The State of Michigan can earmark public funds for private and parochial schools pursuant to MCL 388.1752b for the “actual costs incurred in complying with state health, safety, and welfare laws,” the Michigan Court of Appeals has ruled in a 2-1 decision.

In Council of Organizations and Others for Education About Parochiaid, et al. v State of Michigan, et al.  (Docket No. 343801), the issue was the constitutionality of $2.5 million in taxpayer dollars that had been allocated for private schools in the state’s 2016-2017 budget. Numerous public education advocacy groups - including the Michigan Association of Superintendents & Administrators (MASA) and the Michigan Association of School Boards (MASB), just to name a few - filed suit against the State of Michigan, asserting that using public funds for private schools is unconstitutional.

Article VIII § 2 of the Michigan Constitution says: “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.”

In July 2017, the Michigan Court of Claims upheld a stay preventing the public funds from being distributed to private schools. That ruling was appealed.

On October 16, 2018, the Court of Appeals reversed the Court of Claims in a 2-1 published decision. Judge William Murphy wrote the majority opinion, joined by Judge Anica Letica. The majority said that funding the cost of complying with a state health, safety, or welfare mandate is permissible as long as it satisfies a three-part test:

1. “is, at most, merely incidental to teaching and providing educational services to private school students.”

2. “does not constitute a primary function or element necessary for a nonpublic school to exist, operate, and survive.”

3. “does not involve or result in excessive religious entanglement.”

Judge Elizabeth Gleicher concurred in part and dissented in part. “The majority carves out an exception to the resoundingly clear Constitutional language forbidding direct aid,” she wrote. “Applying a three-part test of its own making, the majority declares that payments earmarked as reimbursement for certain costs of doing business circumvent the Constitution’s plain words. This holding ignores the constitutional text and imposes a judicial gloss that contradicts the people’s will and the well-understood words they approved. And even if the majority’s test were consistent with the Constitution, MCL 388.1752b flunks it.”

Majority Analysis

In making its ruling, the Court of Appeals majority relied primarily on the Michigan Supreme Court’s decisions in Traverse City School District v Attorney General, 384 Mich 390 (1971), and Advisory Opinion re: Constitutionality of 1974 PA 242, 394 Mich 41 (1975).

“We conclude that the language utilized by the Legislature in MCL 388.1752b is generally consistent with the construction of Const 1963, art 8, § 2,” by the Michigan Supreme Court in Traverse City School District and Advisory Opinion re: Constitutionality of 1974 PA 242, “which plainly was the legislative goal in crafting the statute,” the majority said.

For example, criminal background checks would be a permissible reimbursement, the majority explained. This is because background checks of teachers are required by state law and are conducted “for the purpose of ensuring and advancing the safety and welfare of its students, weeding out prospective teachers and other school personnel who might pose a risk of harm to students.” Moreover, a criminal background check is “merely incidental to teaching and providing educational services to private school students,” the majority noted. “It does not constitute a primary function or element necessary for a nonpublic school’s existence, operation, and survival, and it does not involve or result in excessive religious entanglement.”

The majority rejected the Court of Claims reasoning that “because the purpose of MCL 388.1752b is to reimburse nonpublic schools for the cost of actions mandated by law, the actions involved cannot be deemed incidental to the education of private school children or the operation of the school but concern primary functions or elements necessary for a school’s survival.”

A state mandate concerning the health, safety or welfare of students “almost by definition is ‘incidental’ to teaching and providing educational services” to students, the majority explained. “Indeed, the Supreme Court in Traverse City Sch Dist, … stated that because ‘auxiliary services are general health and welfare measures, they have only an incidental relation to the instruction of private school children[,]’ and ‘[t]hey are related to educational instruction only in that by design and purpose they seek to provide for the physical health and safety of school children[.]’ Conducting criminal background checks, disposing of instruments containing mercury, and maintaining epinephrine auto-injectors, while mandatory, have nothing directly to do with teaching and educating students; such compliance actions are truly incidental to providing educational services and focus instead on a student’s well-being, i.e., his or her health, safety, and welfare.”

Accordingly, the Court of Claims decision was reversed and remanded “for an examination, under the proper criteria outlined in this opinion, of each of the ‘actual costs’ for which a nonpublic school may be reimbursed under the challenged legislation.” The majority said that, should the Court of Claims find a specific cost or action violates Const 1963, art 8, § 2, then it “may only strike or preclude reimbursement for that cost or action, without invalidating the entire statute.” The majority further instructed the Court of Claims to examine the plaintiffs’ argument that MCL 388.1752b violates Const 1963, art 4, § 30.

The majority also addressed Judge Gleicher’s separate written opinion. “Contrary to the suggestion in the concurring/dissenting opinion that we created the three-part test out of whole cloth, we believe that the test accurately reflects the principles and framework established by our Supreme Court in the two opinions,” the majority wrote. “Therefore, any subversion of the people’s will, as the concurrence/dissent accuses us of participating in, can only be undone by the Michigan Supreme Court.”

The plaintiffs are currently considering an appeal to the Michigan Supreme Court.

Reaction To Ruling

The Michigan Attorney General’s Office, which represents the state in the lawsuit, applauded the Court of Appeals ruling, saying it benefits all students across Michigan.

“This is about keeping our schools safe and our kids safe while they’re there in school and everyone should be in favor of keeping our kids safe,” said Andrea Bitely, a spokesperson for the AG’s Office.

However, the plaintiffs criticized the decision.

The ruling “flies in the face of our state Constitution, which clearly states that public dollars cannot be used to fund private schools,” said MASA Executive Director Chris Wigent in a press release. “This is a clear attack on public education by special interests that want to funnel money away from public school classrooms.”

In that same press release, MASB Executive Director Don Wotruba said he was “disappointed” with the decision. “The public in Michigan has always believed - and reaffirmed at the ballot box - that money from the School Aid Fund is meant for children attending public schools,” he stated. “This appropriation is delivered directly to private entities in Michigan.