High court won’t decide private school funding dispute

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — The Michigan Supreme Court is declining to weigh in on the constitutionality of public funding to reimburse private schools for state mandates, rejecting Gov. Rick Snyder’s request for an advisory opinion and leaving the door open for potential lawsuits.

The state’s highest court reviewed briefs from supporters and opponents of a recent $2.5 million state appropriation but said Wednesday justices were “not persuaded that granting the request would be an appropriate exercise of the Court’s discretion.”

Snyder requested the court opinion in July after signing a state budget with funding to help parochial or other private schools cover costs associated with various state requirements, including immunization compliance and safety drills. The new budget year began Oct. 1.

“Given the court’s decision and where we are in the fiscal year, the budget office will need to process the payments as required by state law,” said Snyder spokeswoman Anna Heaton.

The Supreme Court was not obligated to decide the matter, but Snyder noted in his request that advisory opinions can promptly resolve important constitutional questions and help the state avoid “the proliferation of state and federal lawsuits.”

Public school and union groups argue the appropriation violates the Michigan Constitution’s general prohibition on taxpayer funding for private schools and could prove to be a slippery slope toward other forms of state support.

The Supreme Court’s decision to sit out the fight will likely “rekindle” discussions over a potential lawsuit, said Don Wotruba of the Michigan Association of School Boards, who suggested the state would have been better served with an advisory opinion, one way or the other.

“Along with other entities that fight for, stand up for and represent public education, we’re considering what the legal options are,” added David Hecker, president of the Michigan chapter of American Federation of Teachers.

The Michigan Catholic Conference, which advocated for the mandate reimbursement and argues it is fully constitutional, said Wednesday that the lack of action from the state Supreme Court means the appropriation will continue and that private schools are entitled to the funding.

“At this point we look forward to working with the Michigan Department of Education to establish the parameters by which non-public schools will rightfully be reimbursed for complying with health and safety mandates,” Tom Hickson, Michigan Catholic Conference Vice President of Public Policy, said in a statement.

“Michigan Catholic Conference is disappointed in the Court’s decision not to issue an advisory opinion, yet we will continue to support the appropriation and any legal efforts to protect its intent to ensure every student in Michigan is treated equally by the State of Michigan.”

The State Budget Office has gone ahead and allotted $2.5 million to the Michigan Department of Education for potential reimbursement payments, spokesman Kurt Weiss said Wednesday.

The Education Department is required to develop a reimbursement application form by January, according to budget language. Schools must submit requests by mid-June and the state must provide reimbursement by Aug. 15, 2017.

The Michigan Constitution bans any direct or indirect “payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies” to non-public schools. It specifies that state funds can be used to provide transportation to a school of any kind but has usually been interpreted to block state support for educational services at private schools.

The new budget includes language indicating that the private school funds are for purposes “non-instructional in character” and are intended for “ensuring the health, safety and welfare” of students.

But critics contend the appropriation is unconstitutional because it will allow the state to reimburse private schools for mandatory services, including civics classes that all Michigan schools are required to offer.

In signing the budget, Snyder acknowledged legal questions surrounding the appropriation, prompting his request for an advisory opinion.

Such requests are rare but not unprecedented. In 2011, Snyder asked the court to review a so-called pension tax law before it took effect, a request the court granted. Two years later, justices declined to consider a similar request over a right-to-work law.