Parents challenge Michigan's ban on public funds for nonpublic schools

Beth LeBlanc
The Detroit News

A group of Michigan parents are suing the state in federal court over a constitutional amendment that prevents them from using tax-incentivized education savings to send their kids to private schools. 

Five sets of parents represented by the Mackinac Center Legal Foundation and conservative attorney John Bursch want to use money from their Michigan's Education Savings Plan to put their kids in private schools. 

Parents get an income tax deduction when they make a contribution to the Michigan Education Savings Plan. The savings plan usually is used for higher education expenses but the 2017 federal Tax Cuts and Jobs Act expanded the program so it could be used for public, private or religious K--12 schools.

However, Michigan's Blaine Amendment appears to run counter to the 2017 expansion since it prohibits the use of public funds, including any "tax benefit," to pay for nonpublic school expenses, the parents said in their lawsuit. If the parents use the savings funds for nonpublic school tuition, the amendment would "force them to reverse the Michigan tax deduction they received" at the time they made the contribution.

"Michigan's constitution prevents plaintiffs from enjoying the current state-tax benefits if they use their 529 (Michigan's Education Savings Plan) accounts for private, religious K-12 tuition as federal law allows," the lawsuit said. 

In a statement Friday, the Mackinac Center said the case, if successful, could change "the whole playing field."

“The shutdown and disruption of many public schools since the spring of 2020 shows just how important it is that families across Michigan can have the flexibility of using their education funds to provide their children with the best opportunity to succeed," said Ben DeGrow, education policy director for the Mackinac Center.

The suit asks the court to declare Michigan's Blaine Amendment unconstitutional and stop the state from demanding a tax cut refund from people who use their education savings for private K-12 education. The suit argues that a U.S. Supreme Court opinion on a Montana case "paved the way for more families to benefit from programs that fund the choice of K-12 private or public schools."

The parents are from Kalamazoo, Royal Oak, Milford, Charlotte and Grand Rapids and are members of the nonprofit Parent Advocates for Choice in Education Foundation.

The Blaine Amendment was put in place in 1970 by voters motivated by an "anti-religious ballot sponsor," the lawsuit said. The parents argued the enforcement of the Blaine Amendment violates the free exercise clause of the federal Constitution. 

"While prohibiting any public funding or tax deductions to benefit students attending religious schools, Michigan allows MESP tax-advantaged funds to be used to pay for public-school tuition," the lawsuit said. 

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

The suit comes nearly 10 months after the Michigan Supreme Court in a split decision upheld a $2.5 million legislative appropriation to reimburse nonpublic schools for state-mandated practices. 

In a 3-3 deadlock, GOP-nominated Justices Stephen Markman, Brian Zahra and David Viviano said that because the legislative appropriation "does not appropriate funds for nonpublic-school education services," it remains in compliance with the 1970 amendment.

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.