PFPS Defends Michigan Constitution’s Ban on Private School Funding

Public Funds Public Schools recently joined in an amicus curiae, or “friend of the court,” brief urging dismissal of the latest legal assault by pro-voucher lawyers on the Michigan Constitution’s ban on the use of public funding for private education.

The lawsuit, Hile v. Michigan, is spearheaded by lawyers affiliated with the Mackinac Center for Public Policy. The Mackinac Center, heavily funded by the family of former Secretary of Education Betsy DeVos, has waged a decades-long effort to privatize K-12 education in Michigan. The current case seeks to secure state income tax benefits when using Michigan’s Education Savings Plan, which provides savings accounts under Section 529 of the Internal Revenue Code, to pay tuition at K-12 religious schools. The lawsuit asserts that Article VIII, Section 2 of the Michigan Constitution – the “no-aid clause” – prohibits such benefits and therefore violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution.

A broad coalition of Michigan civil rights advocates and public school parents, students, teachers and administrators has stepped up again to defend the no-aid clause and the will of Michigan voters, who twice approved the ban on diverting public funds to private schools. PFPS, a national campaign to fight vouchers, is supporting the amicus brief filed by these groups urging the court to dismiss the case.

The amicus brief makes clear there is no federal constitutional right to public funding of private education. It explains that recent U.S. Supreme Court rulings that states cannot bar religious institutions from public programs based solely on their religious status have no effect on the Michigan Constitution’s no-aid clause, which bars public funding of any private education, religious or otherwise.

“Our brief explains that Michigan’s no-aid clause is neutral both on its face and in its operation, barring public aid to any private school, whether religious or secular,” said Dan Korobkin, Legal Director of the ACLU of Michigan. “It is inaccurate to call our no-aid clause a ‘Blaine amendment,’ and it is misleading to imply it is motivated by animus toward religion. Michigan voters put this constitutional firewall in place to protect the public schools that welcome all students and are charged with educating the vast majority of Michigan’s children.”

The amicus brief reviews the history of Michigan’s no-aid clause, enacted by voter referendum in 1970 to ensure that limited funds available for public schools would not be diverted to pay for private education. The public also voted by an overwhelming margin to maintain the no-aid clause in 2000, with no evidence of any discriminatory motive.

“Our public schools are underfunded and under-resourced. Michigan’s Constitution ensures that scarce public dollars are not redirected to private schools, and we simply cannot afford to have that crucial protection weakened or eliminated,” said Molly Sweeney, Director of Organizing for 482Forward, a network of parents, students, educators, and community members advocating for educational equity in Detroit.

PFPS previously participated as amicus curiae in Council of Organizations & Others for Education about Parochiaid v. State, in which public school advocates argued that a statute set to divert millions of dollars from Michigan’s public education budget to reimburse private schools for a wide range of expenses violated the no-aid clause. PFPS, along with the Southern Education Foundation and the Advancement Project, also filed an amicus brief in a South Carolina case, Bishop of Charleston v. Adams, in which pro-voucher groups are attacking that state’s similar no-aid clause.

The U.S. District Court for the Western District of Michigan will hear oral argument on the State’s motion to dismiss in Hile on March 24, 2022.

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