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Taxpayer money directed to private schools is clearly unconstitutional

Oct 7, 2016

Here’s what the Michigan Constitution says about state aid to private schools:

No public monies or property shall be appropriated or paid or any public credit utilized, 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 nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students.

That’s about as clear as could be.

Or, as they say, "What part of 'no' don’t you understand?"

The only exception the Constitution allows is that, "the legislature may provide for transportation to or from any school."

This language wasn’t in the original 1963 constitution, but things changed after the Legislature passed a law in 1970, seven years after the state constitution was adopted, to provide direct financial aid to certain private schools.

The Michigan Supreme Court also upheld that law, but angry voters collected signatures and got a constitutional amendment on that year’s ballot to outlaw what was then called “parochiad.”

Voters overwhelmingly passed it, and inserted the language I’ve just quoted into the state constitution, which seemed to settle the issue.

The state budget, which took effect October 1, includes $2.5 million to reimburse private schools for the cost of meeting state health and safety requirements.

But evidently not as far as Governor Rick Snyder and the current Legislature are concerned. The state budget which took effect October 1 includes $2.5 million to reimburse private schools for the cost of meeting state health and safety requirements.

The governor claimed this was in fact constitutional, because the money wouldn’t be going to “instructional purposes” – to actually educate kids.

However, plenty of people strongly disagreed. The governor then sensibly asked the state’s highest court for an opinion as to whether this was constitutional, preferably before the budget took effect.

Others agreed having the court weigh in was a good idea.

The court, however, did something surprising – they refused to issue any opinion, saying, “we are not persuaded that granting the request would be an appropriate exercise of the court’s discretion.”

That left both sides claiming opposite things.

A spokesman for the Michigan Catholic Conference said that since the high court “did not find the funding unconstitutional as the opponents had argued … nonpublic schools are entitled to funding.”

But Don Wortuba of the Michigan Association of School Boards said - not so fast. He noted that the court had said nothing about the constitutionality issue.

What’s certain now is that lawsuits will follow, and the Michigan Supreme Court will be forced to eventually rule on this.

I’m not an attorney, but I asked Jack Faxon, one of the last surviving delegates to the convention that wrote the Constitution, what he thought.

Faxon, who went on to the state Senate and later owned a private school of his own, said it was clear that aid to private schools of any kind was meant to be unconstitutional, especially after the 1970 amendment.

“That was voted on by a majority of the people … and can’t be amended by the Legislature,” he told me.

In other words, if we now want to change that, passing another constitutional amendment is the only fair and reasonable way to go.

Jack Lessenberry is Michigan Radio's 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.