State, religious school advocates clash over public aid before Supreme Court

Beth LeBlanc
The Detroit News

Public school advocates urged the Michigan Supreme Court Tuesday to strike down payments by the Michigan Legislature to nonpublic schools, arguing that they violate a constitutional amendment approved by voters in 1970 that prohibits public dollars from going to private schools. 

Attorney General Dana Nessel's office and public schools groups argued that the 1970 constitutional ban is not discriminatory because it bars public funding for all nonpublic schools — not just religious ones. 

"Michigan’s constitution does not distinguish between private secular and private religious schools. And that’s an important point," said Assistant Attorney General Eric Restuccia, noting that other similar bans, known in many states as Blaine amendments, that have been struck down were tailored toward religious schools. 

State of Michigan Supreme Court seal in The Hall of Justice in Lansing.

But nonpublic schools such as Immaculate Heart of Mary in Grand Rapids argued the amendment was tailored to Catholic schools, noting one of the plaintiffs in the case called itself the "Council of organizations and others for education about parochiaid," referring to aid for parochial or parish schools. 

The 1970 amendment, or Proposal C, should be struck down in its entirety as a "religious gerrymander," said John Bursch, an attorney for the Grand Rapids school that acted as a group of interest in the case.

"Even in the text itself, the electorate and those supporting proposal C were directing their animus at religious schools," Bursch said. 

Restuccia dismissed Bursch's arguments. Voters not only passed Proposal C in 1970 but also defeated ballot proposals in 1978 and 2000 to create state voucher programs for parents seeking to educate their children at nonpublic schools, he said.

"The idea that’s motivating the electorate at these three different instances is an effort to protect the resources of the public schools,” said Restuccia, who represented Gov. Gretchen Whitmer and the Michigan Department of Education.  

Justice Megan Cavanagh also pushed back on Bursch's arguments, noting it was voters — not a state official or governing body — who put the funding ban in place. 

"Do we have to attribute a discriminatory intent to the voters?” asked Cavanagh, a Democratic-nominated candidate who won election in 2018. 

The suit dates to 2016, when Michigan's GOP-led Legislature allocated $2.5 million to reimburse nonpublic school for more than 40 state mandates with which the schools must comply, such as background checks for teachers, fire drills and inspections. 

Justice Megan Cavanagh

Public school advocates sued the state in 2017 over the appropriation, which grew to $5.25 million with additional allocations between 2016 and 2018. None of the money has been spent while the case is pending. 

Court of Claims Judge Cynthia Stephens called the funding unconstitutional in April 2018. But a divided state Court of Appeals panel ruled the spending constitutional in October 2018, when it decided the state could reimburse "incidental costs" that didn't result in "excessive religious entanglement."

At that time, Republican Attorney General Bill Schuette supported the allocation in court. But the legal position switched under Nessel, a Plymouth Democrat, and Whitmer's leadership in 2019. 

The Michigan Supreme Court took up the appeal in October 2019. Republican-nominated Justice Stephen Markman noted at the time that a ruling in favor of the funding "would perhaps be in tension with the Establishment Clause" of the U.S. Constit and a ruling against the funding "would perhaps be in tension with the Free Exercise Clause."

Justice Beth Clement recused herself from the case Tuesday since she was chief legal counsel to former Gov. Rick Snyder, who approved the initial spending but asked the Supreme Court for an advisory opinion in 2016. The court declined at the time.

The 1970 constitutional amendment prohibited all money to aid or maintain nonpublic schools, with a specific exception for the transportation of students to and from school. 

But Len Wolfe, attorney for the Michigan Catholic Conference and other groups supporting the funding, argued the Legislature's appropriations were a "reimbursement," not money to aid or maintain the schools. 

"They are not used for tuition support," Wolfe said. "They are not used to pay reimbursement for nonpublic school teaching or education services. And they are not used for educational materials that are primary and essential to a nonpublic school’s existence.”

Justice Brian Zahra questioned whether the constitutional provision would be considered discriminatory if every nonpublic school were a religious school. Phillip DeRosier, a lawyer for the public school groups opposing the funding, agreed it would be considered discriminatory under past U.S. Supreme Court rulings.

Michigan Supreme Court  Justice Brian K. Zahra hears a case.

But when Zahra, a Republican-nominated justice, asked if the finding of discrimination would be the same if 99% of schools were religious schools, DeRosier argued the funding ban would not be discriminatory.

"Disparate impact alone is not enough to find that there was discriminatory intent," DeRosier said.