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Public funding for private schools under review

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — State legislators, unions, school groups and civil rights organizations on Friday flooded the Michigan Supreme Court with arguments over the legality of a $2.5 million appropriation to reimburse private schools for government mandates.

Gov. Rick Snyder is asking Michigan’s highest court to issue an advisory opinion on the new budget line, which he signed in June, hoping to blunt the prospect of potential lawsuits against the state. The court is not obligated to rule but had requested legal briefs.

Public schools advocates, who have discussed legal action against the state, argue the funding violates Michigan’s Constitution, which generally prohibits the use of public funds “directly or indirectly to aid or maintain” private, parochial or other non-public schools.

The funds are intended to help private schools cover costs associated with state mandates, including safety drills and immunization compliance. Budget language indicated that the funds are intended for “noninstructional” purposes.

Michigan Attorney General Bill Schuette, whose office was asked to brief both sides of the dispute, said the state Supreme Court has consistently recognized the prohibition on public funding for private schools is focused on instruction, not “incidental services.”

Of the 44 mandates in question, only 12 relate to educational requirements, and “even these mandates relate only incidentally to instruction,” wrote Schuette, noting most are for health and safety requirements.

Barring private school funding for measures “that exist separately from the actual provision of instruction or payment of tuition or teacher paychecks, could quite literally deny children the equal protection of the law,” he wrote. “They would not be protected by the police and fire departments created by law, simply because they happened to be at a nonpublic school.”

But the new appropriation is unconstitutional and contradicts the Supreme Court’s 1971 decision that opened the door for funding of incidental and auxiliary services, according to Deputy Solicitor General B. Eric Restuccia.

“Of the more than 40 nonpublic mandates, the statute would directly fund the private schools for all of them, placing the full control over the service in the private school,” he wrote. “This is a threshold point (for the 1971 case) and it poses a hurdle that the statute cannot overcome.”

The appropriation, approved by the Republican-led Legislature with little public debate, is designed to cover state mandates identified in a 2014 report by the Michigan Department of Education, including civics classes that all state schools are required to offer.

Reimbursing private schools for required classes amounts to public funding of classroom instruction, according to critics.

Under the budget, private schools “could request reimbursement for the fundamental costs of teachers’ salaries, textbooks, and other instructional materials for the teaching of these required classes,” according to a brief filed by attorneys for the Michigan Education Association, AFT Michigan, state AFL-CIO and various Senate Democrats.

“Because this mandate is a ‘primary feature of the educational process and a primary element required for any school to exist,’ public monies cannot constitutionally be paid.”

The Michigan Catholic Conference, however, argued the public funds could only be used to reimburse nonpublic schools for confirming they offered the required civics courses, not for actually teaching them. They could accomplish the administrative task by simply completing a form.

“The reimbursement paid by the State is only for the amount of time it takes the person completing the form to confirm the requirement,” the Catholic Conference said in a brief.

“No money is paid to fund constitutional or State government classes at the school; no money is paid to reimburse the nonpublic school for teachers that instruct in such classes; and no money is used to pay for any materials, textbooks or supplies used in the classroom.”

The court has not set a date to decide if and when it will decide to issue an advisory opinion. Justices could decide to do so.

In 2011, Snyder 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 refused to consider a similar request over a right-to-work law.