Clarifying the issues in the Caledonia anti-masking and Kallman proposals

Dear trustees of Caledonia Community Schools,

I have seen some of the replies that board president Tim Morris is sending to some who have written to the board expressing opposition to the masking policy and the “constitutional law firm” proposal. Those replies are useful for clarifying several points.

The district’s responsibility to students is to educate them, not to throw saddles onto their backs so that out-of-town partisan activists can ride them to victory (or defeat) in a political campaign.

1. Tim is right that the proposed policy is not a ban on face masks. It is, rather, a statement to parents that they have the right to opt their kids out of wearing masks if the public health authorities require them again. But if the actually and legally competent public health authorities require a measure, this school board cannot arrogate to itself the authority to permit parents to opt out of compliance. The Caledonia school board has no business promising parents that it will violate or seek to abrogate state law or will ignore or override sound medical, epidemiological, or legal counsel. Nor does it have any business encouraging parents to do any of those things. Setting policy regarding appropriate protection and mitigation measure in the event of a public health crisis does not fall within the purview of a board of education in the State of Michigan.

2. Tim is right that it is sometimes prudent to seek a second opinion in a consequential legal matter. Speaking generally, however, it is not prudent, when you receive competent legal counsel from conventional, apolitical law firms with solid experience in education-related matters, but which counsel happens not to suit your mood or your personal political proclivities, to seek an opinion from another law firm that you already know will be willing to give an opinion that tickles your ears. In particular, it is not prudent to seek advice from a partisan-activist law firm, and especially one with the reputation that Kallman Legal has accrued. When the Ottawa Impact movement hired Kallman, the fees they paid to Kallman, though massive, were dwarfed by the damages they ended up paying to others as their penalty for following Kallman’s bad counsel. Of course the money came from the people of the county, not from the Impact leaders who brought these troubles.

UPDATE: 2b. I am reliably informed that when Tim Morris refers to getting a “second” opinion, he should say at least “fifth.” The board has previously received at least four separate and concurring opinions on the matter. And the district already has three attorneys approved for use if they want a second opinion (or a third) on any matter. Three law firms were approved in the January meeting as part of the consent agenda. (See item 8a on page 2 of the minutes: https://www.calschools.org/downloads/board_of_education/01.27.25_approved_minutes.pdf.)

3. Tim has indicated that Kallman would not be put on retainer but would be paid only on a per-case basis. (I don’t think he has named Kallman in his recent overtures and statements, but we know that he has tried in the past to get the board to sign an arrangement with Kallman, so I think we have every reason to believe that when he says “constitutional law firm” he means Kallman.) That’s better than I feared: I thought the plan would be to put them on retainer. But even paying them on a per-case basis could be costly, and certainly would be costly if following their advice ended up embroiling the district in litigation. That could happen in various ways. The district might sue to overthrow existing laws. Or a group of parents might sue the district if the district adopted the policy that Tim proposes. Or parents or other parties might eventually sue the district for damages occasioned by the district’s acting in accord with Kallman advice. (For example, if a student or a family member of a student were to die, become disabled, or suffer serious illness because the district permitted other students to spread an infectious disease by noncompliance with a masking requirement or some other requirement, the district might have to defend—and might lose—a lawsuit seeking large-dollar damages.)

4. I suspect that getting the district involved in litigation is probably not Tim’s intent but probably is the intention of Kallman Legal and perhaps also of whoever (Angela Rigas, I suppose) has planted with Tim the idea of bringing Kallman into the Cal district. Kallman is a politically active law firm that would like to change existing laws by challenging them in court on constitutional grounds. But Kallman does not on its own have standing to bring such lawsuits. It needs clients that have standing. A school district that is obliged to abide by a law that Kallman does not like would be the ideal client for Kallman to use in a court challenge to that law. But it is not advantageous to the school district to allow itself to be used as an instrument in Kallman’s pursuit of its political objectives. The district’s responsibility to students is to educate them, not to throw saddles on their backs so that the Kallman brothers can ride them to victory (or defeat) in a political campaign.

Those who wish to change state and county laws and policies should work through legislative channels to change them. If they succeed, the laws and policies will then be changed, and this school district should abide by those new laws and policies.

5. To the extent that I understand them, the laws and policies that required Cal Schools to comply with state and county directives during the Covid crisis are in my opinion good laws and policies. I understand that not everyone agrees. Maybe some of the laws and policies could be better. But those who wish to change those laws and policies should work through the legislative channels to change them. If they succeed, the laws and policies will then be changed, and this school district will abide by those new laws and policies. That’s how this should work. But what I see happening here is that someone, or some political faction, wishes to use votes of the Cal school board to change county and state laws and policies that the school board is not empowered to change. And that person or faction has somehow convinced Tim Morris to use his position on the school board to advance their interest. They want him to persuade you to offer up this school district to Kallman Legal as a tool in that firm’s prospective efforts to challenge those laws and policies in court. So it seems to me.

6. Tim has said more than once that neither he nor anyone else on this board wants the district to violate national, state, or county law. That may be true. I would ask him to assure us that the board will not enter into litigation with the intent of challenging state or county laws or policies. I don’t think he can give us that assurance, because the only possible reason for wanting to engage a constitutional law firm is to look for ways of mounting constitutional challenges to existing laws. In other words, that word constitutional is itself the tell: it tells us that the intent is to involve the district in litigation aimed at invalidating laws. Granted, that’s not the same as involving the district in violating laws. But it might be just as expensive and is in my opinion almost equally inappropriate.

This is why I am unpersuaded by Tim Morris’s arguments, and this is why I urge you—all of you—to reject them. You, as individual members of this board, are, like every citizen, entitled to your political opinions, be they rightist, leftist, or centrist. You are entitled, as a private citizen, to vote for legislators who will pass laws that you like. But you are not entitled to use your place of trust in this school district to make the district a tool in someone’s plan to use litigation to overthrow national, state, or county laws, regulations, or policies that they, or you, dislike. Doing that would be a disservice to our students, their parents, and our district’s teachers and staff. I don’t think most of you would wish to abuse the trust voters placed in you in that way.

Sincerely yours,

James Ernest

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UPDATE: Here are PDFs of the two policies that Tim Morris sent first to school board members and is more recently sending to some members of the public who write to the school board. I don’t know anyone who thinks Tim wrote these himself. My guess is that they were written either by or with the assistance of Kallman Legal.

Here is a PDF of the proposed masking policy:

 And here is a PDF of the proposal to add a “constitutional law firm” (meaning, Kallman Legal):