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Judge dismisses challenge to Michigan’s ban on public money for private schools

from michigan prohibition on public funding of private schools remains intact after a federal judge on Friday dismissed a legal challenge to that rule in the Michigan Constitution.

The case, brought by five families with support from the free-market Mackinac Center Legal Foundation, argued that Michigan’s constitutional ban on public funding of private education violated the US Constitution. Families want to use their tax-protected Michigan Education Savings Program accounts to pay tuition at private and religious K-12 schools.

The savings accounts were designed for college expenses, but plaintiffs and the state disagreed on whether K-12 expenses were eligible after a 2017 amendment to federal tax law.

“There is nothing in the records to show that Michigan approves of any tax-advantaged use of MESP funds for any primary or secondary school expense in private or public education,” wrote U.S. District Judge Robert Jonker in the Western District of Michigan.

The Mackinac Center said in a report Friday he plans to appeal the decision.

In 1970, voters approved a amendment to the Michigan Constitution which prohibits public financial assistance to any non-public school. The plaintiffs alleged that the clause violated their First Amendment religious rights and the Equal Protection Clause of the US Constitution. Although the provision of the Michigan Constitution does not target religious schools, plaintiffs argued it was motivated by anti-Catholic sentiment, pointing to rhetoric used during the amendment campaign five decades ago.

But Jonker, appointed to the bench by President George W. Bush, wrote that Michigan’s private school offer is “neutral on parochial education” on its face, and that there was no precedent supporting the use of the plaintiffs’ “narrow political process theory”. — that the change was motivated by a discriminatory sentiment — in a tax law case.

Many state constitutions include some prohibition on public funding of private schools, but most focus only on parochial schools. Michigan focuses on all private schools – regardless of whether they are parochial or secular – which is why it has not been affected by a recent US Supreme Court ruling overturning a so-called Blaine Amendment case in Maine. The Maine lawsuit focused on public funds that were sent to private rural schools that were secular, but not rural faith-based schools.

The Michigan Trial is part of a two-pronged effort by school choice advocates to provide state support to parents who wish to send their children to private school.

A ballot initiative backed by former US Secretary of Education Betsy DeVos would use a system of tax breaks to fund public and private school scholarships for students in kindergarten through 12th grade. While supporters of the initiative missed the June deadline to file signatures, they still hope the The Michigan Legislature will vote on the issue this fall or next year.

If the scholarship program passes, opponents plan to file a lawsuit claiming the policy violates Michigan’s Constitution.

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