts, not individuals.

Patel’s decision left districts with a December 30 deadline to opt out of the requirement and refuse state funding. Districts pushed for an extension since they are appealing the ruling with the Michigan Court of Appeals, but Patel rejected the request. She said it was unclear how long the appeals process would take and that the distribution of funds couldn’t be delayed. TCAPS already received its $1.4 million payment late last week, according to Superintendent Dr. John VanWagoner. If trustees decided to reject the waiver requirement and funding, that money would be deducted from the district’s next state payment, he said.

TCAPS trustees agonized over how to proceed, worrying that accepting the requirement would expose district employees to legal risk. While the board and superintendent have “absolute immunity,” according to VanWagoner, other TCAPS employees do not. Lawsuits must typically show public school staff engaged in “gross negligence” to succeed, but there have been efforts since Oxford to lower that standard. Any attorney procured by the district on behalf of employees would be subject to the disclosure requirement, VanWagoner said. Unionized employees might have access to outside legal assistance, but non-unionized employees could be vulnerable unless they hired their own private attorneys, he said.

“That (risk) is the ultimate crux of what this comes down to,” VanWagoner said. At the same time, $1.4 million in student funding is a “big chunk of change” to turn away, he acknowledged, especially when it’s dedicated to the very category – mental health and safety – intended to prevent school tragedies. “If you don't take the money, you actually open your kids up to more bad things,” said Trustee Beth Pack. “Nobody wins.”

Vice President Erica Moon Mohr called it an “incredibly frustrating decision” and an “awful position to be in,” while Trustee Josey Ballenger called the mandate a “gross boon for the insurance industry.” Trustees are forced to make a “choice of risk tolerance…if there is a mass casualty event” or lose vital funding for students, Ballenger said, calling it a “bad tradeoff.” While both VanWagoner and trustees said they supported transparency to the greatest extent possible following a mass casualty event, Newman-Bale said the waiver requirement would produce the opposite result, making officials afraid to talk or seek legal guidance.

“I think it does a disservice to every school district in the state to encourage active participation in an investigation, because now who are you going to talk to?” he said. “The best thing to do is not say anything to anyone if there's a mass casualty event. That's what's going to happen…it actually makes it worse.”

Trustees ultimately voted 5-2 to accept the state funding, along with the waiver requirement. Trustees Scott Hardy and Beth Pack were the ‘no’ votes, though Newman-Bale said board members all understood and respected the arguments for voting either way. The resolution makes it clear TCAPS still has the right to challenge the waiver requirement in court and will immediately rescind the district’s consent to it if overturned by a judge or changed by the legislature. VanWagoner expressed frustration that TCAPS and other districts haven’t yet “found any champions anywhere in the legislature or the state” to reverse the requirement on their behalf.

Trustees Monday also agreed to take a closer look at the district’s insurance coverage in light of the mandate. VanWagoner said TCAPS is only insured for up to $2 million per incident, a figure he said feels “really low” given recent school shooting settlements (Oxford has already agreed to two separate settlements of $500,000 each to date). VanWagoner said TCAPS should consider increasing its coverage “tenfold.” The superintendent will also explore any options for helping staff obtain better coverage or legal protections and present those to trustees in the future, he said.