Private schools face uphill battle for federal aid

Michael Gerstein
The Detroit News

Lansing — Although school choice supporters are celebrating the Trump administration’s plan for funneling private school aid to the states, experts say Michigan would face huge legal obstacles in qualifying for the federal money.

Education Secretary Betsy DeVos, the Grand Rapids area choice champion, is leading the charge for a $1.4 billion boost in federal funding for increasing school options.

Most of the money is targeted at helping families widen their choices to attend charter schools or public schools outside their community — aid for which Michigan would qualify. There also is a $250 million increase in the Trump budget plan for giving scholarships to low-income students attending private schools.

If Congress approves the federal scholarship funding, Michigan’s 47-year-old ban on state money going to private schools means the state couldn’t get a piece of the $250 million.

Choice supporters said they see two ways to remove or get around the prohibition, but they are long shots. The state Constitution would have to be changed or overruled, or Congress have would have to overhaul the federal tax code before Michigan could accept any federal scholarship money.

“None of this is going to happen without congressional action,” said Tim Keller, an attorney with the Washington, D.C.-based Institute for Justice, which fights legal battles for school choice programs.

“It’s going to be, probably, difficult,” said Ben DeGrow, a pro-choice education expert with the free-market-oriented Mackinac Center for Public Policy.

Supporters say such government funding for private schooling would widen opportunities for poor kids to get a better education, while opponents say it would siphon badly needed money from public schools.

Still, private scholarship aid has powerful allies in Trump, who attended a private military school, and DeVos, who graduated from Holland Christian High School.

If approved, the proposed private federal aid would come as enrollment at Christian K-12 private schools has been falling for the past 20 years. Catholic schools alone experienced an 18 percent decrease in the past decade, according to the National Catholic Education Association.

Escalating tuition and competition from charter schools helped cause the enrollment decline, said Brian Broderick, executive director of the Michigan Association of Non-public Schools.

Assessing the options

One way to pave the way for federal private school aid in Michigan would involve getting the state’s constitutional prohibition struck down in an ongoing legal fight, which focuses on $2.5 million in state aid that the GOP-controlled Legislature has directed to private schools for meeting state health and safety mandates.

The other is to adopt a version of Florida’s law that allows nonprofits to accept private donations from corporations that are distributed as scholarships to students and essentially reimbursed as a dollar-for-dollar tax credit from the state.

Choice advocates want to create federal tax credits for private school donors but need Congress to overhaul the federal tax code.

“The tuition tax credit would be a blessing for Catholic schools,” said Samuel Abrams, director of the National Center for the Study of Privatization in Education at Columbia University in New York.

Such a federal dollar-for-dollar tax credit would “save” Catholic schools at the expense of draining public coffers and leaving less money for other purposes, said Abrams, a critic of privatizing public education.

Democrats in Michigan also argue that state or federal aid for private schools undermines public education.

“Public dollars should go to public schools ...,” said Rep. Yousef Rabhi, D-Ann Arbor. “Public schools are for everybody, and they’re sort of an equalizer”

But choice supporters see expanding private school choice as accomplishing a public mission.

“I think education starts at the home and should be directed by each family …,” said state Rep. Tim Kelly, a Saginaw Township Republican who is being considered for a post in DeVos’ U.S. Department of Education. “Let’s remember that tax money is their money to begin with.”

The court route

Republican U.S. Sen. Marco Rubio of Florida and GOP U.S. Rep. Todd Rokita of Indiana introduced a 2015 bill to create a federal scholarship tax credit, but it didn’t gain traction at a time when Democrats controlled the Senate and Barack Obama was president.

School choice advocates have failed to change the state constitution, which allows only state aid to private schools for transportation but otherwise forbids direct or indirect public money. Voters rejected a ballot measure in 2000 led by DeVos to allow state aid to flow to private schools.

The court system could be another avenue. The American Civil Liberties Union of Michigan has sued over the more than $2.5 million in state aid targeted for private schools to meet state safety and health mandates, arguing it violates the state constitution’s prohibition on government assistance for private schools.

But private schools argue the state should reimburse them for health and safety spending — such as state mandated immunization and safety drills — required at more than 600 private schools in Michigan. Catholic and Lutheran schools make up the bulk of those.

“What I don’t think is right is that the state should enforce mandates on private schools, religious schools, and then not fund them,” said John Bursch, the former Michigan solicitor general who is now an attorney representing a Grand Rapids Catholic school and four lawmakers, including Kelly. The Catholic school, lawmakers and Michigan Association of Non-public Schools delayed the case by asking to join the lawsuit.

The case could open a back door for federal private school aid in Michigan — in the form of vouchers or tax credits — if the state’s courts can be persuaded that the U.S. Constitution trumps the state constitution’s ban on private aid, said Dan Korobkin, deputy legal director of the American Civil Liberties Union of Michigan.

“So that is a larger issue: I think a lot of the interest groups see this ... as a back-door way to get school vouchers approved in Michigan, and they’re fighting for that,” Korobkin said.

Kelly acknowledged as much. “That would supersede any need to amend the state Constitution,” he said.

The Florida approach

School choice advocates are studying how Florida’s nonprofit scholarship tax credit model could be adopted in Michigan.

Beth DeShone, a lobbyist for a DeVos-backed pro-charter group called the Great Lakes Education Project, said she is studying the issue along with the Mackinac Center’s DeGrow.

Nonprofit scholarship-granting organizations could become financial conduits for federal dollars in the form of tax credits to parents with children at private schools. Florida’s current scholarship-granting groups only direct private money to parents who pay their kids’ tuition at private schools.

Michigan school choice advocates said such a program could be expanded to do something similar if Congress created a tax credit for such school donations.

That’s the likeliest route for federal money at private schools because it’s easier to do than persuading a court to rule that the U.S. Constitution invalidates the state Constitution, said Keller with the Institute for Justice.

For now, private schools in Michigan appear more focused on trying to keep a small amount of state aid. The Republican-led Legislature added the $2.5 million in its 2016 budget and kept the appropriation in their 2017 proposed budgets despite opposition from Gov. Rick Snyder.

The money typically is disbursed in August, the ACLU’s Korobkin said. So if intervening groups delay the legal proceedings by successfully broadening the scope of the state court case, private schools could claim the $2.5 million for at least another year even if the court eventually finds the appropriation unconstitutional, he said.

“Once that money goes out, you can’t really get it back. There are no refunds,” Korobkin said.