Judge bars state funds for private school mandates

Jonathan Oosting

Lansing — A judge this week extended her preliminary ban to prevent Michigan from using taxpayer funds to reimburse private schools for government mandates, ruling a key provision in the state constitution does not discriminate against schools based on religious affiliation.

Court of Claims Judge Cynthia Stephens on Tuesday granted a preliminary injunction requested by the American Civil Liberties Union of Michigan and public education groups fighting the $2.5 million appropriation approved by the state’s Republican-led Legislature.

Stephens reconsidered her earlier order in light of a recent U.S. Supreme Court ruling that Missouri violated First Amendment free exercise rights of a church through a policy to summarily deny grants to any applicant owned or controlled by a church, sect or other religious entity.

In that case, a Trinity Lutheran church applied for a natural resources grant to repave the playground at a learning center it operated.

Michigan’s constitution generally prohibits the use of public funding to directly or indirectly aid or maintain “any private, denominational or other nonpublic” school. The lawsuit contends the state would violate that provision if it reimburses private schools for complying with state mandates, including immunization regulations and safety drills.

Unlike the Missouri policy, Michigan’s constitutional provision can be considered a “neutral and generally applicable” law because it applies to all private and nonpublic schools regardless of religious affiliation, Stephens ruled.

“At this preliminary stage of the present case, this court is disinclined to extend the Trinity Lutheran decision to a case that plainly does not involve express discrimination,” she wrote in her injunction.

The Michigan Catholic Conference and other advocates contend the funding to reimburse nonpublic schools for state mandates is legally sound because the budget specifies it is for purposes “noninstructional in character” and for “ensuring the health, safety and welfare” of students.

Supporters note nonpublic schools have already qualified for state funding in the form of school safety grants, and both Democrats and Republicans last year supported a separate budget provision allowing schools of all kind to be reimbursed for drinking water lead testing.

Stephens has not ruled on the merits of the mandate reimbursement case, which both sides continue to fight in court, but in issuing her preliminary injunction to temporarily bar the state spending this year, she concluded plaintiffs “demonstrate a likely of success on merits.”

The lawsuit was prompted by $2.5 million in state funding for the current fiscal year. Despite the legal drama, the Legislature included another $2.5 million for nonpublic school mandate reimbursement in the 2018 state budget signed this month by Gov. Rick Snyder.