The state Supreme Court heard arguments Tuesday on a challenge to Michigan’s ban on taxpayer funds to support private and parochial schools.
The fight is over a $2.5 million appropriation tucked into the $55 billion 2016 state budget.
The money was earmarked to reimburse non-public schools for the costs of complying with health and safety mandates. But its real purpose was to set the stage for a legal fight over the parameters of a 1970, voter-approved amendment. It says taxpayer funds cannot support non-public schools – including religious schools.
Attorney John Bursch said parochial schools are the real target of the ban.
“It’s the intent, and clearly the intent was to discriminate against religious schools specifically,” he told the court during online oral arguments.
But Assistant Michigan Attorney General Eric Restuccia said it’s not the court’s job to divine voters’ intentions. He said the amendment was carefully crafted to apply to all non-public schools, not just schools with a religious affiliation.
“It’s not like Michigan Constitution tried to identify just the private schools or even a denomination within – all non-public schools.”
Assistant Michigan Solicitor Ann Sherman, arguing for Governor Gretchen Whitmer, said she agreed the language in the amendment is clear.
“So if, as is true here, you have money that is paid directly to the school, to the non-public school, you give the non-public school control over those funds, the analysis is done,” she said. “The funding is unconstitutional.”
Attorney Leonard Wolfe appeared on behalf of the Michigan Catholic Conference and a private schools association. He said a ban on funding is not fair to thousands of students in Michigan who attend private and religious schools.
“Their interpretation would prohibit the state from appropriating funds to non-public schools to prevent school shootings,” he said. “Or to make buildings more secure, or as applied in today’s pandemic world, prevent the state from appropriating funds to non-public schools for masks, cleaning supplies, and COVID testing.”
Although, the state argued, restaurants and other businesses are expected to comply with health and safety rules without relying on taxpayer funds.
The decision in this case will decide the boundaries of future budget fights over state money for non-public schools.