In a controversial decision, the Michigan Court of Appeals voted 2‑1 to uphold a state statute that permits money from Michigan’s general fund to be allocated to nonpublic schools. Council of Orgs & Others for Ed About Parochiaid v State of Mich. Specifically, the funds were designated “to reimburse actual costs incurred by nonpublic schools in complying with a health, safety, or welfare requirement mandated by a law or administrative rule of this state.” MCL 388.1752b.
Critics of the statute argued that it violated Article 8, Section 2 of the Michigan Constitution, which provides in part, “No public monies or property shall be appropriated or paid . . . by . . . the state directly or indirectly to aid or maintain any private, denominational, or other nonpublic, pre‑elementary, elementary, or secondary schools.” The court, however, noted that the Michigan Supreme Court issued two relevant opinions on the topic: (1) its decision in Traverse City Sch Dist v Attorney General, 384 Mich 390; 186 NW2d 9 (1971), and (2) its Advisory Opinion re Constitutionality of 1974 PA 242, 394 Mich 41; 228 NW2d 772 (1975). Based on these two opinions, the Court of Appeals concluded that the Michigan Constitution prohibits state aid to nonpublic schools for “instructional or educational services,” and that aid is permitted to a nonpublic school where such aid is only “incidental” to a nonpublic school’s support and maintenance.
The court held that the Legislature may allocate funds to reimburse nonpublic schools for the actual costs of complying with state health, safety, and welfare laws. However, such allocation is only permitted if the nonpublic school’s action that complies with a health, safety, or welfare mandate “(1) is, at most, merely incidental to teaching and providing educational services to private school students (non-instructional in nature), (2) does not constitute a primary function or element necessary for a nonpublic school to exist, operate, and survive, and (3) does not involve or result in excessive religious entanglement.” The Court of Appeals remanded the case for the Court of Claims to examine and determine the specific “actual costs” for which a nonpublic school may be reimbursed under MCL 388.1752b.
In her partial dissent, Judge Gleicher argued that the Michigan Constitution was clear on this matter. However, the majority of the panel countered that, while it may agree with Judge Gleicher in a vacuum, it could not ignore the Michigan Supreme Court’s Traverse City and advisory opinion decisions.
The Supreme Court may look at the case in the coming months, so the majority’s claim very well coud be put to the test. We will have to wait for the ultimate conclusion of this case.