A group of Michigan parents may soon get their case before the United States Supreme Court to challenge the state constitution’s broad prohibition of public funding for private and parochial schools.
The Mackinac Center for Public Policy and the Bursch Law firm, acting on behalf of the parents and the Parent Advocates for Choice in Education, have filed a writ of certiorari requesting the U.S. Supreme Court hear their challenge to Michigan’s Blaine amendment. They expect a response by July 12.
The Hile v. State of Michigan lawsuit was first filed in 2021 by the families who want to use their tax-exempt savings in the Michigan Education Savings Program to help pay for private achool.
In September 2022, the U.S. District Court for Western Michigan dismissed the parents’ claim that Michigan’s constitution violates the provision for free exercise of religion guaranteed by the U.S. Constitution. In November 2023, the U.S. Court of Appeals for the 6th Circuit also ruled in favor of Michigan’s state constitution.
What is dubbed Michigan’s “Blaine amendment,” passed by the state’s voters in 1970, prevents any public dollars from being used for any nonpublic school expenses, including funds from education savings accounts. Michigan’s amendment is considered the most restrictive of any in the country.
Named for the congressman who introduced it, the original proposed 19th-century Blaine amendment to the U.S. Constitution, which would have banned government aid to “sectarian” schools, failed in Congress. These efforts were also brought before state legislatures. A total of 37 states enacted laws and constitutional provisions called Blaine amendments prohibiting public support for private sectarian schools.
The Supreme Court watered down these prohibitions in Espinoza v. Montana Department of Revenue, which ruled in 2020 that Montana’s scholarship program for students attending private schools cannot discriminate against religious schools, citing the free exercise clause of the Constitution. However, the ruling did not apply to Michigan because Michigan prohibits public funding of students in any nonpublic K–12 school and does not explicitly reference religious schools.
According to the nonprofit EdChoice, 32 states have school choice provisions, with universal or nearly universal choice programs in 11 states. The latter include scholarship programs and education savings accounts that are funded by tax credits and vouchers.
In a brief to the U.S. 6th Circuit Court of Appeals, Mackinac Center recalled the history of anti-Catholic bigotry in the 19th century when immigrants came to the U.S. and asked for public support for Catholic schools. At the time, public education included Protestant prayer and Bible study under the guise of “nonsectarian” instruction, the brief indicated.
Michigan was no stranger to anti-Catholic sentiment, which continued well into the 20th century. For instance, a proposed 1920 amendment to require all children ages 5 to 16 to attend public schools failed to win voters’ support. This was when 1 in 20 Michigan children attended Catholic schools. The Ku Klux Klan supported a similarly failed initiative in 1924.
In 1960, Citizens for Educational Freedom was founded at a Lutheran church in Detroit as an ecumenical effort of Catholic, Christian Reformed, and Lutheran Michiganders advocating school choice. While they were frustrated in efforts to include inclusive language in a new state constitution, they defeated the American Civil Liberties Union and saw Republican Gov. George Romney sign a bill allowing public school buses to transport children to parochial schools, according to a Catholic News Agency report.
Professor Nicole Garnett of the Notre Dame Education Law Project, along with Ilya Shapiro and Tim Rosenberger of the Manhattan Institute, have also filed briefs to the U.S. Supreme Court in support of the Michigan parents. They argue that Michigan’s provision is unconstitutional, warning that if it stands, other states may impose religious discrimination under the guise of “neutral” constitutional provisions that prohibit funding to secular and religious schools alike. They called on the court to “put a stop to this type of anti-religious discrimination” once and for all.
