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Lansing — Michigan lawmakers can provide public funding to private schools to cover the “actual costs” of mandates that do not directly support student education, a divided Court of Appeals panel ruled Tuesday in a closely watched case.

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. Plaintiffs, who have argued the funding is a "slippery slope," are considering a possible appeal to the Michigan Supreme Court. 

Court of Appeals Judge Elizabeth Gleicher on Tuesday accused her colleagues of “hijacking” the concept of incidental aid to create a new exception to the “plain language’ in the state Constitution that prohibits direct or indirect aid to non-public schools.

“The public money directly and indirectly assists nonpublic schools in keeping their doors open and meeting their payroll,” Gleicher wrote in a spirited dissent. “It is unconstitutional for that simple reason.”

Michigan Court of Claims Judge Cynthia Stephens ruled on similar grounds in April when she found the budget appropriations were unconstitutional. The legal battle has prevented the state from providing the funding to non-public schools, but lawmakers approved another $2.5 million for fiscal year 2018 and $250,000 for 2019.

Murphy and Letica said Stephens' blanket ruling was an overreach. While some of the mandates may not pass their test, the Court of Appeals judges said funding for compliance with laws regarding criminal background checks, instrument disposal and epinephrine auto injectors is constitutionally permissible.

Criminal background checks for teachers are required by state law and conducted  “for the purpose of ensuring and advancing the safety and welfare of its students, weeding out prospective teachers and other school personnel who might pose a risk of harm to students,” they wrote.

A background check is “merely incidental to teaching and providing educational services to private school students. It does not constitute a primary function or element necessary for a nonpublic school’s existence, operation, and survival, and it does not involve or result in excessive religious entanglement.”

The panel sent the case back down to the Court of Claims to consider the constitutionality of each mandate individually. Should the court conclude a specific cost or action is unconstitutional, it may only strike or preclude that reimbursement without invalidating the entire statute, the majority ruled.

Plaintiffs are considering their next steps in the legal battle after the appeals court panel "gave its blessing" to diverting public funding away from public schools, said Daniel Korobkin, deputy legal director for the American Civil Liberties Union of Michigan.

"This is a law that the Legislature intentionally passed to direct millions of dollars into the bank accounts of private schools," Korobkin said.

But state Rep. Tim Kelly, a Saginaw Township Republican who chairs the K-12 budget subcommittee and pushed to include the funding in recent budgets, said he was "thrilled" by Tuesday's ruling but expects opponents will appeal. 

"There's some sanity that's crept into the court here," he said. "Even though this fight isn't over, I think it's clearly headed in the right direction."

Reimbursing private schools for state mandates is "the right thing to do," Kelly argued. 

"You're not wrapped up in religiosity or whatever," he said. "This is clearly not trying to influence kids other than just trying to pay the costs."

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.

Tuesday's ruling "flies in the face of our state Constitution," said Chris Wigent of the Michigan Association of Superintendents and Administrators. “This is a clear attack on public education by special interests that want to funnel taxpayers’ money away from public school classrooms."

The three-judge appeals court panel that upheld the Republican appropriation included two Democratic appointees. Letica was picked for the court by GOP Gov. Rick Snyder in June. Murphy was appointed by former Gov. Jim Blanchard and Gleicher was picked by former Gov. Jennifer Granholm, both Democrats.

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.

joosting@detroitnews.com

(517) 371-3662

Twitter: @jonathanoosting

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