For over 50 years, Michigan’s Constitution has strictly prohibited public aid to and taxpayer funding of private and religious schools. However, in 2016 the legislature appropriated $2.5 million to “reimburse” private and parochial schools for complying with legal requirements that apply to all schools in Michigan. In 2017 the ACLU of Michigan formed a coalition with public school administrators, teachers, and parents to file a lawsuit challenging the constitutionality of the funding, arguing that the appropriation should be struck down because it violates the state constitutional requirement that reserves public education funding exclusively for public schools.
In 2018 Michigan Court of Claims Judge Cynthia Diane Stephens ruled in our favor, declared the statute unconstitutional, and issued a permanent injunction prohibiting the state from funding private schools. But the state appealed, and the Michigan Court of Appeals reversed by a vote of 2-1. We then appealed to the Michigan Supreme Court, which affirmed the Court of Appeals ruling in 2020 by an equally divided vote. The case was then remanded to the Court of Claims for consideration of our additional arguments as to why some or all of the funding is unconstitutional. In February 2022 Judge Stephens entered a final judgment allowing some of the reimbursements but not others.
Meanwhile, in September 2021 a new lawsuit was filed in federal court by right-wing groups, challenging the restrictions of Michigan’s Constitution as a violation of the United States Constitution, arguing that the restriction is motivated by anti-religious animus. In January 2022 we led the coalition of public school supporters in filing a friend-of-the-court brief in which we argued that Michigan’s restriction is constitutional because its purpose and effect is to reserve limited public funds for public schools, not to discriminate against religion. In September 2022 Judge Robert Jonker dismissed the federal lawsuit, but without reaching the merits; he ruled that because the suit was brought in the specific context of a dispute over state tax deductions, it should have been brought in state court. (Council of Organizations & Others for Education About Parochiaid (CAP) v. State of Michigan; Hile v. State of Michigan; ACLU Attorney Dan Korobkin; co-counsel Jeffrey Donahue of White Schneider and Brandon Hubbard, Phillip DeRosier, and Ariana Pellegrino of Dickinson Wright.)