By Ed White
Associated Press
DETROIT (AP) — Michigan lawmakers can send tax dollars to private schools in certain circumstances, the state appeals court said this week in a major test of a 1970 amendment to the Michigan Constitution that says no public money can flow.
In a 2-1 opinion, the court said private schools can receive tax dollars to help them comply with health, safety and welfare rules without violating the constitution.
The court created a three-part test to ensure any reimbursement is incidental to teaching and doesn't involve entanglement with religion. An example: criminal background checks of staff.
“The criminal background checks are mandated by state law. ... It does not constitute a primary function or element necessary for a non-public school's existence, operation and survival, and it does not involve or result in excessive religious entanglement,” said judges William Murphy and Anica Letica.
Judge Elizabeth Gleicher seemed incredulous in her nine-page dissent, starting it with a reference to the 1970 amendment approved by voters: No public money can support a non-public school.
“The words at the heart of this case are clear, cogent and commanding,” Gleicher said. The majority opinion “ignores the constitutional text and imposes a judicial gloss that contradicts the people’s will and the well-understood words they approved.”
The American Civil Liberties Union and public school groups challenged $2.5 million that was approved in 2016 for fire drills, inspections and other state requirements at private schools. Court of Claims Judge Cynthia Stephens blocked it.
The appeals court overturned Stephens’ decision, sent the case back to her and ordered her to apply its three-prong test.
Separately, Stephens also must decide whether money appropriated by the Republican-controlled Legislature needed approval from two-thirds of lawmakers. It passed only by a majority.
Dan Korobkin of the ACLU said the decision is “very disappointing.”
“What the majority seems to be saying is if it’s not literally for classroom instruction, then it’s OK,” Korobkin said. “The constitution doesn’t have that as the criteria. We seem to moving the goal posts farther and farther down the field.”
An appeal to the Michigan Supreme Court is possible.
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