The delicate balance between church and state has been debated and litigated across the country for four decades.47 While it is settled law that the government may not directly support religious instruction, it is also well established that government is free to adopt policies that indirectly aid religious institutions, particularly through some form of tax preference.48 The debate over taxpayer financing of private schools in Michigan reached a peak in 1970, with the passage of a new amendment to the constitution banning even indirect aid to private schools.
The debate began more than 30 years ago, when many Michigan parents who paid the expenses of their children at private schools and also bore the cost of government schools through taxes urged the legislature to allow for taxpayer-funded support for private schools. The increasing costs to families of funding both the government school system and the private schools that educated their children created significant support for partial taxpayer funding of private education.
The legislature responded by passing Public Act 100 of 1970, the school aid bill for the year, which provided direct financial support to eligible private schools. This aid could be used only for instruction in nonreligious subjects.49 Michigan's law was similar in concept to laws passed in a handful of other states, including Pennsylvania and Rhode Island.50
The Michigan Supreme Court quickly upheld PA 100, ruling in an advisory opinion that "the Constitution of the State of Michigan [does] not prohibit the purchase with public funds of secular educational services from a private school."51
But the debate did not end there. The Court's action in upholding PA 100 soon prompted the creation of a campaign to amend the 1963 constitution to expressly prohibit state funds from being used to support education at private schools. A ballot committee, the "Council Against Parochiaid," hastily organized a petition drive to place the issue on the statewide ballot. During the petition drive, the term "parochiaid" was used to advance concerns that tax dollars might go toward specific religious institutions, not private schools in general.
The group's petitions were initially thrown out after a finding by the attorney generaland later the board of canvassersthat they did not let signers know whether the amendment would abrogate the education section of the constitution. But a split panel of the Court of Appeals, and then a 5-2 majority in the Michigan Supreme Court, allowed the issue to proceed onto the ballot. 52
The ballot campaign itself was confused and bitter, with the effect of the proposal unclear to the voters as well as to public officials.53 However, the new amendment (Proposal C on the November 1970 ballot), was approved by a margin of 338,098 votes: 1,416,838 to 1,078,740. Language added to Article VIII, Section 2, of the state constitution provided the following:
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 private, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such private school or at any location or institution where instruction is offered in whole or in part to such private school students.54