Public funds for private schools

The state budget which went into effect October 1 allocates $2.5 million to fund private schools.  Regardless of whether this is a wise policy choice, it clearly violates the Michigan Constitution. Governor Snyder recognize the dubious legality of the measure when he signed it, but said he would let the matter be litigated. Now the Michigan Supreme Court has declined to issue an advisory opinion, clearing the way for a lawsuit.

The budget's multi-million dollar allocation of public funds to private schools is meant to be a reimbursement for state-mandated requirements such as background checks for employees, immunizations and even compliance with building, health and fire codes. 

The Michigan Constitution seems to, in no uncertain terms, prohibit this funding:

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. [1963 Const, Art 8, § 2.]

Governor Snyder acknowledged as much in signing the budget: "With respect to the non-public piece of this bill, it's to address mandates put on by the state.  There are some potential legal issues associated with that . . . but I thought it was appropriate to move ahead and then address the legal question."  Detroit Free Press, June 28, 2016.

The Governor then asked the Michigan Supreme Court for an advisory opinion on the constitutionality of the measure.  In such a proceeding, rather than having an adversarial process where a challenger can argue against the constitutionality and the state could defend it, the court may simply opine without the benefit of argument.  Or, as happened early in Governor Snyder's first term, the Attorney General may present both sides to the court.  However, the court declined the governor's request for an advisory opinion Oct. 5.  Detroit Free Press, Oct. 5, 2016. 

The governor's spokesman opined that payments now should proceed to private institutions. Id. That process is likely to proceed unless a lawsuit is filed.