In Hile v. State of Michigan, Case No. 22-1986 (November 6, 2023), the Sixth Circuit rejected a political process challenge to Michigan's "parochiad" prohibition against publicly funding private schools. The prohibition, added to Michigan's constitution by ballot initiative in 1970, provides:
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.
The language is clear. What, then, was the issue?
The plaintiffs argued that, even though the parochiad prohibition was facially neutral, it was intended to disadvantage church-affiliated schools. Discriminating against church-affiliated schools is unconstitutional under recent United States Supreme Court decisions. Plaintiffs alleged there was significant evidence that, in 1970, the amendment was presented as an antidote to the indirect support of Catholic schools. Therefore, plaintiffs argued, the prohibition's facially neutral language was merely a facade for a constitutional amendment intended to stack the deck against religious schools. This relatively arcane argument is known as the "political process theory."
Twice, in 1969 and 1982, the United States Supreme Court struck down facially neutral legislation obviously intended to discriminate against Black Americans. The Sixth Circuit, evaluating plaintiffs' argument, noted the political process theory had never been applied outside the arena of racial discrimination. The Sxith Circuit also noted the political process theory may not be viable at all given the Supreme Court's 2014 decision in Schuette v. Coalition to Defend Affirmative Action, upholding an amendment to Michigan's constitution prohibiting affirmative action in university admissions. The Sixth Circuit continued, noting that, even if the theory survived Schuette, it was clearly limited to cases alleging racial discrimination and this was not such a case. Finally, the Sixth Circuit observed that, in 2000, almost 70% of Michigan voters rejected a ballot initiative to repeal the parochiad prohibition. Accordingly, whatever animus might have tainted the 1970 referendum was erased by the 2000 election.
It is unlikely the Supreme Court will choose to review the Hile decision. As noted, in recent years, the Court has clearly prohibited discrimination against church-affiliated private schools becuase of their affiliation. There is no remaining confusion on this point. Furthermore, in Schuette, the Supreme Court virtually interpretted the political process theory out of existence. Thus, Hile most likely signals an end to legal challenges to Michigan's parochiad amendment.
This does not mean the issue will not come up again. There are powerful and persistent constituencies that support (and oppose) parental choice in education, including parental choice over the use of tax dollars for education. Conceiveably, one or more of these groups may mount another ballot initiative to eliminate or limite Michigan's parochiad prohibition. Alternatively, the issue may arise at the federal level though one or more of the Spending Clause statutes that funds public education. Time will tell.