States prohibiting all non-public school funding may escape Trinity Lutheran impact

An injunction issued this week in Michigan sheds light on public funding of private schools post-Trinity Lutheran, in which the Supreme Court recently found that a Missouri constitutional provision prohibiting funding of religion was discriminatory because it treated religious groups differently from other non-profits. In Michigan, however, funding to all non-public schools is prohibited in the state constitution.

On July 25, 2017, the Michigan Court of Claims upheld a preliminary injunction barring the disbursement of $2.5 million that the legislature had allocated to help private schools cover the cost of complying with state mandates.

Judge Cynthia Stephens had issued the preliminary injunction on July 6, but asked lawyers to address whether the Supreme Court’s recent decision in Trinity Lutheran Church applied to the Michigan facts. In that case, the Court found that a state law explicitly barring religious organizations from participating in state funding programs were impermissibly discriminatory, at least when it came to playground resurfacing.

The Michigan Constitution Article 8, section 2 prohibits state funds from going to any private school, religious or not. It states, in pertinent part, “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.”

Judge Stephens found that this section applied equally to all private schools, regardless of religious affiliation. She also cited footnote 3 of the Trinity decision which states that the Supreme Court’s decision was only applicable to “playground resurfacing.”

This is a temporary decision which will remain in place until the litigation is concluded.

While this case may not speak directly to school voucher issues, the fact that the Michigan constitution does not single out religious schools would seem to limit arguments that the law discriminates against religious organizations since all non-public schools are treated equally.

Case:  Council of Organizations and Others for Education About Parochiaid v. State of Michigan, Case No. 17-000068-MB.

Photo:  DepositPhotos.com / v-strelok