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The American Civil Liberties Union of Michigan, public education leaders and parent groups filed an appeal Tuesday asking the Michigan Supreme Court to rule the use of public tax dollars to fund private schools unconstitutional.

Dan Korobkin, ACLU of Michigan's deputy legal director, said the state constitution clearly prohibits the use of public funds to fund private schools. State lawmakers must not be allowed to use public school dollars to fund private interests, he said.

"Our constitution could not be clearer on this issue: Public money should only be spent on public schools,” Korobkin said.

The ACLU of Michigan and others sued in March 2017 to prevent the state from diverting $5 million to private schools to reimburse them for complying with health and safety laws.

Court of Claims Judge Cynthia Diane Stephens issued a preliminary injunction against the payments in July 2017, and issued a ruling declaring them unconstitutional in April 2018, ACLU officials said.

But last month, a divided Court of Appeals panel ruled Michigan lawmakers can provide public funding to private schools to cover the “actual costs” of mandates that do not directly support student education.

In a 2-1 decision, judges William Murphy and Anica Letica ruled state funding to reimburse private schools for complying with health and safety laws is not inherently unconstitutional despite a ban on public aid for private education.

The funding must be “incidental” to teaching and providing educational services, cannot support a “primary” function critical to the school's existence and must not involve or result in “excessive religious entanglement,” they said in devising a new three-part test.

Any state law concerning student health, safety or welfare is “almost by definition” incidental to teaching, the judges said.

Public school advocates sued the state in 2017 after the Republican-led Legislature approved a budget with $2.5 million to reimburse private schools for fire drills, inspections and other state requirements.

Steve Norton of the Michigan Parents for Schools, which the ACLU of Michigan represents along with the Detroit-based community organization 482Forward, criticized the diversion of public funds to private schools.

“To divert tax dollars to private schools is an attack on public education and the children who attend public schools,” Norton said. 

Brian Broderick, executive director of the Michigan Association of Non-public Schools, which represents private independent and religious schools that serve about 100,000 Michigan students, said private schools have to follow the same rules as public schools when it comes to mandates for health and safety.

Examples of state mandates that impact both public and private schools include the disposal of mercury, criminal background checks for teachers and employees and stocking EpiPens in schools, Broderick said.

"Private schools are paying out of their pocket for all the requirements that Michigan has," Broderick said. "We believe public schools students and districts are reimbursed through the (per-pupil) foundation (allowance) grant." The foundation allowance is the minimum amount of money per student that the state gives each district.

The Michigan Constitution prohibits the state from appropriating public monies or property to "directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school." 

Courts have interpreted the amendment to bar state support for general educational programs unless the main effect is to further a “substantial” governmental purpose.

Michigan voters approved a general ban on public funding for private education in 1970. The so-called Blaine Amendment to the Michigan Constitution allows the state to provide student transportation to any school but holds that public funding cannot be used "to support the attendance of any student or the employment of any person at any such nonpublic school."

In 2000, state voters defeated by 69-31 percent a ballot proposal to let parents in some struggling school districts use up to $3,100 in public money to pay for their child’s tuition at a private or religious school. The effort was led by Grand Rapids area school choice advocate Betsy DeVos, who became President Donald Trump’s education secretary in 2017.

Voters overwhelmingly defeated a similar voucher proposal in 1978.

Staff Writer Jonathan Oosting contributed.

jchambers@detnews.com

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