By Wendy Lecker
In a decision flouting a clear ban in Michigan’s constitution, an appeals court has upheld a 2016 statute permitting the diversion of public school funds to reimburse expenditures in private schools. The ruling in Council of Organizations & Others for Education about Parochiaid v. State may be appealed to the Michigan Supreme Court.
Education Law Center filed an amicus, or “friend of the court,” brief on behalf of plaintiffs, a coalition of organizations supporting Michigan public schools.
In 1970, Michigan voters, by popular referendum, amended the State constitution to prohibit any funds or property from being appropriated or paid “to directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school.” The provision also prohibited any payments to directly or indirectly support the attendance of any student or the employment of any person at such a nonpublic school. As the Michigan Supreme Court found in 1971, a year after the adoption of the provision, the clear purpose of the amendment law was “no public monies to run [nonpublic] schools.”
Despite this express ban, the Michigan legislature enacted a law in 2016, which authorized the use of $2.5 million from Michigan’s general fund for public schools for each of the 2016–2017 and 2017–2018 school years “to reimburse actual costs incurred by nonpublic schools in complying with a health, safety, or welfare requirement mandated by a law or administrative rule of this state.” MCL 388.1752b(1). The costs, to be paid directly to nonpublic schools, cover a wide range of expenses, from the licensing of teachers and other professionals to background checks and compliance with other mandates necessary for the operation of nonpublic schools.
The lower court struck down the law as a clear violation of the plain language of the constitutional ban. The court held that the direct payment to nonpublic schools of public funds to cover the costs of complying with mandates without which the nonpublic schools could not operate rendered the statute unconstitutional on its face.
In a 2-1 ruling, the Michigan Court of Appeals reversed the lower court decision. The majority held that since the funding provided under the law was (1) incidental to teaching in the nonpublic schools, (2) not the “primary function or element necessary for a nonpublic school to exist, operate, and survive,” and (3) does not involve or result in excessive religious entanglement, the law did not violate Michigan’s constitutional prohibition against funding for nonpublic schools.
In a strongly worded dissent, Judge Elizabeth L. Gleicher contended that the majority created “a test of its own making” to carve out a tortured exception to the “resoundingly clear Constitutional language forbidding direct aid.”
A basic principle of judicial interpretation is to start with the common understanding of the language in the constitutional provision in question. If the language is ambiguous, then a court must look to the circumstances surrounding the adoption of that constitutional provision. Judge Gleicher declared that not only did the majority’s decision contradict the plain language of the constitution, it also “contradicts the people’s will and the well-understood words they approved” in the voter referendum.
Judge Gleicher also wrote that the majority’s ruling conflicts with the 1971 decision in Traverse City School District v. Attorney General. In that decision, the Supreme Court allowed for payments for “shared time” and “auxiliary services” that were already being provided to nonpublic school students by public school districts. Under the new law, the funds are paid directly to the private schools for expenses that are not incidental, but to defray the cost of expenditures necessary for the operation of the schools.
As ELC emphasized in its amicus brief, the backdrop of this case is the well-documented chronic underfunding of Michigan’s public schools, especially in Detroit and other districts with high concentrations of low-income students, English language learners and students with disabilities. A stark example of Michigan underfunding can be seen in Flint, where ELC, along with the ACLU of Michigan, has sued the state in federal court over the extreme lack of teachers, support staff, programs and services required for special education in a district where the need will grow in the wake of the lead crisis.
This case also underscores the need to oppose vouchers that divert public funds to private schools in whatever form they take. In recent years, states have adopted voucher programs that go beyond the traditional “scholarship” funded with direct state appropriations. These include tax credit funded “scholarships” to low-income students, students with disabilities and, recently in Florida, students who allege they’ve been bullied in school. Another program provides so-called “education savings accounts,” where public funds are deposited to pay for private school tuition and other private education expenditures. The Michigan statute at issue in the Council of Organizations case is similar to the appropriation of public funds to reimburse private schools for health and safety expenditures and also, as in New Jersey and New York, to pay for textbooks, security, STEM teachers and other operational expenses.
Wendy Lecker is a Senior Attorney at Education Law Center
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