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  • Writer's pictureRobert Lusk

Mackinac Center Promises Appeal in Private School Finance Case

This blog has covered several court decisions, including U.S. Supreme Court decisions, striking down state laws that discriminate against religious schools. Michigan law is different. Unlike other states’ laws, Michigan law is facially neutral. The Michigan constitution bars all private schools, religious or secular, from receiving public money for k-12 education.

The Mackinaw Center’s most recent challenge to this law was rejected in Hile v. State of Michigan, Case No. 21-cv-829 (W.D. Mich. 2022). Judge Jonker’s opinion, issued on September 30, 2022, rejected a two-pronged challenge. The first prong was a Free Exercise claim based on a 2017 amendment to federal tax law that permits section 529 plans (like the Michigan Educational Savings Plan (MESP)) to make tax-advantaged payments of k-12 educational expenses. The second prong was an Equal Protection claim based on the “political process doctrine.”

Judge Jonker rejected the first argument based on federal-state comity. That is, generally a federal courts will not consider the merits of an argument that requires it to disagree with a state’s interpretation of its own law. Here, Michigan argued that, regardless of any amendment to federal tax law, Michigan tax law prohibited using the proceeds of 529 plans for k-12 educational expenses. Thus, federal-state comity, the court held, prevented it from looking for a Free Exercise violation behind Michigan’s interpretation of its own law. Additionally, plaintiffs were free to raise the issue in state court.

Judge Jonker also rejected the second argument. The political process doctrine posits that a facially neutral state law may be challenged on Equal Protection grounds if its real purpose is illegal discrimination. Judge Jonker noted the argument was based on a pair of vintage cases (1969 and 1982) that addressed state laws that had the effect of perpetuating race discrimination. Since then, the Supreme Court had narrowly limited the application of the political process doctrine to race discrimination cases, with some Justices taking the position it should be flatly rejected in all cases. Regardless, Judge Jonker held plaintiffs' evidence that Michigan law targeted religious schools, in particular, as opposed to private schools, in general, was insufficient.

The Mackinac Center has promised an appeal. Stay tuned.


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