Collins & Blaha Achieves Favorable Result for Carman-Ainsworth Following Hearing Before MERC Administrative Law Judge
Collins & Blaha achieved a favorable result for its client, Carman-Ainsworth Community Schools, following a hearing before a Michigan Employment Relations Commission (“MERC”) Administrative Law Judge. The hearing was held after the Michigan Education Association (“MEA”) filed a petition for a self-determination election with MERC. The MEA petitioned to accrete a group of alternative education teachers, who teach in two alternative education high schools operated by the Bendle/Carman-Ainsworth Consortium, into the unit of teachers who teach in Carman-Ainsworth Community Schools. In 2013, Carman became the fiscal agent of the Consortium and took responsibility for the day-to-day operation of the Consortium programs
MERC is often reluctant to deny election petitions, as it has explained that the “primary objective is to constitute the largest bargaining unit which . . . includes within a single unit all employees sharing a community of interest.” County of Macomb, 17 MPER 35 (2004). The MEA asserted the alternative education teachers in question shared a community of interest with Carman-Ainsworth’s teachers’ unit. In its decision, MERC stated:
It is well established that the presumptively appropriate bargaining unit in a public school district includes all teaching personnel and nonsupervisory professional employees, including adult education teachers, teachers of enrichment classes, teachers who are required by law to be certified, and teachers who are not required by law to be certified and/or are not covered by the Michigan Teacher Tenure Act.
However, relying upon a theory untested since the 1990s, Collins & Blaha attorneys Jeremy Chisholm and Seth Filthaut successfully argued that the alternative education teachers were not employees of Carman, but rather employees of the Consortium. The “consortium rule,” relied upon by Carman’s counsel, provides that “Where the consortium operates as a distinct entity and its member districts share responsibility for its operations” the consortium is the employer under PERA and MERC will not include consortium employees in bargaining units of employees of any of the member districts.
The MEA asserted that since taking over as fiscal agent, Carman was the employer of the alternative education teachers in question. Upon taking over as fiscal agent, individuals who had been teaching in the Consortium programs had to apply, be interviewed, and complete new employment documentation as Carman employees. According to the MEA, whether or not a Consortium agreement was technically in effect, the Consortium effectively ceased to exist. MERC however, rejected the MEA’s argument, stating:
We conclude that there is not enough evidence in this record to support a finding that the alternative education program is no longer controlled jointly by a consortium consisting of Bendle and Carman-Ainsworth, but is now operated solely by Carman-Ainsworth.
For this reason, MERC found the Consortium the employer of the alternative education teachers under PERA and held that a unit consisting of those teachers and Carman-Ainsworth teachers would not be appropriate. The full decision is available here.
Student’s Tort Claim Against Shop Teacher Allowed to Proceed
The Court of Appeals recently issued a published opinion finding a high school shop teacher was not entitled to governmental immunity. Plaintiff, one of the teacher’s students, severely injured herself when operating a table saw without a blade guard. The suit was originally filed against the teacher, the high school, and the school district. The trial court found that governmental immunity applied to the high school and school district and dismissed those defendants from the case. However, the trial court found that summary disposition did not apply to the teacher because a jury could conclude she was grossly negligent. The Court of Appeals agreed and affirmed, allowing the case to proceed.
An individual government employee is entitled to governmental immunity from tort liability when he acts within the scope of his authority and engages in the exercise of a government function, provided that the employee’s conduct “does not amount to gross negligence that is the proximate cause of the injury or damage.” See MCL 691.1407(2). In this case, the court found that the teacher’s actions were grossly negligent, as the teacher’s conduct went beyond a simple failure to take additional safety precautions, and instead veered into the territory of showing “a willful disregard for safety measures,” as well as “a substantial disregard for known risks.” Plaintiff’s expert witness testified that there was no safe way to use a table saw when the blade guard had been removed. The teacher had also attempted to cover up her actions in removing the blade guard from the table saw, which the court interpreted as evidence that the teacher knew the blade guard should have been used.
The Court’s decision can be read in full here: Bellinger v Kram, __ Mich App __ (2017).
Court Dismisses Injured Teacher’s Suit Against School District
The Court of Appeals recently issued an unpublished opinion finding a school district was entitled to governmental immunity in a case involving claims filed by a special education teacher in the district. The teacher sustained injuries from a student in her classroom. The teacher was placed in charge of a moderate cognitive impairment classroom. The school moved a student from a serious cognitive impairment classroom into the plaintiff’s classroom. The student then struck the plaintiff in the head with his helmet during a tantrum, causing the plaintiff to fall backwards and hit her head on a concrete wall. The plaintiff teacher alleged that she suffered a traumatic brain injury, as well as other injuries, from the fall.
The teacher argued that the district should not be entitled to governmental immunity, as moving the student from the serious cognitive impairment classroom to her moderate cognitive impairment classroom constituted gross negligence. The Court of Appeals disagreed. The Court found that, while moving the student might have constituted ordinary negligence, the teacher offered no proof that the district should have known that the move would cause an injury, or that the move was reckless or showed willful disregard for safety. The court stated that simply showing that the district could have done more to prevent the injury was insufficient to establish gross negligence.
The Court’s decision can be read in full here: Kostaroff v Wyandotte Public Schools, unpublished opinion per curiam of the Court of Appeals, issued May 18, 2017 (Docket Nos. 330472; 330505).
Supreme Court Determines the Type of Educational Benefit Required Under IDEA
On March 22, 2017, the United States Supreme Court issued an opinion setting forth the nationwide standard as to what type of “educational benefit” the Individuals with Disabilities Education Act (“IDEA”) requires public schools to provide students with disabilities. In Endrew F v Douglas County School District, the Court determined that public schools must create “an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Court rejected the “merely more than de minimis” standard set by the Tenth Circuit Court of Appeals. The decision broadens the scope of students’ rights under the IDEA and settles a nationwide dispute about the appropriate standard that has existed since the 1980s.
Endrew F is a review of the 1982 decision Hendrick Hudson Central School District v Rowley. In Rowley, the Supreme Court held that schools are only required to provide “some educational benefit” to special education students under IDEA. Rowley involved a young girl with a hearing impairment who was educated in a regular classroom setting and did well academically. The Court in Endrew F affirmed that in such cases, where a child is “fully integrated in the regular classroom, an IEP [individualized education program] typically should . . . be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” The student in Endrew F, however, was not educated in the regular classroom and required special instructional services for his ADHD and autism. For children who are not educated in the regular classroom, Endrew F clarifies and expands the scope of the original Rowley decision and is intended to be a more generally applicable standard, with the understanding that each case is necessarily fact specific, taking into account that students with disabilities each have unique needs and circumstances. The decision reaffirms the view from Rowley that deference should be given to schools and educators in developing IEPs, and that teachers and parents should work through the IEP process together to determine the level of progress that is appropriate for the child. Any review of the IEP process should ask the question of whether or not the IEP is reasonable, rather than if the IEP is ideal. The Supreme Court’s decision in Endrew F could potentially impact what services schools are expected to provide for their students, with the goal of allowing students to make appropriate progress in light of their individual circumstances.
The Supreme Court’s full decision can be read here.
Schools Boards Will Be Required to Exercise Discretion over Suspension and Expulsion
Changes to the Revised School Code will require school boards to exercise more discretion when ruling on student discipline. Under recent legislation, school boards will have to consider a variety of factors before suspending or expelling a student. These factors include the student’s age and disciplinary history; whether the student has a disability; the seriousness of the student’s behavior; whether the behavior threatened the safety of students or staff; whether restorative practices will be used to address the situation; and whether the situation may be properly addressed with lesser intervention. School boards will also have to consider using restorative practices as an alternative or in addition to suspension or expulsion. Such practices may include victim-offender conferences, in which the victim, offender, student advocates, and other members of the school community work together to resolve the issue and set consequences for the offender’s behavior. The legislation will take effect August 1, 2017.
CPR/AED Instruction Required for 2017-2018 School Year
By the beginning with the 2017-2018 school year, the model core academic curriculum for health education must include instruction in cardiopulmonary resuscitation (CPR) and automated external defibrillators (AED) for students in grades 7 to 12. A certificated teacher who is not an authorized CPR/AED instructor may provide the required CPR and AED instruction, if the instruction does not result in the students earning a CPR certification card. If instruction will result in students earning a CPR certification or status, districts are encouraged to use locally available resources such as: emergency medical technicians, paramedics, police officers, firefighters, representatives of the American Heart Association or American Red Cross, or properly trained teachers or school employees.
COURT OF APPEALS UPHOLDS ANN ARBOR PUBLIC SCHOOLS POLICIES PROHIBITING FIREARMS ON SCHOOL GROUNDS
Collins & Blaha, P.C. successfully defended Ann Arbor Public Schools (“AAPS”) in an appeal filed by Michigan Gun Owners, Inc. challenging board policies banning weapons on school grounds. These board policies were enacted under the Revised School Code to protect the safety and welfare of students and to minimize disruption to the educational environment. Previously, the Washtenaw Trial Court granted the Ann Arbor Public Schools’ motion for summary disposition and upheld the three policies as lawful. This ruling was in direct contradiction to a ruling in a suit filed in Genesee County Circuit Court by Michigan Open Carry, Inc., where the judge ruled that a parent with a concealed pistol license may open carry a pistol in Clio Area Public Schools, including in an elementary school building.
The Court of Appeals issued two published opinions on Thursday, December 15, 2016, upholding Ann Arbor Public Schools and Clio Area Schools’ policies prohibiting weapons on school property as lawful. The opinion upholding Clio Area Schools’ policies was a unanimous per curiam opinion. Judge Elizabeth L. Gleicher authored the unanimous opinion upholding Ann Arbor Public Schools’ policies. Judge Gleicher held that the District’s policies did not directly conflict with state law and were not preempted by state law. Michigan Gun Owners relied upon a prior appellate court decision where a library was deemed to be preempted by state law from regulating any restriction on firearms. Judge Gleicher distinguished schools from that decision, stating that there are “distinct differences between local units of government and school districts” and concluded that schools were not preempted by state law. Additionally, although firearms are pervasively regulated in Michigan, a school district’s policy prohibiting possession of guns on school grounds is consistent with the Legislature’s intent to maintain weapons free school zones. Judge Gleicher further opined that “firearm policies consistent with the ‘weapon free school zone’ concept are unobjectionable.”
At this time, the Court of Appeals ruling permits school districts to enact policies prohibiting possession of firearms on school property. However, Michigan Gun Owners, Inc. and Michigan Open Carry, Inc. may appeal this decision to the Michigan Supreme Court. Should you have additional questions or concerns, please do not hesitate to contact our office.
To read the full decision in Michigan Gun Owners, Inc v Ann Arbor Public Schools, click here.
To read the full decision in Michigan Open Carry, Inc v Clio Area Public Schools, click here.
Window for Appealing Educator Evaluation Data in the REP
From September 1 to December 1, 2016, school districts and public schools academies (“PSAs”) will have the opportunity to correct any incorrect educator evaluation data submitted in the Registry of Educational Personnel (“REP”). It is important that the REP reflects educators’ accurate evaluation outcomes now that teacher certification renewal is linked to evaluation data for the most recent five-year period, pursuant to Public Act 173 of 2015. Beginning August 19, 2016, educators will be able to view their evaluation data for the past five years via the Michigan Online Educator Certification System. Starting September 1, 2016, school districts and PSAs may submit appeals in the REP on evaluation data submitted for any of the past five years. The Michigan Department of Education (“MDE”) recommends that school districts and PSAs “review the overall data quality of their past educator evaluation submissions to the REP and ensure that current and future REP submissions are accurate at the time of entry.” In addition, school districts and PSAs should inform teachers about the appeals window to help identify individual cases of error in the evaluation data. To read MDE’s guidance, click here.
New Law Requires Instruction on Genocide
Beginning with the 2016-2017 school year, school districts and public school academies must ensure that their social studies curriculum for grades 8 to 12 includes age- and grade-appropriate instruction about genocide. The instruction must include, but is not limited to, the Holocaust and the Armenian Genocide. Public Act 170, signed by Governor Snyder on June 13, 2016, recommends that schools provide a combined total of 6 hours of this instruction during grades 8 to 12. MCL 380.1168.
The new law also creates a governor’s council on genocide and Holocaust education, consisting of 15 appointed members having particular interest or expertise on the subject, as a temporary advisory commission. The law requires the council to secure private funding for itself and provides that State funds cannot be used for the council’s operations. The law also requires the State Board of Education ensure the recommended model core academic curriculum content standards for history for grades 8 to 12 include learning objectives concerning genocide. Finally, the law requires the Superintendent of Public Instruction to ensure state assessments, such as the M-STEP, include questions related to learning objectives concerning genocide, beginning with the 2016-2017 school year. To read Public Act 170 of 2016, click here.