Publication

18 December 2025

Michigan Court of Claims Upholds Privilege Waiver in Section 31aa Litigation

On December 17, 2025, the Michigan Court of Claims upheld the Privilege Waiver contained in Section 31aa(9) of the State School Aid Act (“SSAA”).  The Plaintiffs in the case – a large number of school districts and school officials – argued that the Privilege Waiver was 1) unconstitutionally vague; 2) an unconstitutional condition that coerced the surrender of fundamental rights; 3) a violation of the Title-Object Clause of the Michigan Constitution, and; 4) an intrusion upon the judiciary’s exclusive authority in violation of the separation-of-powers doctrine.  The Court upheld the Privilege Waiver, while simultaneously offering important clarifications of the statutory text.

Statutory Clarifications

First, the Court interpreted the phrase “any privilege.”  In finding that the phrase was clear and unambiguous, the Court concluded that “Any and all privileges that may otherwise protect information from disclosure by the district are included.”  Thus, privileges that are often relied upon by school districts – such as the attorney-client privilege or the investigator privilege – are encompassed and included in the waiver.

Second, the Court interpreted the definitions of “mass casualty event.”  In doing so, among other interpretations, the Court held that the word “fatalities” which is one of the definitions comprising a mass casualty event requires multiple fatalities.

Third, the Court analyzed the argument that the Privilege Waiver would extend beyond the “comprehensive investigation” required by Section 31aa.  The Court rejected that argument and held that the “privilege waiver will be triggered only during a comprehensive investigation following a mass casualty event.”  (emphasis supplied).

Fourth, the Court determined that Section 31aa applies only to the school district, and not to individuals.

Application of Privilege Waiver Requirements

The Court also offered examples of how the Privilege Waiver could be applied based on its statutory construction.  By way of example, if a shooting on a school bus leads to the injury of three or more persons or the death of at least two persons, the State may conduct a comprehensive investigation.

  • If the investigators request the district to provide e-mail communications within the district’s transportation department about safety issues on school buses, the district may not withhold those documents.
  • If the investigators request communications between the district’s superintendent and the district’s attorney about legal methods of addressing safety on buses, the district may not claim an attorney-client privilege.
  • If a school counselor worked with the involved shooter in the past, the district could not raise a counselor privilege for communications within its control.
  • If the district asked the counselor directly to reveal statements made during a session or to produce materials shared with the counselor’s own attorney, the counselor could assert any available privilege because the counselor did not agree to waive any privileges.

Other Examples:

  • If the bleachers collapsed at a football game, resulting in injuries requiring emergency services for several individuals, this could be declared a mass casualty event triggering a comprehensive investigation.
  • A bleacher collapse injuring or causing the death of one individual, on the other hand, would not be a mass casualty event and thus would not trigger an investigation or incumbent waiver of privilege.
  • A mass food poisoning event or mass illness caused by a gas leak would fall within the definition of a mass casualty event…. But such incidents impact school safety and school safety is one purpose of the funding provided by § 31aa.
  • A single teacher suffering a heart attack in the classroom would not be a mass casualty event

What Happens Next?

For now, school leaders have some additional clarity over the Privilege Waiver.  Until there are further orders from a court, school leaders should plan for the Privilege Waiver to remain in effect.  The Plaintiffs may appeal the decision by the Court of Claims, and the Federal Court case continues to linger until after the resolution of the Court of Claims case.  School leaders should confirm their plans with respect to rescission given the new interpretations of Section 31aa,  and we recommend school leaders planning to rescind their request for funding pursuant to Section 31aa wait to rescind until closer to the December 30 rescission deadline and continue to closely monitor the ongoing litigation.