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Mackinac Center to challenge MI constitutional amendment that bans public funding for non-public schools

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A free market think tank will appeal a federal judge’s decision to dismiss its claim that a 1970 amendment to the Michigan Constitution discriminates against religious schools.

The amendment, which was adopted by voters, bans public funding for non-public schools.

This is Article 8, Section 2, as amended in 1970:

The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.

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 nonpublic, 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 nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students. The legislature may provide for the transportation of students to and from any school.

Attorney Patrick Wright is the director of the Mackinac Center Legal Foundation, which represents five families that want to use tax-exempt savings accounts to pay tuition and other costs to send their children to religious schools.

Wright said in 1970, most private schools in Michigan were Catholic. He agreed the amendment’s language is neutral and does not single out religious schools, “but all of the history surrounding it indicates it was passed with hostile religious intent.”

“So with this bad, discriminatory intent baked into it, what is the First Amendment, United States Constitution First Amendment religious hostility in a state Constitution?” he said.

Casandra Ulbrich is a Democrat on the Michigan State Board of Education. She said U.S. District Court Judge Robert Jonker made the right decision last week.

“The language in the state Constitution is very plain. It’s very clear,” she said. “It does not discuss anything regarding religion or anything else. It’s just very plain language and so therefore I think the judge was absolutely correct in dismissing this lawsuit.”

The challenge will be filed with the 6th Circuit U.S. Court of Appeals in Cincinnati. Once the case is heard and decided, the loser will almost certainly appeal the decision to the U.S. Supreme Court. That means a final resolution of the case is probably years away.

Rick Pluta is Senior Capitol Correspondent for the Michigan Public Radio Network. He has been covering Michigan’s Capitol, government, and politics since 1987.