Why Does Michigan Law Still Discriminate against Religious Schools?

 

Seven months.

That’s how long the Bagos family’s twin sons watched their kindergarten teacher on a computer screen — five days a week, from September to March. When their public school in Royal Oak, Mich., “reopened” in the spring, they still had between one and three days of virtual classes a week. Their parents, Jessie and Ryan, hated it. They knew their boys weren’t really learning. They also know a private Christian school would be a better fit long-term. But Michigan is blocking them from taking that path.

Like many families, Jessie and Ryan can’t easily afford private-school tuition. Help should come from Michigan’s 529 plan, which empowers families to defray the cost of their children’s education through investments that grow tax-free. But while federal law explicitly allows these plans to pay for K–12 private schools, including religious ones, the Michigan constitution says no “tax benefit” can be used to subsidize a private-school education. Since the 529 plan is run by the state, the Bagos family can’t use it to help their sons.

The Bagoses and four other Michigan families are suing the state in federal court, with the help of the Mackinac Center Legal Foundation. If they succeed, they’ll not only enable families to afford religious and private schools, they’ll open the door to a wide variety of school-choice policies that are currently illegal in the Great Lakes State.

Michigan is one of a handful of states left untouched by the Supreme Court’s landmark 2020 decision in Espinoza v. Montana Department of Revenue. In that case, the Supreme Court ruled that states can’t discriminate against religious schools by excluding them from policies that help students attend the school of their choice. Thirty-seven states have so-called “Blaine amendments” designed to do just that. Espinoza rightly recognized that these amendments, which have their roots in 19th-century anti-Catholic bigotry, are unconstitutional.

But Michigan’s Blaine amendment survived the Espinoza decision, thanks to its unique wording. Unlike most other states’ amendments, Michigan’s doesn’t explicitly discriminate against religious schools; it is worded to discriminate against all private and independent schools. Yet its intent was no different from that of every other such measure: It was put on the statewide ballot in 1970 by a group called the Council Against Parochiaid — a combination of “parochial,” a clear religious reference, and “aid.” Its backers blanketed the state with anti-religious propaganda, ultimately persuading voters to pass it.

The federal courts should see through the supposedly neutral language of Michigan’s amendment and strike it down. Doing so would ensure that families can use Michigan’s 529 plan to cover the cost of private schools, including religious ones. The state already lets families use those plans to help their children attend a select group of out-of-district public schools that charge tuition. They deserve the freedom to use their 529 plans to pay for any school of their choosing.

The right ruling would have far-reaching effects. In the short term, it would entirely benefit those who have 529 plans, which are as of now the only financial support available to Michigan families who want to send their kids to private schools. But in the long run, it would allow Michigan lawmakers to enact a whole host of school-choice policies to give parents more options.

Michigan’s Blaine amendment effectively prevents tax-credit scholarships, vouchers, education-savings accounts and other popular school-choice policies used in other states. All of Michigan’s neighbors — including Ohio, Indiana, and Wisconsin — have enacted such policies, in one form or another. Families in those states have greater freedom when it comes to educating their children. By extending that freedom to Michigan families, lawmakers can give them one more reason to stay and build their lives here — an added benefit for a state where population loss has been a concern in the recent past. But before that can happen, the courts must act.

The Bagos family is desperate for better options. So are the other four families suing Michigan, and countless others across the state. Some are tired of virtual learning. Others are concerned about public-school curricula. Still more simply know their children can get a better education at a different school. Whatever the reason, Michigan’s Blaine amendment is stifling them. If the courts strike the law down, it will not only deliver a win for religious freedom — it will give the state’s parents the school choice they so badly need.