Education Law Center filed an amicus curiae (“friend of the court”) brief earlier this month in a crucial case before the Michigan Court of Appeals challenging a law that would redirect public education funds to private schools. The challenged statute, which was found unconstitutional and blocked by the lower court, would divert $2.5 million a year from the State’s appropriation of public school funding to reimburse private schools for a wide array of expenses.
Several Michigan entities filed the lawsuit, Council of Organizations and Others for Education About Parochiaid (CAP) v. Michigan, alleging violations of state constitutional provisions prohibiting public aid to nonpublic schools and requiring a two-thirds majority vote of the Legislature to appropriate public funds for private purposes. The legal team representing the plaintiffs includes the ACLU of Michigan and the firm White Schneider.
After entering a preliminary injunction blocking the law, Court of Claims Judge Cynthia Stephens ruled in April 2018 that the statute violated the plain language of Article 8, § 2 of the Michigan Constitution. This constitutional provision, approved by voter referendum in 1970, prohibits the use of public funds to “directly or indirectly” support private schools. Judge Stephens found that the statute “effectuate[s] the direct payment of public funds to nonpublic schools” and “supports the employment of nonpublic school employees.” The State then appealed Judge Stephens’ ruling.
ELC’s amicus brief provides the appeals court with historical context demonstrating that Michigan voters intended to protect the funding of public education and improve the quality of their public school system when they approved the constitutional ban on public funds for private schools.
The amicus brief also highlights the persistent underfunding of Michigan’s public schools and the widening disparities in student performance, as demonstrated by the State’s own studies. Michigan fails to equitably allocate funding and resources to state public schools, with at-risk students, including economically disadvantaged students, English language learners, and students with disabilities, experiencing the most inequitable funding and the lowest academic outcomes.
The amicus brief argues that the challenged statute will exacerbate the underfunding of Michigan public schools by diverting already inadequate funding from public schools to reimburse private school expenses in some of the same categories in which public schools are struggling to meet basic requirements.
Other states have enacted similar laws authorizing “nonpublic school aid” to reimburse private schools for a wide variety of expenditures. In New Jersey, for example, the Legislature allocates over $110 million in public funds in the annual state budget to pay for textbooks, security, nurses and remedial programs in private and religious schools. New York recently enacted a law to reimburse private schools for the salaries of STEM (science, technology, engineering and math) teachers.
“Michigan’s public school funding is protected by the constitutional firewall between public tax dollars and private education,” said ELC Executive Director David Sciarra. “It is crucial that the courts not allow the diversion of any funds from Michigan’s chronically and severely underfunded public schools.”
ELC was represented as amicus pro bono by the law firms Paul Weiss and Salvatore Prescott & Porter. As the nation’s legal defense fund for education rights, ELC advocates for fair and adequate public education funding and opposes the use of public funds to pay for or support private schools.
Policy and Outreach Director
973-624-1815, x 24
Director of Policy, Strategic Partnerships and Communications