Snyder seeks court opinion on private school funding

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Gov. Rick Snyder is asking the Michigan Supreme Court to weigh in on the constitutionality of using $2.5 million in public funds to reimburse private schools for state mandates, as planned in the education budget he signed last month.

The request for an advisory opinion could help stave off a potential lawsuit from public school groups, who argue the fiscal year 2017 appropriation violates the Michigan Constitution, which bans most direct or indirect payments to private schools.

The Michigan Catholic Conference and other supporters say the appropriation is constitutionally sound because the budget includes language stating the private school funds are for purposes “noninstructional in character” and are intended for “ensuring the health, safety and welfare” of students.

“Both groups have expressed thoughtful arguments about the constitutional merits of the legislation in question,” Snyder wrote Wednesday in a letter to Chief Justice Robert Young Jr. seeking the opinion before the new budget year begins in October.

Snyder, who has the constitutional authority to request advisory opinions on bills he has signed before they take effect, said a quick court answer to important questions “greatly assists the people of Michigan by avoiding the proliferation of state and federal lawsuits on the same question” and provides certainty before implementation.

It’s not the first time Snyder has requested a state Supreme Court opinion after signing legislation. The court is not obligated to conduct the review.

In 2011, the governor asked the court to review a so-called pension tax law before it took effect in 2012, a request the court granted. Two years later, justices declined to consider a similar request over a right-to-work law.

A coalition of public school groups and employee unions have had meetings to discuss a possible lawsuit over the private school appropriation.

Those groups include the Michigan Association of School Boards, the Michigan Association of School Administrators and the American Federation of Teachers.

The Michigan Constitution bans any “payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies” to nonpublic schools. It says state funds can be used to provide transportation to any kind of school but the language has usually been interpreted to block state support for educational services at private schools.

The $2.5 million general fund appropriation is intended to help parochial and other nonpublic schools cover costs associated with state mandates identified in a 2014 report prepared by the Michigan Department of Education

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

While the budget bill says the funds would not be used for instructional purposes, the law “is internally inconsistent” and may still allow unconstitutional reimbursement for the civics classes, according to an opinion letter from the Dickinson Wright law firm forwarded to Snyder before he signed the budget.

Chris Wigent, executive director of the Michigan Association of School Administrators, said he is confident the Supreme Court will find the appropriation unconstitutional.

“The bottom line is that public funds should go to public schools – it’s in our constitution and it’s the will of the people,” Wigent said in a statement.

The governor told the Supreme Court he received a separate letter from the Catholic Conference, the Michigan Association of Non-Public Schools and other groups asserting that the appropriation is constitutional.

“Prompt review of this question would be greatly appreciated as it will provide needed direction to me, the Legislature, and Michigan residents,” he wrote.