Today, Governor Gretchen Whitmer and Superintendent of Public Instruction Dr. Michael Rice filed a brief in the Michigan Supreme Court responding to arguments that MCL 388.1752b, which provides financial assistance to nonpublic schools in complying with certain state mandates, violates the Michigan constitution’s prohibition against state funding of nonpublic schools.
In their brief, Governor Whitmer and Superintendent Rice explained that they have closely reviewed this challenge in view of their sworn obligations to uphold the constitution, and have concluded that MCL 388.1752b’s funding of nonpublic schools is constitutional, but only in part.
“When we partner to ensure a great education for our kids, we must do so in compliance with the Michigan Constitution,” said Governor Whitmer. “As governor, I take an oath to uphold the constitution of our state. As always, I am ready to continue working to ensure every child, no matter their community, can get a quality education that puts them on a path to a good job, and will work with everyone who wants to reach that goal.”
In 1970, the People of Michigan added article 8, section 2 to the state constitution. This amendment made clear that “no public monies” shall be appropriated or paid by the Legislature “directly or indirectly to aid or maintain any private, denominational or other nonpublic . . . school,” and “no payment, . . . subsidy, grant or loan of public monies . . . shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school[.]” The People provided only one exception to this prohibition: “[t]he legislature may provide for the transportation of students to and from any school.”
The Legislature originally enacted MCL 388.1752b in 2016, and a lawsuit challenging its constitutionality was filed a few months later.
Governor Whitmer and Superintendent Rice became parties to this lawsuit upon taking office in 2019.
As explained in their brief, the Governor and Superintendent then undertook a careful examination of MCL 388.1752b, and concluded that the state can provide funds to nonpublic schools to help them pay the costs of complying with state mandates, but only if those mandates are related to student transportation.
Beyond that, the statute’s funding of nonpublic schools is constitutionally prohibited.
On January 1, 2019, when Governor Whitmer took her oath of office, she solemnly swore to support the Constitution of the United States and the constitution of the State of Michigan. Superintendent Rice took the same oath. The brief they have filed today reflects and reiterates their sworn commitment to that goal.
The case is Council of Organizations v. State of Michigan, Michigan Supreme Court No. 158751.