School-choice backers seek to expand use of taxpayer funds for religious education
School-choice backers seek to expand use of taxpayer funds for religious education
They’re calling a portion of Michigan Constitution a ‘Blaine Amendment’
Advocates of using taxpayer dollars to support religious education won a key victory in 2022’s Carson v. Makin decision, where the U.S. Supreme Court ruled that a state, in that case Maine, that has a school voucher program to fund private education cannot discriminate against a religious school simply because it is religious. Now, supporters of religious schools hope to build on that ruling: In the Hile v. Michigan case, they are trying to get public funds available for religious schools1 even if the state doesn’t currently provide funds to nonreligious private schools.
Specifically, they’re trying to invalidate a clause in the Michigan Constitution that says that the only schools that can receive public funds are public schools.
Plaintiffs Jill and Joseph Hile and four other parental couples initiated their action against the state government of Michigan claiming that Michigan’s ban on public money for private schools violates the equal-protection clause of the 14th Amendment of the U.S. Constitution by discriminating against religious students. They lost their case in the federal trial court, and lost a second time in a November 2023 ruling of the U.S. Sixth Circuit Court of Appeals.
Now they are asking the U.S. Supreme Court to review the case. If they succeed, Hile v. Michigan could become the blockbuster church-and-state case of the 2024-25 term. Legal briefs submitted by the parents and their supporters have the backing of a variety of school-choice organizations such as EdChoice and the Manhattan Institute for Policy Research. As of now, the high court hasn’t agreed to take any notable church-and-state cases for the coming year.
The plaintiffs are relying in part on three previous cases in which the Supreme Court gradually expanded the ability of states to use public money for religious schools. In addition to Carson v. Makin, they are:
Trinity Lutheran Church of Columbia v. Comer (2017), which said that a Lutheran school should receive public money for a playground project.
Espinoza v. Montana Department of Revenue (2020), where it was ruled that a public scholarship program that allows students to attend private schools cannot discriminate against religious schools.
The plaintiffs are referring to Michigan’s law as a type of “Blaine Amendment,” named after a U.S. constitutional amendment that was proposed by Maine U.S. Rep. James B. Blaine in 1875. The proposed amendment, which would have required that no public money “shall ever be under the control of any religious sect” passed the U.S. House but didn’t the U.S. Senate. But many states approved similar provisions in the years that followed soon after — and there’s no question that the state-level Blaine amendments were fueled by anti-Catholic sentiment.
Technically, Michigan’s constitutional provision is different from other Blaine amendments in that it doesn’t distinguish between religious and nonreligious private schools. But the plaintiffs claim that doesn’t matter because nearly all private schools in Michigan are religious in nature.
In their brief asking the Supreme Court to hear their case, the plaintiffs argued:
The historical record — including the Michigan Supreme Court’s own finding — demonstrates that Michigan’s Blaine Amendment was motivated by religious animus and impacted religious schools almost exclusively. In other words, the Michigan Blaine Amendment’s facial neutrality is a sham, and it shares the same anti-religious pedigree of constitutional provisions that target “religious” or “sectarian” schools for exclusion from public-benefit programs.
Absent this Court’s review, Michigan will continue to discriminate against religious schools and families using a state constitutional provision that is indistinguishable in intent and effect from the provisions this Court struck down in Trinity Lutheran, Espinoza, and Carson. Worse, Michigan’s Blaine Amendment likely will be a model for other states that want to circumvent this Court’s precedent and can do so by cloaking their Blaine Amendments in facially neutral language.
That argument wasn’t successful with the Court of Appeals. Writing for the 2-1 majority2, Justice Jane B. Stranch said in effect that the Michigan Constitution involved drawing a line between public and private schools, not between religious and nonreligious schools.
Calling the Michigan provision a Blaine Amendment is “unsupported by the historical record,” Stranch also wrote.
Among the organizations that has sided with the state of Michigan is Americans United for Separation of Church and State. Americans United has argued that:
... Michigan’s prohibition on public funding of private education does not have a discriminatory purpose or effect because it hinges on the non-public nature of the schools, not their religious status, and that a state’s decision to fund public schools does not create a corresponding duty to fund private schools.
Supreme Court justices are scheduled to discuss in a private conference on Sept. 30 whether they should accept the case. A decision to hold a hearing on the case or refuse to hear the appeal would most likely come after that date.
Technically, public money in a school voucher programs is given to students or their parents, who in turn use it to pay for tuition or other school expenses. Legally, this is considered an indirect form of aid for the schools.
The one dissenting vote was on a technical matter not related to the substance of the plaintiff’s case. In effect, the ruling was 2-0 for the justices that ruled on the substance of the parents’ arguments. Of the two, one was a Barack Obama appointee, and the other was appointed by Donald Trump. The dissenter was also a Trump appointee.