Supreme Court won’t weigh Michigan ban on state funding for private schools

The Supreme Court will not weigh whether Michigan’s ban on public dollars for private schools can stand, allowing a decades-old amendment to the state’s constitution to remain intact.   

Five families and a parental choice advocacy group sued Michigan over a 1970 state constitutional amendment that bars direct or indirect public financial support for sectarian schools. They claim the provision violates the U.S. Constitution’s guarantee to equal protection. 

Despite Supreme Court warnings against “depriving” religious schools of equal opportunity to public benefits, the amendment has survived in Michigan because the state has “cleverly defended” it as targeting any nonpublic school, not just religious schools, the families argued. 

“If this Court does not act, Michigan’s workaround will become the loophole through which many states discriminate against religious families and individuals,” lawyers for the families wrote in their petition to the high court.  

Michigan is one of 37 states with such a provision, often dubbed Blaine amendments after a former U.S. congressman, James Blaine, whose effort to pass a similar federal measure in the 1800s failed but spurred copycat provisions across the country.  

Denying religious schools public funding was a popular stance then, when discrimination against Catholics was abundant, the families said, citing a 2000 opinion in which Justice Clarence Thomas wrote of Blaine amendments that it was an “open secret that ‘sectarian’ was a code for ‘Catholic.’” 

But in Michigan’s brief to the justices, state Solicitor General Ann Sherman argued that the state’s constitutional amendment is “not a Blaine Amendment” at all; instead, it was a response to scarce public funds being allocated to any nonpublic schools. 

“Petitioners attempt to surmount this obstacle by tying the amendment’s passage in 1970 to the Blaine Amendment of nearly a century prior,” Sherman said, adding that the families’ suggestion that “animus” against religious schools helped pass the provision is “unwarranted.” 

The Michigan families told the justices they each have school-age children for whom they wish to obtain public assistance for private, religious school tuition in the state. Each parent is also a member of the Parent Advocates for Choice in Education (PACE) Foundation.  

The state, however, argued that the families’ petition to the high court was nothing but a “generalized grievance” about a “legitimate legislative choice” and that they failed to show standing to bring the challenge, noting that their complaint did not allege the parents nor children were Catholic or religious at all.  

“Without basic allegations like these, one wonders how petitioners could make out a claim that they are treated unequally on the basis of the protected characteristic of religion,” Sherman wrote.