State and religious school advocates clash over funding in High Court


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Advocates for public schools urged the Michigan Supreme Court on Tuesday to reverse payments from the Michigan legislature to non-public schools, arguing they violate a constitutional amendment approved by voters in 1970 that prohibits public funds from going to public schools. private schools.

Attorney General Dana Nessel’s office and public school groups argued that the 1970 constitutional ban is not discriminatory because it prohibits public funding of all non-public schools – not just religious schools.

“Michigan’s constitution does not distinguish between private secular schools and private religious schools. And that’s an important point,” Assistant Attorney General Eric Restuccia said, noting that other similar bans known in many states under the name of the Blaine Amendments, which were rescinded aimed at religious schools.

But non-public schools such as Immaculate Heart of Mary in Grand Rapids argued that the amendment was suitable for Catholic schools, noting that one of the plaintiffs in the case called himself the “Council of Organizations and others for parochiaid education, ”referring to assistance to parishioners or parish schools.

The 1970 Amendment, or Proposition C, should be overturned in its entirety as a “religious gerrymander,” said John Bursch, a Grand Rapids school lawyer who has acted as a special interest group in the case.

“Even in the text itself, the electorate and those who supported Proposition C directed their animosity against religious schools,” Bursch said.

Restuccia rejected Bursch’s arguments. Voters not only adopted Proposition C in 1970, but also rejected voting proposals in 1978 and 2000 to create state voucher programs for parents seeking to educate their children in non-public schools, t -he declares.

“The idea that motivates the electorate in these three different forums is an effort to protect the resources of public schools,” said Restuccia, who represented Gov. Gretchen Whitmer and the Michigan Department of Education.

Judge Megan Cavanagh also rebuffed Bursch’s arguments, noting that it was voters – not a state official or governing body – who implemented the funding ban.

“Should we attribute a discriminatory intention to voters?” asked Cavanagh, a Democratic nominated candidate who won the election in 2018.

The lawsuit dates back to 2016, when Michigan’s GOP-led legislature allocated $ 2.5 million to reimburse non-public schools for more than 40 state mandates that schools must comply with, such as background checks. teachers, fire drills and inspections.

Judge Megan Cavanagh

Advocates for public schools sued the state in 2017 over appropriation, which rose to $ 5.25 million with additional allocations between 2016 and 2018. No part of the money was spent during this period. that the case is pending.

Claims Court Judge Cynthia Stephens called the funding unconstitutional in April 2018. But a divided state Court of Appeals panel ruled the spending was constitutional in October 2018, when it ruled that the state could reimburse “incidental costs” which did not result in “excessive religious expenses”. tangle.”

At that time, Republican Attorney General Bill Schuette supported the award in court. But the legal position shifted under the leadership of Nessel, a Democrat from Plymouth, and Whitmer in 2019.

The Michigan Supreme Court heard the appeal in October 2019. Republican-appointed judge Stephen Markman noted at the time that a decision in favor of the funding “may be in tension with the establishment clause.” of the US Constitution and a decision against funding “might be in tension with the free exercise clause.”

Justice Beth Clement withdrew from the case on Tuesday as she was chief legal counsel to former Governor Rick Snyder, who approved the initial spending but sought an advisory opinion from the Supreme Court in 2016. The tribunal refused at the time.

The 1970 constitutional amendment banned any money to aid or maintain non-public schools, with a specific exception for transporting students to and from school.

But Len Wolfe, lawyer for the Michigan Catholic Conference and other groups supporting the funding, argued that the legislature’s appropriations were a “payback,” not money to help or maintain schools.

“They are not used for tuition,” Wolfe said. “They are not used to reimburse teaching or educational services for non-public schools. And they are not used for teaching materials that are primary and essential to the existence of a non-public school.”

Judge Brian Zahra asked whether the constitutional provision would be considered discriminatory if every non-public school was a religious school. Phillip DeRosier, an attorney for public school groups opposed to the funding, agreed it would be considered discriminatory under previous U.S. Supreme Court rulings.

Michigan Supreme Court Justice Brian K. Zahra hears a case.

But when Zahra, a Republican-appointed judge, asked if the finding of discrimination would be the same if 99% of schools were religious schools, DeRosier argued that the funding ban would not be discriminatory.

“A disparate impact on its own is not enough to find that there was discriminatory intent,” DeRosier said.

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