Michigan

Michigan

Unfortunately, Michigan is not directly affected by Espinoza. The Michigan Constitution contains an extremely broad Blaine Amendment that states, in relevant part, “No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students,” Article VIII, Section 2. This language applies broadly to prohibit programs that assist student attendance at any private school, not just religious schools. However, it is possible that Michigan’s Blaine Amendment could be susceptible to a constitutional challenge under the theory that it was enacted to discriminate against Catholics, relying on Justice Alito’s concurrence in Espinoza. Indeed, there is already a case pending in the Michigan Supreme Court that presents ample historical evidence to support such a claim.

Constitutional Provisions
Compelled Support Clause
“No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion ….” Michigan Const. Art. I, § 4.

Blaine Amendments
“No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose.” Michigan Const. Art. I, § 4.

“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, preelementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students ….” Michigan Const. Art. VIII, § 2

Relevant Case Law

Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005)
The 1st U.S. Circuit Court of Appeals held that the Massachusetts attorney general properly denied certification of a proposed initiative to amend the state’s Blaine Amendment to allow public financial support to be directed to students attending private, religiously affiliated schools because a separate constitutional provision places the Blaine Amendment off-limits to the initiative process. The court further held that this other provision did not impair the free exercise of religion under the First Amendment because the exclusions did not discriminate on the basis of religious belief or status.

Matthew J. v. Massachusetts Department of Education, 989 F. Supp. 380 (D. Mass. 1998)
A Massachusetts federal district court held that the reimbursement of special education costs under the Individuals with Disabilities Education Act (IDEA) for a mentally ill high school student in a Christian school outside the state did not violate the Massachusetts Blaine Amendment because the state was compensating a child to whom it had abdicated its responsibilities under IDEA.

Attorney General v. School Committee of Essex, 439 N.E.2d 770 (Mass. 1982)
The Massachusetts Supreme Court held that a statute requiring transportation of private school students on public school buses was a community safety measure not unlike police or fire protection. Any benefit provided to the private schools was remote and did not constitute substantial aid sufficient to violate the Massachusetts Constitution.

Commonwealth v. School Committee of Springfield, 417 N.E.2d 408 (Mass. 1981)
The Massachusetts Supreme Court held that using public funds to pay for special education services from private schools was not for the purpose of founding, maintaining or aiding private institutions in violation of Massachusetts’ Blaine Amendment. The Court noted that paying for special education services in private schools was required only after it was first determined that a public school lacked the ability or desire to meet the needs of special education students and that this requirement was intended to benefit children, not to aid or promote private schools.

Bloom v. School Committee of Springfield, 379 N.E.2d 578 (Mass. 1978)
Seeing no difference between loaning textbooks to private school students and loaning them to the school, the Massachusetts Supreme Court held that Massachusetts’ textbook lending law was unconstitutional. The Court further observed that textbooks are of use only in the educational context and therefore are a “basic educational tool” to be distinguished from other basic government services like police and fire protection. 

Opinion of Justices to Senate, 514 N.E.2d 353 (Mass. 1987)
The justices of the Massachusetts Supreme Court opined that proposed legislation that would provide tax deductions for certain educational expenses (tuition, textbooks and transportation) incurred by taxpayers whose dependents attended public or nonprofit private primary and secondary schools would violate Massachusetts’ Blaine Amendment. 

Opinion of Justices, 259 N.E.2d 564 (Mass. 1970)
The justices of the Massachusetts Supreme Court opined that purchase by the commonwealth of secular educational services from private schools would violate Article XLVI, Section 2 of the Massachusetts Constitution, a precursor to Massachusetts’ current Blaine Amendment.

Opinion of Justices, 236 N.E.2d 523 (Mass. 1968)
The justices of the Massachusetts Supreme Court opined that the state could help finance construction projects at private universities without violating the Massachusetts Constitution.

Existing Private School Choice Programs
None

What You've Heard About Blaine Amendments

Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.

The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.

The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.

What You Need to Know After Espinoza

Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.

The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.

The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.

Select Your State

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