The Michigan Supreme Court will consider on March 4 and 5 whether the state Legislature can spend public money on private schools.
“That means the court will need to make a decision by the end of the term [end of July], if not sooner,” spokesman John Nevin said this week.
The Council of Organizations v. State of Michigan decision is highly anticipated on both sides of the issue.
For almost 50 years, Michigan’s Constitution has strictly prohibited taxpayer funding of private and religious schools. This current battle began four years ago.
In 2016, the Republican-led Michigan Legislature approved the Fiscal Year 2017 K-12 state budget that included a $2.5 million appropriation to reimburse private and parochial schools for complying with mandates to which state public schools must adhere, like for transportation or teacher certifications.
Former Gov. Rick Snyder, a Republican, signed the appropriation into law, as well as subsequent spending in later budgets. However, he asked the state Supreme Court to issue an “advisory opinion” on whether it was constitutional.
“The Michigan Supreme Court’s prompt resolution of important constitutional questions through advisory opinions greatly assists the people of Michigan … by providing the necessary constitutional certainty before moving forward with the implementation of the law,” Snyder wrote at the time to then-Michigan Supreme Court Chief Justice Robert Young, who has since stepped down.
The Supreme Court initially declined to respond.
‘Reimbursing’ private and religious schools
After the 2016 action and Snyder asked for a state Supreme Court opinion, the Michigan American Civil Liberties Union (ACLU) filed a friend-of-the-court brief arguing that the appropriation should be struck down because it violates the state constitutional requirement that reserves public education funding exclusively for public schools.
The high court, however, declined to issue an advisory opinion, which prompted a coalition, including the Michigan Association of School Boards, Michigan Association of School Administrators, American Federation of Teachers (AFT) Michigan and others, to file a 2017 lawsuit to challenge the constitutionality of the funding.
“Whether by vouchers or any other scheme, sending public tax dollars to private/religious schools is not only a violation of Michigan’s constitution, it is a failed strategy to improve student performance,” Steven Cook, then-Michigan Education Association president, wrote in 2017.
In 2018, the Michigan Court of Claims ruled in the Michigan ACLU’s favor, declared the statute unconstitutional, and issued a permanent injunction prohibiting the state from funding private schools. However, the Michigan Court of Appeals reversed the decision, ruling that the state can use public tax money to fund private schools in certain circumstances.
“Not only is this attempt to fund parochial and private schools unconstitutional, it diverts tax dollars from the public schools they’re intended to fund at precisely the time when our public schools need resources the most,” said Dan Korobkin, Michigan ACLU deputy legal director.
In June 2019, the state Supreme Court announced that it would hear the case.
“This court owes the parties, and the people of this state, a final decision in this case that fairly considers all inextricably connected issues,” then-Michigan Supreme Court Justice Stephen Markman wrote last June. “It is long past time that this Court … determine decisively which of these outcomes is warranted, so that the product of our legislative process is no longer maintained in limbo.”
Opponents are concerned that the law could open the door to private schools getting more taxpayer funding and even vouchers, something championed by Michigan native U.S. Education Secretary Betsy DeVos. The education union AFT Michigan has long been a strong opponent of public dollars going to private schools.
“The people of Michigan have made clear time and again that state revenue raised for public schools should be only used for public schools,” said David Hecker, AFT Michigan president. “The Michigan Constitution is clear on this issue, despite the attempts by Republican lawmakers to earmark state funding to private schools. We look forward to a ruling from the Supreme Court to return the funding to our public schools and uphold the will of the people.”
The Michigan Catholic Conference and the Michigan Association of Non-Public Schools are among those arguing that the state spending plan passes constitutional muster, citing a 2017 U.S. Supreme Court case that allowed public dollars to go to a religious school playground.
A number of GOP lawmakers have intervened in the case to defend state spending on private schools, including state Senate Majority Leader Mike Shirkey (R-Clarklake) and state House Speaker Lee Chatfield (R-Levering).
“Plaintiffs … would have this Court believe that the Legislature lacks authority to appropriate funds for the health, safety, and welfare of more than 100,000 students attending nearly 650 nonpublic schools throughout Michigan, merely because the private schools may derive some incidental benefit from the appropriation,” Republicans wrote in a December filing.
They conclude that because the funds don’t go to classroom instruction, they’re constitutional.
Gov. Gretchen Whitmer, who is now a defendant, and Superintendent of Public Instruction Michael Rice filed a brief in the Michigan Supreme Court last month arguing that funding of nonpublic schools is constitutional, but only in part. The state can provide funds to nonpublic schools, they argued, to help them pay the costs of complying with state mandates, but only if those mandates are related to student transportation.
“When we partner to ensure a great education for our kids, we must do so in compliance with the Michigan Constitution,” said Whitmer. “As governor, I take an oath to uphold the constitution of our state. As always, I am ready to continue working to ensure every child, no matter their community, can get a quality education that puts them on a path to a good job, and will work with everyone who wants to reach that goal.”
How did we get here?
The year was 1970.
William Milliken, the Republican from Traverse City, was a rookie governor. Democrat Phil Hart and Republican Robert Griffin represented Michigan in the U.S. Senate. A gallon of milk on average cost $1.15. The country’s top soul song was “I Want You Back” by Motown Records’ Jackson 5, led by 12-year-old wunderkind Michael Jackson, and “Easy Rider” won the Oscar for best film.
The Michigan Legislature passed Public Act 100 of 1970, the School Aid spending bill for the upcoming fiscal year. Embedded in the measure provided direct financial support to eligible private schools and instruction in nonreligious subjects.
About 274,000 Michigan children attended non-public school at the time, which was about 10% of the state’s K-12-aged students. About 157,000 of them attended Catholic schools. The Michigan Supreme Court affirmed the act and a grassroots campaign ensued to amend the state Constitution prohibit taxpayer money for private schools.
In November 1970, state voters approved Proposal C by 338,098 votes with more than 3.5 million ballots cast. Michigan was the first state in the union to put the issue on the ballot. Unlike many of today’s Lansing political battles, it wasn’t a typical Democratic-Republican split on the issue.
Heavy hitters on the “no” side were Walker Cisler, Detroit Edison chair; Detroit Mayor Roman Gribbs; developer Max Fisher; Ford Motor Company’s Henry Ford II, and UAW Vice President Doug Fraser.
Milliken; state Sen. Sander Levin, his Democratic challenger; and AFL-CIO Wayne County President Tom Turner also were no votes. Although Milliken supported “parochiaid” and proposed a $22 million package to fund it, he said that Proposal C “goes too far” and “might necessitate closing of non-public schools.”
Levin also opposed Proposal C and direct aid to non-public schools. However, he had co-sponsored a bill that granted auxiliary services to non-public schools.
“My position doesn’t satisfy anyone,” Levin said just before the November general election. “But I didn’t ask to be shoved into this corner. I didn’t draft this proposal. Still, I think the voters have a clear choice on this issue. They have a choice between a candidate who favors parochiaid and who made it a key point of this education reform package, and who actions I think resulted in the passage of ‘parochiaid’ and little else, and another candidate who has opposed ‘parochiaid’ and still oppose ‘parochiaid.’”
The yes side supporters included the United Methodist Church of Michigan, Council of Baptist Pastors, Detroit and Vicinity, as well as statewide public schools organizations, the Michigan ACLU and the Anti-Defamation League.
The number of Catholic schools in Michigan totaled 550 in 1970. Metro Detroit was a hot spot, considering that it included a large white Catholic population.
However, the number of schools operated by the Archdiocese had begun to decline beginning due to shrinking enrollment. In fact, church officials announced in June of 1970 that 15 of its schools would close and another 43 with 19,724 enrolled students were in danger of being mothballed.
Just prior to the Nov. 3 election, the Michigan Catholic Conference said that almost all of the state’s Catholic schools would be forced to close if Proposal C passed.
“The issue goes way beyond parochiaid,” said then-Detroit Mayor Roman Gribbs, a Democrat and co-chair on the parochiaid side. “A vote against Proposal C is not just a vote for parochiaid. It is a vote for vital educational services, such as remedial reading, health and nursing services, speech correction and counseling for mentally and emotionally disturbed.”
The result of Proposal C’s passage was that the following language was added to Article VIII, Section 2, of the state Constitution:
“No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other private, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such private school or at any location or institution where instruction is offered in whole or in part to such private school students.”
The case before the Michigan Supreme Court in March is the critical next chapter in this fight.