Michigan Supreme Court Allows Reimbursement Funds to Go to Non-Public Schools

The Michigan Supreme Court, in a split 3-3 decision issued on December 28, upheld a 2016 law reimbursing nonpublic schools for complying with state mandates.

The Michigan Legislature had appropriated more than $5 million for the reimbursement program between 2016 to 2018, which would reimburse Michigan nonpublic schools for the cost of complying with mandates involving health and safety measures, even when those funds are paid directly to the nonpublic school.

The funding was held back by a lower court which issued an injunction because it violated the state Constitution since some of the funds would pay the employees of those schools. The Court of Appeals overruled the lower court, and the Supreme Court’s split decision means that the favorable Court of Appeals ruling stands.

Justices Stephen Markman, Brian Zahra and David Viviano affirmed the lower court’s order, while Justices Bridget McCormack, Richard Bernstein and Megan Cavanagh wrote for its reversal. Justice Elizabeth Clement recused herself from the ruling due to her prior involvement as chief legal counsel under former Gov. Rick Snyder.

“For a nonpublic school, or any other organization in Michigan, complying with general health, safety, and welfare laws is just a cost of doing business,” Justice Megan Cavanagh wrote. “And to say that paying a portion of a teacher’s salary does not support that teacher’s employment is a ‘forced’ construction, to say the least.”

Justice Markman disagreed with the arguments that complying with state mandates is a necessary element of a private school’s existence, and that funds are impermissibly paying employee salaries, arguing that the state funds were permissible because they did not support educational services at the private schools.

“To the extent that the MCL 388.1752b indirectly reimburses nonpublic-school employees for complying with state health, safety, and welfare mandates, those funds are necessarily not being used for employment regarding educational matters,” Markman wrote.

He added that the appropriation law “only exercises the ‘police powers’ of the state on behalf of the ‘health, safety, and welfare’ of nonpublic-school students, which is not proscribed by our Constitution.

The case returns to the Court of Claims to decide if the Department of Education properly limited the program to non-educational services.

Agudas Yisrael filed an amicus brief which argued that the provision in the Michigan state constitution that prohibits state aid to nonpublic schools was adopted primarily due to anti-Catholic bigotry, and should be struck down. It also stated that nonpublic school reimbursements for mandated services are constitutional and that denying such benefits to religious schools would be a violation of the Free Exercise Clause of the US Constitution.

The affirmation by the Court of Appeals ruling did not rule on the constitutionality of the state’s constitutional amendment but noted that recent developments “may conceivably warrant consideration in a future case addressing the constitutionality of that amendment.” They also referenced three recent United States Supreme Court cases, including last month’s Roman Catholic Diocese of Brooklyn v Cuomo.

The original case challenging the legality of reimbursing non-public schools for mandated services was brought by The Michigan Association of School Boards, the state chapter of the American Civil Liberties Union, and 11 other plaintiffs. The law as defended by the Michigan Catholic Conference and the Michigan Association of Non-Public Schools, who were joined by Agudas Yisrael of America and others.

The New York State Legislature established a reimbursement program in 1974, with Rabbi Moshe Sherer of Agudas Yisrael taking the lead in this pioneering measure along with other nonpublic school advocates.

“The overdue Supreme Court decision is great news for nonpublic schools in Michigan and the families they serve,” said Rabbi A. D. Motzen, Agudath Israel’s national director of state relations. “We hope this ruling is the first step to eventually overturning Michigan’s ban on nonpublic school aid.”