Judge rejects attempt to divert public tax dollars to private education 

By: - October 3, 2022 9:40 am

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A federal judge has dismissed a legal challenge to Michigan’s constitutional prohibition on using public funds for private education.

The decision, released Friday by U.S. District Judge Robert Jonker in Michigan’s Western District, rejected the argument advanced by the free-market Mackinac Center Legal Foundation that Michigan’s prohibition on such expenditures violated the U.S. Constitution.

The suit was brought forward by five families who sought to use their Michigan Education Savings Program (MESP) accounts to pay for tuition at private K-12 religious schools.

MESP accounts were originally designed as tax-protected shelters for college expenses, but following a 2017 change in federal tax law, the plaintiffs contended they were available for K-12 expenses.

Jonker disagreed, ruling that there was no record of the state “approving any tax-advantaged use of MESP funds for any grade or secondary school expense in either private or public education.”

In a statement Friday, the Mackinac Center said it planned to appeal the ruling. 

“Michigan’s Blaine Amendment, enacted in 1970, is the most restrictive in the country,” it read. “The amendment prohibits the use of any public funds to support families who choose private educational opportunities.”

The statement references a voter-approved amendment to Michigan’s Constitution that prohibits public financial aid for any nonpublic school. 

The plaintiffs alleged that because anti-Catholic sentiment was a motivating factor in its passage, it violated the equal protection clause in the U.S. Constitution. 

Jonker, who was nominated to the bench by President George W. Bush, again disagreed, saying that because Michigan’s prohibition applies to all private schools, both secular and religious, the argument lacked precedent, especially in a tax law case.

“The theory fails on the merits because it would require extending an already tenuous doctrine into an entirely new arena and to an entirely different kind of legal provision,” Jonker concluded.

Former Secretary of Education Betsy DeVos, October 3, 2019. | Official White House Photo by Stephanie Chasez via Flickr Public Domain

Despite the failure of the lawsuit, proponents of diverting public tax dollars to private religious education have another path toward fulfilling that goal.

The Let MI Kids Learn ballot initiative, backed by former U.S. Education Secretary Betsy DeVos, seeks to fund both public and private school scholarships for K-12 students through a series of tax breaks.

Even though Let MI Kids Learn missed the June 1 deadline to submit petition signatures for the November ballot, the Michigan Legislature could still enact the plan, bypassing Democratic Gov. Gretchen Whitmer’s veto pen.

That measure is backed by Whitmer’s GOP opponent, Tudor Dixon, who has been endorsed by DeVos. The two will face off on Nov. 8.

However, opponents say if the scholarship program is passed into law, they plan to file suit that it violates the Michigan Constitution.


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Jon King
Jon King

Jon King is the Senior Reporter for the Michigan Advance and has been a journalist for more than 35 years. He is the Past President of the Michigan Associated Press Media Editors Association and has been recognized for excellence numerous times, most recently in 2022 with the Best Investigative Story by the Michigan Association of Broadcasters. He is also an adjunct faculty member at Cleary University. Jon and his family live in Howell.