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High Court rejects ban on religious school aid. How it impacts Michigan.

 U.S. Supreme Court
The U.S. Supreme Court has ruled that a private school voucher program in Maine cannot discriminate between private schools that are secular and those that are religious. Michigan forbids public spending on private education regardless of whether a private school is religious or not. (Shutterstock)

A Tuesday U.S. Supreme Court ruling that opens the door for public funding for students at religious schools won’t have an impact on Michigan — at least for now, according to legal experts.

The court case, Carson v. Makin, centers on a program in Maine that allows rural high school students access to state funds to pay for their private education if there is not a public high school nearby. The program pays up to a certain amount of tuition for those students to attend private schools, but only if they are secular. In its decision Tuesday, the nation’s highest court, by a 6-3 margin along ideological lines, said the state cannot subsidize some private schools while excluding those that are religious. 

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There is nothing neutral about Maine’s program,” wrote Chief Justice John Roberts in the majority decision. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.”

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Justice Sonia Sotomayor, one of three liberal justices in dissent, warned that the conservative dominated court had shifted from past precedents that permitted “States to decline to fund religious organizations” to the current court’s position “that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.”

The details of the case involve just a few thousand rural students who don’t have access to a local public high school, which is not the norm in Michigan or most of the nation. But the decision could affect as many as 37 states that have laws that currently allow state dollars to go to private, secular schools but ban the same type of funding for religious schools.

That’s not the case in Michigan. Unlike Maine, Michigan’s constitution bans the use of public dollars for all private education, religious and nonreligious. That is different from many states who have so-called “Blaine amendments” which explicitly ban public funding for religious schools. 

Michigan voters rejected an effort to amend the state’s constitution in 2000 to allow the state to fund private schools. But the battle is far from over. A pro-school-choice group backed by the DeVos family is now collecting signatures for a petition that, if approved, would allow people to earn tax credits for donating to a scholarship fund for both public and private school students. Despite missing a key deadline to turn in signatures, the group is hoping the legislature will adopt the initiative anyway.  

There is also a lawsuit pending that challenges the state’s 1970 constitutional amendment against public funding for private education. The Mackinac Center Legal Foundation is one of two legal firms representing the Michigan plaintiffs.

Michigan State University Professor of Law Frank Ravitch said Tuesday the state’s current constitutional amendment insulates Michigan from the immediate effects of the Supreme Court ruling. But he noted that the high court has aggressively expanded the place of religion in public life in recent years.  

“There are serious questions of divisiveness that could arise but I think as long as Michigan keeps its current constitutional provision (outlawing public funds for private schools), it should be okay. But the court has expanded this doctrine in such a quick and extreme way, it’s hard to say with 100 percent certainty.” 

Ravitch noted that in 2020 the Supreme Court ruled in a Montana case that states can’t extend tax credits to private schools while excluding religious schools.  

Tuesday’s ruling, he argued, expands the idea to “outright voucher programs.” Ravitch said it’s very possible that taxpayers will not want their tax dollars to go toward religious institutions they do not agree with, and schools that may discriminate against LGBTQ or other students. 

But Beth DeShone, advocacy director of the Great Lakes Education Project, a nonprofit that supports school choice, called the ruling “a victory for families,” though she agreed there is no immediate impact for Michigan families.

“It provides a lot of hope for families who are searching for options that may include religious schools,” DeShone said. 

Patrick J. Wright, director of the Mackinac Center Legal Foundation and vice president for legal affairs at the Mackinac Center for Public Policy, said Tuesday the ruling could encourage advocates for religious schools to bring more cases to the conservative-dominated U.S. Supreme Court to further broaden access to public funding.  

Wright represents the Mackinac Center in several lawsuits involving school funding, one of which, Hile V. Michigan, challenges the state’s decision to prevent families from using their 529 savings plans for tuition at private religious schools. That case, now in federal court, could help open the door for more direct efforts to provide state funds to such schools.

Michigan Association of Christian Schools Executive Director Tim Schmig said the line of recent Supreme Court cases provides hope there will be more “parental access” to “their own taxpayer dollars” to educate their children as they see fit, including in religious schools. Schmig said taxpayer funds should follow the students, instead of the systems. 

Likewise, Michigan State University professor of law and education policy Kristine Bowman said the ruling opens up the door to “greater privatization of elementary and secondary education.” 

She said it could also lead to other questions about the role of religion in public schools. In the long term, she said she wonders if this decision will affect the court’s precedent on prayer in school settings. The Supreme Court is expected to soon release a separate opinion on such a case, involving prayer led by coaches on a high school football field following a game.  

Dan. Korobkin, legal director for the ACLU of Michigan, said Tuesday’s decision will likely sharpen attacks by school-choice forces on the state’s constitutional ban on private school funding. 

“The political forces in Michigan that are trying to get public taxpayer dollars diverted to private schools now understand that if they can just get rid of Michigan’s constitutional restriction, there won’t be anything standing in the way from the U.S. Supreme Court in providing funding to religious schools,” he said. 

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