A recurring topic of controversy within courtrooms has been, whether public funds can be used to aid nonpublic schools. For example, Board of Education v. Allen where the State funded the purchase of textbooks and loaned them to nonpublic schools, free of charge, and Everson v. Board of Education, parents of private school students were given reimbursement for bus fares at the expense of taxpayer money.
In July of 2017, a similar case was brought to the Courts of Claims, in Michigan. Various groups sued the State, in lieu of a new budget which allocates $2.5 million of public funds to private schools. That is only a small portion of Michigan’s $16 billion education budget, but these groups fear the “slippery slope” of legislators redirecting more funds to private schools in the future. The purpose of the funding goes towards reimbursing nonpublic schools for their compliance with state mandates such as immunization and safety drills, not aiding their actual educational curriculum, but Jeff Donahue, an attorney representing the public schools school groups stated, funding could go a different direction it can be permitted to be used for other purposes, “including costs associated with releasing student information to parents, meeting requirements to use non-certified teachers and certifying school counselors.”
The Court of Claims invoked the decision in the Trinity Lutheran case. Trinity Lutheran Church applied for a state-funded grant to remodel their playground, grant’s were hard to come by, but they ranked 5th out of the 44 applicants. When they were denied funding because the state policy excluded religiously affiliated applicants, they sued, claiming it violated the Free Exercise Clause that the statute was hostile against religions. The court sided with Trinity Lutheran, excluding funds solely because of religious affiliation violated the free exercise clause. In order to, deny a generally available benefit based on religion, there needs to be justification from the highest order of state interest, Missouri was unable to do. Cynthia Stephens, the Court of Claims Judge, invoked this case to justify her holding. She found, not providing funds to private school was a “generally neutral,” and “generally applicable without regard to religion.” She stated, “The constitution provision at issue in this case, Article 8 section 2 of the Michigan Constitution, can be understood as falling within the category of neutral and generally applicable laws, rather than a provision that singles out the religious for disfavored treatment.” She expressed, the importance of the wording in the ruling for the Trinity case, “that case concerned express discrimination based on religious identity with respect to playground resurfacing.” The case at hand did not involve express discrimination, therefore not violating the Free Exercise Clause.
The Court of Claims invoked the decision in the Trinity Lutheran case. Trinity Lutheran Church applied for a state-funded grant to remodel their playground, grant’s were hard to come by, but they ranked 5th out of the 44 applicants. When they were denied funding because the state policy excluded religiously affiliated applicants, they sued, claiming it violated the Free Exercise Clause that the statute was hostile against religions. The court sided with Trinity Lutheran, excluding funds solely because of religious affiliation violated the free exercise clause. In order to, deny a generally available benefit based on religion, there needs to be justification from the highest order of state interest, Missouri was unable to do. Cynthia Stephens, the Court of Claims Judge, invoked this case to justify her holding. She found, not providing funds to private school was a “generally neutral,” and “generally applicable without regard to religion.” She stated, “The constitution provision at issue in this case, Article 8 section 2 of the Michigan Constitution, can be understood as falling within the category of neutral and generally applicable laws, rather than a provision that singles out the religious for disfavored treatment.” She expressed, the importance of the wording in the ruling for the Trinity case, “that case concerned express discrimination based on religious identity with respect to playground resurfacing.” The case at hand did not involve express discrimination, therefore not violating the Free Exercise Clause.
Many groups, including American Civil Liberties Union of Michigan and Michigan Association of School Boards, were not persuaded by the Court of Claims ruling and followed up with a dissenting opinion on August 14, 2017, with the goal of appealing the Court of Claims ruling. Chief Justice Markman offered the dissenting opinion claiming, the Court of Claims did review this case in enough depth. Stating, the trial court should look at four elements “(1) the moving party made the required demonstration of irreparable harm, (2) the harm to the applicant absent such an injunction outweighs the harm it would cause the adverse party, (3) the moving party showed that it is likely to prevail on the merits, and (4) there will be harm to the public.” He is not convinced by the plaintiffs understanding of irreparable harm, the plaintiffs believe, constitutional violations equate to irreparable harm the plaintiffs did not make any specific argument for suffering a loss of constitutional rights from this statute. Also, they could not provide evidence that the $2.5 million of funding would go to another person or institution and there is no reason to think public schools were entitled to these funds. Any statute is presumed to be constitutional unless there is evidence to the contrary. He finds, the plaintiffs did not provide sufficient evidence, questioning the constitutional validity of the statute. The Michigan Constitution states, no public monies will be used to aid or purchase educational services for nonpublic schools, but Markman describes, the funds would solely go towards auxiliary services for nonpublic school students, benefiting the health and general welfare of those students, prohibiting such funds would discriminate against nonpublic school children. The funding is supposed to be a reimbursement for complying with state health, safety, or welfare requirements. On March 11th, The Michigan Supreme Court refused to reverse the Court of Claims ruling.
I believe the proposed statute was Constitutionally valid, only if all the funding goes directly towards “auxiliary” purposes. Jeff Donahue mentioned, there could be reimbursement directly going towards education including, releasing student information to parents and certifying school counselors, but in the Court of Claims decision and the dissenting opinion, there was no mentioning of such uses. Therefore, I would like to invoke the Lemon Test to prove its validity and the show the Statute does not violate Establishment Clause. The proposal has a secular purpose, it aids the safety and health of children through complying with state-mandated regulations. It does not inhibit, nor aid any religion, passing this law does not provide any parent a greater incentive for their child to attend a nonpublic school, its purpose is to aid nonpublic schools to pay for their compliance with state mandate costs which seems fair considering it costs roughly $10 million for the mandates. Lastly, it avoids excessive entanglement between church and state the funds are not going towards purchasing textbooks, or new technology, the sole purpose is to reimburse nonpublic schools for complying with the state mandates. I find it similar to Everson v. Board of Education, how reimbursing parents for busing is similar to reimbursing school if they comply with state mandates, just on a more significant level. Reimbursing parents $47 for buses fare is not a significant burden on taxpayers, similar to how $2.5 million is not a significant portion of Michigan’s $16 billion education budget. In Everson, the state found they had a compelling interest in the safety of children in Michigan, also has a compelling interest in the safety and welfare of their students.
I agree with your assessment of the statute at hand. The state has a secular interest in educating all those who will inevitably be an active citizens, if the only way this can be achieved is by allowing non-public schools to receive funding for 'auxiliary purposes' then so be it. Although, I don't believe that this would pass the lemon test as it would involves excessive entanglement of the government and the school, requiring the government to oversee and audit the purchases of the school, ensuring all purchases are in fact for auxiliary purposes.
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