Amicus Brief Supports Appeal Challenging Michigan’s Unconstitutional Diversion of Public Funds to Private Schools

Public Funds Public Schools (PFPS), a new initiative of Education Law Center and the Southern Poverty Law Center, has filed an amicus curiae (“friend of the court”) brief urging the Michigan Supreme Court to strike down a state law that blatantly violates the Michigan Constitution’s prohibition on public funding of private schools.

PFPS is a national campaign to ensure that public funds for education are exclusively used to maintain and support public schools. PFPS opposes all forms of private school vouchers, including education savings accounts vouchers and tax credit scholarship vouchers, as well as direct aid to private schools and other diversions of public funds from public education.

In 2017, several groups supporting Michigan public schools filed a lawsuit, Council of Organizations & Others for Education about Parochiaid v. State, to oppose a statute that would divert millions of dollars in taxpayer funds from Michigan’s public education budget to reimburse nonpublic schools for so-called health, safety, and welfare expenses. Michigan’s Court of Claims invalidated the law, ruling that it violated the “no-aid clause” in the state constitution, which expressly forbids any payment of public funds to nonpublic schools. The Court of Appeals reversed the lower court, holding that the law did not violate this constitutional provision. The plaintiffs now seek leave to appeal to the Michigan Supreme Court.

The PFPS amicus brief supports the plaintiffs’ request that the Supreme Court grant review of the case and reverse the Court of Appeals’ erroneous ruling. In addition to explaining why the appellate decision meets the criteria for Supreme Court review, the amicus brief provides crucial context about Michigan voters’ approval of the no-aid clause in response to a strained public education budget and the continuing underfunding of Michigan’s public schools.

The brief explains that when voters approved the no-aid clause in 1970 as an amendment to the Michigan Constitution, a central motivation was to protect funding for public education and improve the State’s underfunded and underperforming public school system. The brief offers extensive research evidence, including from studies commissioned by the State itself, that Michigan’s public schools remain severely underfunded and that chronic funding shortfalls are most harmful to high-need students across the State. The challenged statute would exacerbate the lack of public school funding while diverting scarce public dollars to private schools.

“Public school underfunding informed voters’ approval of the Michigan Constitution’s no-aid clause, and that underfunding has only worsened,” said ELC Senior Attorney and PFPS Director Jessica Levin. “Our brief aims to bring this crucial information to the Court’s attention as it considers taking up the case and interpreting this vital constitutional protection.”

“The state constitution is clear on this issue: public dollars cannot be used to fund private schools,” said Zoe Savitsky, Deputy Legal Director of the Southern Poverty Law Center. “If Michigan intends to improve education for all students, which is the primary objective of the 1970 amendment passed by voters, it is vitally important that public dollars must remain with public schools.”

PFPS was represented pro bono in this amicus filing by the law firm Paul Weiss and local counsel Salvatore Prescott & Porter.

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