Since 1970, a clause in Michigan’s Constitution has prohibited the use of public funds to support the attendance of any student at any private school, regardless of the school’s religious or non-religious status. In 2000, Michigan voters rejected an effort to amend the state’s constitution to modify this constitutional clause and allow the state to fund private schools.
Yet in September 2021, five families sued the State of Michigan, arguing that this constitutional clause discriminates against religion in violation of the federal Constitution’s Equal Protection Clause. If successful, their argument would eliminate Michigan’s constitutional mandate that public funds must only go to public schools, opening the door for school-voucher programs that would divert money away from underfunded public-school systems.
The federal district court dismissed the lawsuit, emphasizing that Michigan’s constitutional prohibition on funding private schools is facially neutral toward religion. The plaintiffs appealed to the U.S. Court of Appeals for the Sixth Circuit.
On March 29, 2023, Americans United filed an amicus brief in the Sixth Circuit with seven other organizations, including the ACLU of Michigan, in support of Michigan. We explained 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.