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August =
16, 2011
Michigan
Court of Appeals Limits Suits Against District for Failure to Exp=
el
Students
By:
Mark W. McInerney
In an e-alert publi=
shed
a year ago, we reported that a Michigan Supreme Court decision,
issued on July 31, 2010, held that teachers may have legal standi=
ng
to challenge a district's failure to expel students under one of
Michigan's "zero tolerance" laws. The Supreme Court at =
the
time remanded the case back to the Michigan Court of Appeals to
determine whether the case had properly been dismissed for other
reasons. The Court of Appeals has now issued a new opinion, holdi=
ng
that even though the teachers had legal standing they had no basi=
s to
challenge the local district's determination that expulsion of the
students in question was not appropriate.
In Lansing Schools Education Association v Lansing
Board of Education, a group of teachers sued their district f=
or
failing to expel students for alleged teacher assaults, as requir=
ed
by MCL §380.1311a. The Ingham County
Circuit Court held that the district had the discretion to determ=
ine
whether a physical assault had occurred within the meaning of the
statute, that the district had determined that the students' cond=
uct
did not constitute assault under the statute, and that courts sho=
uld
not oversee - that is, second-guess - the disciplinary decisions =
of a
district. The Circuit Court thus dismissed the teachers' case. On
appeal, the Court of Appeals concluded on the basis of a 2001 Sup=
reme
Court decision that the teachers did not have standing to ch=
allenge
the district's discipline decisions, and thus affirmed the dismis=
sal
of the teachers' case on that basis alone. The Court of Appeals d=
id
not consider the reasons relied upon by the Circuit Court for
dismissing the case.
The teachers appealed to the Michigan Supreme Court,
which re-adopted standing rules that had existed before 2001. Und=
er
the newly resurrected rules, where (as in this case) a statute do=
es
not expressly grant a potential litigant standing, that litigant
might nevertheless be entitled to sue "if the litigant has a
special injury or right, or substantial interest, that will be
detrimentally affected in a manner different from the citizenry at
large." The Court noted that one of the primary purposes of =
the
statutory provisions dealing with assaults on school employees was
the protection of those employees, and concluded that that connec=
tion
gave the teachers a "special injury" or interest suffic=
ient
to confer legal standing.
Granting the teachers standing did not resolve the c=
ase,
however; rather, the case was sent back to the Court of Appeals to
review the reasons the Circuit Court had given for dismissing the
case in the first place.
In a decision issued on August 9, 2011, the Court of
Appeals has again upheld the dismissal of the case, this time for=
the
reasons first cited by the Circuit Court. The Court noted that MC=
L §380.1311a, which requires expulsion of a st=
udent
who is found to have committed a "physical assault" on a
teacher or staff member, goes on to define "physical assault=
"
as "intentionally causing or attempting to cause physical ha=
rm
to another through force or violence." In this case, the sch=
ool
board had found that the conduct in which the students had engaged
did not rise to the level of "physical assault" as defi=
ned
in the statute. The Court declined to second-guess the school boa=
rd's
conclusion in this regard, holding that the board's finding was
"an unalterable fact that precludes recovery." In addit=
ion,
the Court held that the case did not present an "actual cont=
roversy,"
since it was lacking parties necessary to any expulsion decision -
the students themselves. The teachers had asked the Court to
"permanently [expel] these students without affording them e=
ven
the most rudimentary due process protections to which they are
entitled," a situation the Court found to be unacceptable. <=
o:p>
For both of these reasons, therefore, the dismissal =
of
the case was affirmed. The teachers have the option of seeking le=
ave
to appeal this new decision to the Supreme Court, although the
current composition of the Court may be less friendly than that of
the Court that ruled in the teachers' favor in 2010.
The second of the bases for dismissal cited by the C=
ourt
of Appeals could have been alleviated had the teachers sued both =
the
students and the school board in challenging the decision not to
expel. The first cited basis, however, will be difficult to get
around; so long as a board or its designee (i.e., administ=
ration)
holds that there is no factual basis for expulsion, there will be=
no
grounds to challenge that decision in court. The statutory defini=
tion
of "physical assault," of course, is a bit more nebulous
than the operative definitions in other zero tolerance statutes,
since it turns on a student's "intent" and whether
"physical harm" has been caused. Whether courts will be=
as
deferential to a school board that simply refuses to act in the c=
ase
of a student who has brought a firearm or knife greater than three
inches long to school, for example, is unknown. What is known, ho=
wever,
is that the concern that arose after the Supreme Court's decision
that dissatisfied teachers, parents or others would have the
unfettered ability to mount a court challenge to a district's
disciplinary decisions has been greatly reduced.
If you have questio=
ns
about these issues and how to respond to them, please contact your
Clark Hill Education Law attorney.
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