Private school funding prompts legal fight

Jonathan Oosting
Detroit News Lansing Bureau

Lansing – Michigan school groups and unions plan legal action to try to block $2.5 million in private school aid included in next year’s state budget, arguing the mandate reimbursement is unconstitutional.

The Michigan Association of School Boards and Michigan Association of School Administrators are among the groups discussing the potential litigation. They fear the state aid presents a slippery slope toward school vouchers.

“We’re very seriously thinking about the strategy for challenging this really unconstitutional allocation of public dollars to private schools,” said David Hecker, president of the Michigan chapter of the American Federation of Teachers.

The American Civil Liberties Union of Michigan is part of the talks but has not decided whether it would join a coalition lawsuit.

The $2.5 million general fund appropriation is intended to help parochial and other non-public schools cover costs associated with state mandates identified in a 2014 report prepared by the Michigan Department of Education, as required under a separate law.

Mandates listed in the report include student health and safety requirements, such as immunization compliance and fire drills, but also educational requirements such as mandatory government history and civics courses.

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 the budget bill “is internally inconsistent” and would still allow unconstitutional reimbursement for mandated civics classes, according to an opinion letter from the Dickinson Wright law firm prepared for the Michigan Association of School Administrators. It was forwarded two weeks ago to Gov. Rick Snyder.

David Maluchnik of the Michigan Catholic Conference called the Dickinson Wright analysis an “erroneous assessment of the legislation,” indicating legal counsel has told his group the budget language “is good public policy” and does not violate any constitutional provisions.

“The language in (the budget) does not specifically look to reimburse for every mandate identified in the 2014 MDE report, and it specifically says it’s not for education,” Maluchnik said. “…I think we should be taking a hard look at the bill that the governor actually signed.”

In signing the education budget Tuesday, Snyder acknowledged legal questions surrounding the appropriation and told reporters he is considering ways to address the uncertainty, including a possible request for an advisory opinion from Attorney General Bill Schuette.

“I was a bit confused,” said MASA President Chris Wigent, referring to the governor’s signing ceremony comments. “He certainly could have line-item vetoed this and taken a more careful approach here because it didn’t have to be part of the budget.”

The 2014 Department of Education report identified more than 40 state mandates that apply to non-public schools. The Michigan Catholic Conference has estimated that compliance costs private schools about $100 per student each year.

More than 100,000 Michigan students attend non-public schools, so the total bill could top $10 million annually — four times the new state appropriation.

Private schools are unlikely to be reimbursed for the full compliance costs, but the appropriation is still important, said Brian Broderick, executive director of the Michigan Association of Non-Public Schools, which represents Catholic, Lutheran and other Christian schools across the state.

“It’s a significant recognition by state government that all non-public schools are really serving a public function by serving the children and ensuring their health, safety and welfare,” Broderick said.

Some state funds already support private schools that share services or teachers with public schools. Private schools have recently won state grants to improve building security and safety.

But critics say the new appropriation goes too far, even if it is only $2.5 million in a $16.14 billion education budget.

“Whether this would have been $200,000 or $200 million doesn’t matter,” said Don Wotruba of the Michigan Association of School Boards. “To us, it’s really a constitutional question about money going into private schools.”

The association was among the groups that fought a 2000 ballot proposal that would have amended the state Constitution to create a tuition voucher system allowing public dollars to follow students to non-public schools. Voters rejected the proposal by more than a 2-to-1 margin.

“Clearly this isn’t vouchers,” Wotruba said of the private school mandate reimbursements, “but it’s really about the principle of what our Constitution says.”

Hecker questioned whether the $2.5 million appropriation could be a “foot in the door” for future private school funding attempts.

“I think private schools are fine institutions, be they parochial or not, but they should not get public dollars,” he said.

The ACLU of Michigan has discussed potential litigation with the public school groups, but legislative liaison Shelli Weisberg said legal action may be premature because the state has not yet spent any of the money.

The budget calls for the Department of Education to create by January a reimbursement form that lists previously identified mandates, and schools will have until June 2017 to submit their requests.

“At this point, we’re looking at how this is going to work and how the money is going to be distributed, if it’s going to be,” Weisberg said, noting that public schools do not receive extra compensation when the state Legislature adds a new mandate.

“It’s a little bothersome to see, especially at a time when clearly our public schools that taxpayers support are in deep trouble. We think that public funds should be going to public schools.”