Michigan Appeals Court OK's State Funding For Incidental Costs of Private Schools [UPDATED]

Detroit News and Michigan Radio report on a 2-1 decision yesterday by the Michigan Court of Appeals that allows the state to reimburse private and parochial schools for the cost of complying with state health and safety mandates that are incidental to teaching and providing educational services. At issue is whether a budget appropriation of $2.5 million to reimburse private schools for the cost of fire drills, health requirements and safety inspections violates the state constitution's ban on use of state funds for private schools. Michigan's Blaine Amendment, inserted in the state constitution in 1970, bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school". (See prior related posting.)

Yesterday's majority opinion from Judges Murphy and Letica ruled:

The Legislature may allocate public funds to reimburse nonpublic schools for actual costs incurred in complying with state health, safety, and welfare laws. But only if the action or performance that must be undertaken in order to comply with a health, safety, or welfare mandate (1) is, at most, merely incidental to teaching and providing educational services to private school students (non-instructional in nature), (2) does not constitute a primary function or element necessary for a nonpublic school to exist, operate, and survive, and (3) does not involve or result in excessive religious entanglement.

Judge Gleicher dissenting wrote in part:

The public money directly and indirectly assists nonpublic schools in keeping their doors open and meeting their payroll, It is unconstitutional for that simple reason.

When the full text of the opinion becomes available online, this post will be updated with links to it.

UPDATE: Here is the majority opinion and the dissent in Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI App., Oct. 16, 2018).