UPDATE (11/06/23): On November 6, 2023, the U.S. Court of Appeals for the Sixth Circuit held that the 1970 amendment to Michigan’s Constitution, which preserves public funding for public schools, is constitutional, affirming the lower court’s dismissal of the lawsuit that sought to have it struck down. As a result, Michigan’s long tradition of prohibiting taxpayer money from being used to fund private and parochial schools will continue.

Originally published April 6, 2022

Fighting to protect public education, the ACLU of Michigan and a group of allies recently joined together in opposing a new lawsuit that seeks to divert potentially hundreds of millions of tax dollars to private schools. 

At stake is the health of our state’s public education system – and with it, the health of our democracy.  

On the surface, the case might not seem all that significant because the plaintiffs purport to be asking for something modest: the ability to pay for private-school tuition using money from education savings accounts known as “529 plans.” People can take a tax deduction when they invest in the accounts, with the money growing tax-free.  

Partly because of a state constitutional amendment approved in 1970 by voters seeking to protect our public school system, Michiganders can’t use 529 plans to pay for private k-12 schooling. The lawsuit, Hile v. Michigan, seeks to change that. 

But it’s not the technical, tax-focused aspects of the case that make it so significant. We joined in opposing this lawsuit because it seeks to have the entire 1970 amendment struck down. 

Such a decision would go against both well-established legal precedent and a majority of Michiganders’ repeatedly expressed desire to keep taxpayer dollars dedicated to public schools, not private schools.  

The 1970 amendment  is clear:  

“No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school.” The amendment goes on to specify that no “tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property” may be provided by the state for such schools.  

Strong majorities reaffirmed their support for this principle at the polls in 1978 and again in 2000.  

In addition to enjoying strong public support, there are a number of other reasons to keep this important guarantee etched in our state constitution.   

Protecting Diversity and Inclusion 

When taxpayer dollars are used to support private schools, we are publicly funding everything they do. That can cause real problems.  Unlike public schools, private schools can pick and choose their students – opening the door to the potential for discrimination. In fact, attempts to divert public funds to private schools have roots in the so-called “voucher” systems devised to sidestep court-ordered public-school desegregation. As the National Education Association points out on its website:  

“The historical origins of vouchers come out of a Virginia county shutting down its public schools and opening white academies to avoid adhering to Brown v. Board of Education. It should escape no one’s attention that vouchers all too frequently have been used to further segregation and promote discrimination.”  

Private schools, unlike public schools, can also make curriculum choices without facing public accountability. If narrow or distorted perspectives on civics, history, culture, and even science are being taught in a private school, there is nothing that taxpayers can do about it. But the public at large should not be compelled to pay for the teaching of narrow views.  

One of the great benefits provided by an effective public school system is to bring diverse people together to learn about the world and each other. But when taxpayers are required to fund private education, public money can be used to separate and divide us.

Lacking Merit   

Intent on defending the 1970 amendment, the ACLU of Michigan and a host of allies recently filed an amicus curiae brief, also known as a friend of the court brief, in the case earlier this year.  

Our message to the court was clear: the suit is without merit and should be dismissed. Although there are many reasons for that, our brief focused on three key factors: 

• Michigan’s current policy is fully supported by long-established United States Supreme Court precedent. The law is clearly on our side.  
• The plaintiffs incorrectly contend that the 1970 constitutional amendment discriminates against religious schooling. It doesn’t. In Michigan, religious schools are treated exactly the same way as all other private schools. 
• We also contest the argument that the 1970 constitutional amendment was motivated by anti-religious prejudice. Michiganders overwhelmingly supported the amendment because they wanted limited taxpayer funds to be used to strengthen their public schools and ensure a better future for all children.  

Democracy Rooted in Public Education  

The idea that a healthy democracy requires well-funded, broadly inclusive public schools dates to our nation’s founding.  

Among those pursuing the then-revolutionary idea of using tax dollars to fund the education of “every rank and class of people” was John Adams. He and other early-American leaders emerging from the age of enlightenment clearly saw the need for a well-educated public able to make informed, reasoned decisions when casting their votes and voicing opinions regarding public policies.  

Education’s role as a cornerstone of democracy has also been repeatedly affirmed by our nation’s courts. To cite one particularly noteworthy example, there’s the unanimous opinion issued in Brown v. Board of Education, the landmark 1954 Supreme Court case that outlawed segregation in public schools:  

“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society,” wrote Chief Justice Earl Warren. “It is the very foundation of good citizenship.”  

That still holds true.   

A good public education is the great equalizer of our democracy: rich or poor, black or white, gay or straight, people who have disabilities and those who don’t – everyone has the right to a free, inclusive, high-quality, public education.  

To be sure, people also have a right to provide their children with a private school or religious-based education if they choose. But they don’t have a right to public subsidies to fund those alternatives.   

Battles on All Fronts  

The lawsuit we’re fighting isn’t an isolated threat. Instead, it is just one tactic in a well-funded effort to challenge our state’s constitutional commitment to public schools on multiple fronts.  

In addition to the court battle, proponents of using tax money to fund private schools late last year passed bills in both houses of the Michigan Legislature that would have allowed individuals to receive tax write-offs for donations to scholarship programs directed toward private school students.  

Gov. Gretchen Whitmer vetoed those measures, but now a statewide campaign has been launched to enact them into law anyway. If enough signatures are collected, the Legislature could vote the measure into law with no veto possible – taking the issue out of the hands of voters, a majority of whom have staunchly opposed using public money for private schools in past elections.  

The budget hit these tax credit schemes could inflict is significant. When Gov. Whitmer vetoed the tax write-off legislation, she cited “projections the program could cost the state $500 million in 2022 alone…”  

Even larger would be the cost to public education if these efforts gain traction, opening the door to a voucher-type system that allows for the massive public funding of our state’s private schools. That has been the ultimate longtime goal for the interest groups and wealthy donors funding these efforts, beginning in the 1990s and continuing through today.   

So far, the Michigan Constitution, and legal efforts like ours, have kept that door shut. We have engaged in this fight because it is one Michigan’s public school system – and the democracy it supports – can’t afford to lose.  

Growing up in a working-class Detroit household, Marilyn Kelly originally set her career sights on teaching, earning a BA from Eastern Michigan University and a master’s degree from Middlebury College in Vermont. While still in her 20s, Ms. Kelly won election to the State Board of Education and then began pursuing a law degree. Attending Wayne State University School of Law in the 1960s, she was just one of six women in her class. Elected to the Michigan Court of Appeals in 1988 and the Michigan Supreme Court in 1996, she became Chief Justice 13 years later, holding the position until 2010.

Included among her many honors is a lifetime achievement award from the ACLU of Michigan. The Detroit and Michigan Chapter of the National Lawyers Guild has honored her for a "life dedicated to justice and equality” and Michigan Lawyers Weekly named her "Woman of the Year” in 2012. Now the Distinguished Jurist in Residence at the Wayne State University Law School, she recently talked with us about her personal journey, the state of the women’s movement, her admiration for Madam C.J. Walker and more as part of our Women’s History Month activities.

Q: As a young person, what did you see as the horizons open to you?

A: The horizons were not high. Most women in my generation were told they should be homemakers and mothers. If they wanted to work outside the home, they might want to be a teacher, secretary, nurse or an airline stewardess. That was about it. In high school, when I was given vocational counseling, I was never urged to look into anything else. In fact, I was discouraged from considering any other profession. And that was typical at that time.

Q: Did that limit your dreams?

A: It definitely limited my dreams. I had always been enthralled by books of adventurous travel . Books about going to the arctic or into the jungle. Things like that. But women didn’t seem to get to do those things, and it seemed so unfair to me. Then, when I was maybe 15 or 16, I read an autobiography written by a woman marine biologist named Eugenie Clark, who was able to go scuba diving in all these places around the world to study marine life. I thought it was the most exciting thing I’d ever heard of. Eugenie got her first big job when she was hired by an employer in some far-off place who mistook her name for Eugene and thought he was hiring a man. When she arrived, he realized his mistake, but it was too late. And that is how she got her foot in the door.

Q: So, you initially went into teaching because that was one of the few options you thought was available to you?

A: Teaching did interest me, but it wasn’t my first choice. And, ultimately, I couldn’t see spending my entire life doing that. So, I began looking for other things.

Q: How did you end up going to law school and becoming a lawyer?

A: I sort of stumbled into that. When I was in my 20s, President Kennedy had been assassinated, but his words were still ringing in my ears: “Ask not what your country can do for you, ask what you can do for your country." So, I got active in the local political party in Albion, where I was teaching. Then a new state Constitution was adopted that, among other things, expanded the number of people serving on the state Board of Education, and I thought, “Why not me?” So, I ran and, much to the consternation of the editors at the Grand Rapids Press, I was elected to a statewide office at the age of 26. That certainly shaped my future. I began learning about the law because of the legal issues we were dealing with as a board. And I started thinking how really interesting the law was, which led me to decide to leave teaching and go to law school. It wasn’t a planned thing.

Q: Do you consider yourself a feminist?

A: Yes

Q: How would you define that?

A: I view myself as a human being on par with other human beings, male or female, and that gender shouldn’t determine my destiny. I also believe that in our society women have been discriminated against, and that discrimination has to be ended.

Q: When you went to law school at Wayne State University, there were only six women in your class. Did you feel like you were discriminated against?

A: Not while in law school. I was well-treated there. In fact, that’s one of the reasons I’m teaching there now – to give back to the university. But when I got into the legal profession, I definitely ran into discrimination. There were almost no women judges, and few women advocates. The women licensed to practice law back then were mostly relegated to work that took place behind the scenes. They did important work, but that work was not recognized. Women lawyers did not receive the same pay as men, and weren’t elevated to partnerships the way men were in the large and important law firms. There were few role models back then, and that made it harder for us to succeed, because we didn’t know how to pattern our behavior.

Men weren’t accustomed to women being their peers, or their superiors. For many men, that was a very difficult concept.

Q: How would you describe the state of the women’s movement today?

A: Things have changed greatly. Teaching at the law school, I have an opportunity to get to know young women who are becoming lawyers, and I see the jobs that are available to them, the partnerships available to them at the large firms. They feel empowered to take chances regarding what they do professionally. They feel they need to be respected, and that their views deserve to be heard. They expect to be treated as equals, and are willing to fight for that. And they’re going out into a world where men are more accustomed to working with women. That all represents a very large change. The atmosphere today is much better than what I experienced 50 years ago.

Q: What about for Black women and other women of color?

A: I think the situation for them remains discouraging. I’ve seen how much more difficult it is for them to advance professionally than it now is for white women. Their plight is different, obviously, because they must deal with racism as well as sexism. And changing that, with white women joining in solidarity, remains the next frontier in the women’s movement.

Q: Any recommendations regarding what people should be looking at during Women’s History Month?

A: One woman who’s an incredible inspiration is Madam C.J. Walker, an entrepreneur, activist and philanthropist who was born on a plantation in the 1860s and went on to become the first Black woman to be a millionaire. There are several good documentaries that tell her story. There’s also a dramatized series about her life, titled Self Made, that people can also watch.

Q: Is there anything we haven’t touched on that you’d like to express?

A: I’d like to say it is a good thing that we are celebrating Women’s History Month. It’s appropriate. This battle for women’s equality isn’t totally won. It is necessary for men and women alike to learn from history, and to see what women have been able to overcome to this point, and to understand the challenges that remain for women – all women – to be treated the same as men.