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Michigan Constitution is clear: No state aid to private schools

Jul 10, 2017

The Michigan Court of Claims is not one of the highest-profile judicial bodies in the country, or even our state. It handles civil actions filed against the state and its various departments and agencies.

But that court is getting a lot more attention these days, because of one case with blockbuster implications. Last year, the Michigan Legislature passed a $2.5 million budget appropriation to reimburse private schools for non-educational things the state requires, like playground inspections.

The American Civil Liberties Union and a number of education-related groups believe spending public money for anything having to do with private schools violates both the U.S. and Michigan Constitutions – and have filed suit in the Court of Claims.

Last week, the judge handling the case, Cynthia Diane Stephens, extended a temporary freeze on those payments. Judge Stephens indicated she will decide whether to continue or lift the freeze by August 1.

However, it seems to me that this really is a case that could have been decided pretty much immediately. Both the state constitution and the voters are on record as saying this would be illegal. No taxpayer dollars can ever be used to support private schools in any way.

Both the state constitution and the voters are on record as saying this would be illegal.

Here’s a little background: Back in 1970, the governor and the Legislature decided the state should provide some support to private schools. They passed a law doing just that. The only restriction was that the money could not be used for instruction in religious subjects. That was upheld by the state supreme court. But a coalition of forces swiftly came together to oppose what they called “parochiaid.”

They noted that specifying that this money couldn’t be used for religious instruction was meaningless, since by picking up the tab for nonreligious expenses, the state was in fact leaving the schools more money for religious instruction.

Those opposing "parochiaid" quickly collected signatures and got a state constitutional amendment on the ballot. And that November, a solid 57% of the voters chose to make any aid to private schools clearly unconstitutional.

They amended the constitution to say:

No public monies or property shall be appropriated or paid … by the legislature or any other political subdivision or agency of the state, directly or indirectly to aid or maintain any private, denominational, or other private, pre-elementary, elementary or secondary school. No payment, credit, tax benefit, exemptions, deduction, tuition voucher, subsidy, grant or loan of public property shall be provided, directly or indirectly to support … any such private school.

The full amendment is actually longer, but it’s clear that Judge Stephens should rule the appropriation fully unconstitutional, and send the lawmakers a message saying, “What part of 'no' don’t you understand?”

Now, those in favor of providing the funding to religious schools are pinning their hopes on a U.S. Supreme Court decision last month that said taxpayer-funded grants for playgrounds in Missouri couldn’t be denied to a school run by a church.

But Chief Justice John Roberts expressly said the ruling only applied to discrimination in playground resurfacing, period. We don’t know how the Supreme Court would rule in the Michigan case, but the state constitution is clear.

Providing any aid to private schools is illegal in this state, and it is hard for me to imagine a judge ruling any other way.

Jack Lessenberry is Michigan Radio’s Senior Political Analyst. Views expressed in his essays are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.