In a Nutshell

• A 1970 voter-approved constitutional amendment prohibits the State of Michigan from providing public aid of any kind to private elementary and secondary schools.
• Two recent U.S. Supreme Court decisions dealing with similar bans in other states left Michigan’s prohibition intact.
• Now comes a federal challenge to Michigan’s prohibition; a favorable ruling in the case would open the door to a state income tax break for families sending their children to private K-12 schools.

For the last 50 years, Michigan’s nonpublic elementary and secondary schools have been completely frozen out from receiving any taxpayer assistance. A recent federal court complaint seeks to strike down Michigan’s strictest-in-the-nation constitutional ban on providing public assistance to nonpublic K-12 schools. This action comes on the heels of two other landmark U.S. Supreme Court decisions dealing with similar bans in other states, but that did not provide any relief to Michigan’s 500-plus nonpublic schools.  Should plaintiffs in the current legal challenge prevail, Michigan’s school choice landscape would be substantially transformed and open the door to private school educational opportunities for K-12 students across the state.

Background

In the fall of 1970, following a very heated public debate over the preceding two years , Michigan voters approved a constitutional amendment banning public aid to any nonpublic K-12 school. This prohibition (Article VIII, Section 2) is commonly referred to as Michigan’s “Blaine Amendment” – named after former U.S. politician James Blaine (Maine). Similar bans are found in state constitutions across the country dating back to the late 1800’s, but Michigan’s is the most recent one adopted.

As many states continued to welcome foreigners to their cities in the late-19th Century with the industrialization of the United States, Blaine saw the proliferation of Catholic schools as a direct threat to the “public” schools of the era that leaned heavily on Protestant teachings and prayer. In 1875, then-Congressman Blaine championed a failed amendment to the U.S. Constitution to ban the use of public funds for so-called “sectarian” schools run by religious institutions (Catholic schools). 

The defeat of his federal constitutional amendment (it passed the U.S. House but narrowly failed in the Senate) did not deter Blaine and his anti-Catholic supporters from pursuing similar funding prohibitions in state constitutions. Over the next quarter of a century, a number of states (many newly admitted western states) adopted public funding bans to their constitutions fueled by anti-Catholic bigotry and anti-immigrant sentiment. Today, 37 states have these Blaine amendments, some more strict than others.

Michigan’s Blaine Amendment is considered one of the strictest in the country because it bans not only aid to sectarian schools, but more broadly all “nonpublic” schools. In addition to the religiously neutral language, the amendment prohibits both direct (i.e., state appropriations) and indirect (i.e., tax credits) financial aid. Despite this ban, Michigan law allows nonpublic school students to enroll (and therefore be counted for funding purposes) in non-core, elective classes offered by public schools. Commonly referred to as “shared time” enrollment, these arrangements are permissible under the Blaine Amendment. 

There are 538 nonpublic schools registered with the State of Michigan serving an estimated 92,000 K-12 students; currently the Michigan Constitution freezes these schools, and by extension the students attending them, from receiving any taxpayer assistance.

Two U.S. Supreme Court Rulings, but no Relief (for Michigan)

Two U.S. Supreme Court decisions have illuminated the uniquely stringent nature of Michigan’s anti-aid Blaine Amendment. While favorable decisions in both cases (one in Missouri and another in Montana) opened access to public funding to private schools in those states, neither ruling provided any direct relief to Michigan private school students from their state’s Blaine Amendment. In part, the inapplicability of these decisions to Michigan lies in the specific facts and issues involved in each case. But, importantly, the decisions also show just how restrictive our Blaine Amendment is.

The Missouri case asked whether a church-run preschool could be eligible for publicly funded playground equipment. For school choice advocates following the case, the key question was whether state Blaine amendments found across the country can be used to exclude religious schools from private school choice programs. A broad ruling by the Court would have meant that these amendments could no longer be used to challenge the constitutionality of private school choice programs (such as vouchers, tax credits, etc.). 

However, the majority’s opinion was tailored very narrowly to the facts of the case and did not extend to private school choice programs. A footnote contained in the opinion confirms this. “This case involves express discrimination based on religious identity with respect to playground resurfacing,” the footnote read. “We do not address religious uses of funding or other forms of discrimination.” 

Even if the Court had issued a broader decision in the Missouri case to encompass school choice programs, Michigan would not have been impacted because the state’s Blaine Amendment does not allow ANY type of private school choice program.

Relief from numerous Blaine amendments across the country appeared possible when the U.S. Supreme Court decided to hear the Montana case. This case dealt with a state-sponsored tax credit scholarship and whether the credit could be used to cover expenses (tuition) at a private Christian school. In fact, relief did come in 2020 following the Court’s 5-4 ruling to strike down Montana’s ban on aid to private religious schools. The high Court’s decision sent a message across the country that state anti-aid constitutional provisions that discriminate against religious schools violate the U.S. Constitution.

But, the school choice victory enjoyed in other states did not translate into any type of relief for Michigan students. Again, the state’s uniquely restrictive Blaine amendment language outlawing ANY nonpublic school aid (religious or secular) meant that there could be no discrimination on the grounds of relgious affiliation. And while it is clear from the historical record that Michigan’s Blaine amendment was the direct byproduct anti-Catholic animus, the universal prohibition on private school aid means that families are walled off from both religious and secular school choice options.

The Michigan Case

At the end of September, five Michigan families filed a lawsuit in the U.S. District Court for the Western District of Michigan to gain access to educational opportunities for their children. At issue is the state income tax treatment of Michigan Education Savings Program (MESP) accounts, the state’s tax-advantaged savings program for college and, now, elementary and secondary education expenses. 

While the details of this case are fairly technical, centering around federal tax law changes and their interaction with Michigan’s state personal income tax, the main thrust of the complaint is the state’s discriminatory tax treatment of elementary and secondary education tuition payments. In brief, Michigan’s Blaine Amendment prohibits families from enjoying a state “tax break” for tuition paid from MESP accounts to private K-12 schools. But, families paying tuition to attend public K-12 schools can enjoy the state income tax advantages arising from the federal law change.¹ We discussed the intricacies of the state tax treatment of MESP accounts previously.

The complaint asks the federal court to strike down Michigan’s Blaine Amendment on the grounds that it violates the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause of the U.S. Constitution. With this relief, the five Michigan families at the center of the lawsuit, as well as all other families that chose to send their children to private schools, would be able to immediately take advantage of the state income tax break for tuition paid from MESP accounts. This change would make the financial challenge of private school tuition slightly more affordable for families.

For more than 50 years, the Michigan Constitution has banned private school choice programs. This prohibition has gained significantly more attention during the current pandemic. Nearly two years removed from the onset of the worldwide COVID-19 pandemic and the resultant educational disruptions that continue to plague the delivery of K-12 services, many Michigan school children are still in search of a learning environment that best fits their needs. While many public schools have opened their doors to in-person instruction this fall for the first time since early 2020, some students and families would certainly benefit from having access to private school options. The tuition required to attend these schools likely stands in the way of accessing such options.

Footnotes:

1. Non-resident students choosing to attend public school outside of their assigned school district can be charged tuition by the enrolling district. A number of public schools, including Birmingham Public Schools, recoup a portion of their costs for educating non-resident students by charging families tuition.

Permission to reprint this blog post in whole or in part is hereby granted, provided that the Citizens Research Council of Michigan is properly cited.