30 December 2020

Michigan Supreme Court Upholds Aid for Nonpublic Schools

On December 28, 2020, the Michigan Supreme Court ruled 3‑3 in Council of Organizations & Others for Ed. About Parochiaid v State, Docket No. 158751, leaving in place the decision of the Court of Appeals to permit certain funds to be disbursed to Michigan’s nonpublic schools.  Under MCL 388.1752b, funds were reimbursed to nonpublic schools for costs incurred in complying with health, safety, and welfare requirements mandated in Michigan.  Soon after the law’s 2016 passage, the Court of Claims prohibited disbursement of the funds pending resolution in court over the legal conflict between Plaintiffs and the State of Michigan.  The Court of Appeals overturned the Court of Claims’ decision, and a split Michigan Supreme Court left the Court of Appeals’ decision in place.

The “majority” opinion highlighted the crux of the case.  Under the Michigan Constitution, public funds cannot be used to aid nonpublic schools.  Notwithstanding, case law has historically permitted funds to be used to indirectly support nonpublic schools where (1) the funds, if used for educational services, are controlled by public schools (such as shared time services) or (2) where auxiliary services are used to benefit nonpublic school children in non‑educational ways (such as special educational services that provide for the health and safety of nonpublic school students).  Comparing the present case to the provision of auxiliary services, the Supreme Court “majority” concluded that MCL 388.1752b was constitutional because it did not appropriate funds for nonpublic school educational services.

The “dissent” would have found MCL 388.1752b unconstitutional.  It opined that the “majority” had diverged from prior Michigan case law.  It reasoned, among other distinctions, that the auxiliary services in past case law were unlike the funds at issue in this case.  For example, the “dissent” noted that the funds in this matter were payments to nonpublic schools for simple overhead costs and, thus, were direct aid to nonpublic schools via public funds.  Therefore, the “dissent” would have upheld the decision of the Court of Claims and prohibited funding under MCL 388.1752b.

The decision is yet another case that is part of a trend in recent years, both in Michigan and at the national level, which has permitted public funds or benefits to be used for religious entities.  With a recent shake‑up in the composition of the Michigan Supreme Court, it is unclear whether the case, which is not precedential due to the 3‑3 split, will be used for future disputes involving public aid for nonpublic schools.  For now, MCL 388.1752b stands.