Michigan private schools get state aid for mandate compliance, high court rules

Beth LeBlanc
The Detroit News

In a split decision, the Michigan Supreme Court on Monday upheld a legislative appropriation to reimburse nonpublic schools for state-mandated practices, funding that had been opposed by public schools advocates. 

GOP-nominated Justices Stephen Markman, Brian Zahra and David Viviano said the appropriation complied with both the religious clause of the First Amendment of the U.S. Constitution and a 1970 state constitutional amendment that bans public funding to private schools. 

Because the legislative appropriation "does not appropriate funds for nonpublic-school education services," it remains in compliance with the 1970 amendment, the three justices wrote. Supporters had argued the appropriation was "reimbursement" — not the funding or aid banned by the 1970 amendment.

The 3-3 deadlock affirmed a Court of Appeals opinion that found the appropriation constitutional and sent the case back to the Court of Claims to consider the issue in light of the high court's opinion.

The appropriations, Markman wrote, only address the "health, safety, and welfare" mandates imposed on nonpublic school students, not the educational services banned from funding by the 1970 amendment.

"...They merely mitigate the effect of burdens imposed in the first place by the state for the health, safety, and welfare of nonpublic-school students," wrote Markman, who is forced by state law to retire at year's end. 

The Court of Appeals had ordered the Court of Claims to discern the constitutionality of each reimbursable mandate by considering whether it was “incidental” to teaching and educational services, whether it provided a “primary function” to further a nonpublic school’s operation and whether it fostered “excessive religious entanglement.” The Supreme Court ordered the Court of Claims to employ this test moving forward.

"The Court of Claims shall address whether the Department of Education has improperly administered the statute by purporting to reimburse schools for educational services, contrary to Proposal C," Markman wrote.

Democratic-nominated Justices Megan Cavanagh, Bridget McCormack and Richard Bernstein wrote that they would have ruled the appropriation "clearly" violated the 1970 ban on public funding to private schools. The funding at issue is exactly the kind of "direct" aid prohibited by the 1970 amendment and court precedent, Cavanagh wrote.

"For a nonpublic school, or any other organization in Michigan, complying with general health, safety   and welfare laws is just a cost of doing business," Cavanagh wrote. 

The Michigan Association of Superintendents and Administrators, a plaintiff in the case, criticized the ruling Monday on Twitter. 

"Time after time, the voters of Michigan have made it clear that public dollars should remain in public classrooms," the group wrote. "This ruling, which flies in the face of that intent, is disappointing and we are exploring further legal options."

Voters last rejected a proposed constitutional amendment initiative for school vouchers in 2000. 

The Michigan Catholic Conference, which filed an amicus brief in the suit, praised the decision. The group urged the Court of Claims to complete its ordered review of the funding quickly so schools could get their reimbursements.

"We believe that every student in Michigan should be treated equally in terms of health and safety, regardless if they attend a public or nonpublic school," said David Maluchnik, vice president for communications for the conference.

The decision does not appear to pave the way for vouchers or broader public funding of private schools. Michigan voters have rejected ballot initiatives for vouchers since the non-public school funding ban was approved by voters in 1970.

But the ruling opens a narrow exception for school services that the state government requires private or nonpublic schools to provide to their students. 

Republican-nominated Justice Beth Clement recused herself from the case because of her role in former Gov. Rick Snyder's administration. The appropriation had been authorized during his tenure.

The suit stemmed from a $2.5 million appropriation in 2016 from the Michigan Legislature to nonpublic schools to reimburse private schools for more than 40 state mandates with which the schools were ordered to comply, including background checks for teachers, fire drills, attendance keeping, immunization records and inspections. 

Public school groups sued the state over the first appropriation in 2017, pausing the disbursement of the money. But the GOP-led Legislature continued to allocate money for the reimbursement, growing the total to $5.25 million between 2016 and 2018. 

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."

Public school advocates argued before the Supreme Court in November that the payments from the Michigan Legislature to nonpublic schools violate a constitutional amendment approved by voters in 1970 that prohibits public dollars from going to private schools. 

Lawyers supporting the appropriation have said the Legislature's appropriation was more of a "reimbursement" than money or aid prohibited under the 1970 constitutional amendment. 

When the suit was initially filed, then GOP Attorney General Bill Schuette supported the appropriation to nonpublic schools, but the state's legal position changed under Democratic Attorney General Dana Nessel in 2019.