Two decades ago, supporters of education choice tried to lift desperate students out of failing schools by dismantling a constitutional barrier to opportunity. Michigan voters dashed their hopes. But the obstacle looks more vulnerable than it ever has, thanks to the lingering challenges associated with COVID schooling.
The pandemic disrupted school routines, caused many students to drop even further behind in their learning and left many parents steeped in frustration. Children with disabilities or from disadvantaged communities suffered the most. Many families, but theirs especially, felt the need for choices and alternatives.
COVID revealed the shortcomings of a rigid, bureaucratic K-12 education system. Many families had exercised one of the most basic and overlooked forms of choice, taking on a new mortgage in a desirable district. What they found, however, were officials who disregarded their children’s academic or emotional needs, or disrespected their values.
One school year marred by disruptions was followed by a second, leading to further dissatisfaction. In 18 states, lawmakers responded by introducing or expanding programs that fund students rather than systems. They entrusted an increasing number of parents with more power to make important educational decisions. The move toward education freedom is not only a popular strategy, but it’s also proved to be effective in states that were early adopters.
Two of Michigan’s neighbors, Ohio and Indiana, expanded the options families have. Even more notably, West Virginia went from having almost zero school choice to approving state-funded flexible education spending accounts for families of nearly all students.
What advantage did those states (and others) have that helped them seize the moment? Having political leaders sympathetic to education choice was an important factor. In Michigan, though, Gov. Gretchen Whitmer has used her veto pen, proving herself loyal to interest groups more invested in protecting district and employee turf than in giving families new options.
Yet even more crucial in separating Michigan from other states was a legal breakthrough from 2020. In the height of the pandemic, the U.S. Supreme Court struck down laws in more than 30 states that opponents of education choice have used to block new programs from taking effect. The 5-4 majority ruled in Espinoza v. Montana that these 19th-century Blaine amendments, rooted in anti-Catholic bigotry, could not deny families their right to use state scholarship programs for religious education.
Michigan’s “anti-parochiaid” amendment is more recent, passed by state voters in 1970 to prevent taxpayer funds from supporting private religious schools. One of the few anti-aid laws left after the Espinoza decision, it has been an especially painful thorn in the side of parents desperately seeking safe, stable in-person learning options for their children.
The Mackinac Center has joined a number of aggrieved parents to file a federal suit that strikes at the heart of our state’s restrictive constitutional amendment. Our Legal Foundation, working with Bursch Law, makes a strong case that the 1970 provision was born out of anti-Catholic bigotry.
As the complaint shows, the amendment continues to discriminate. A 2017 change in federal law allows 529 college savings plans to pay for K-12 tuition. But in this state, families face a state tax penalty if they use their Michigan 529 plan at a private religious school. The penalty doesn’t apply, however, if they send the same funds to one of a handful of exclusive public school districts that charge tuition to nonresidents.
The process of resolving a federal constitutional court case takes time. In the meantime, many students and families need relief. The Legislature stepped in recently to create Student Opportunity Scholarships. The large pool of state tax credits would benefit private donations to K-12 scholarships that primarily benefit low- and middle-income families, who could use the funds on tuition, tutoring, online curriculum, special-needs therapies and skilled trades programs. Thousands of students in both public and private schools could benefit.
Unfortunately, Gov. Whitmer took the predictable path and nixed the student aid program that passed both the House and Senate. While parents may be disappointed, their hopes are not dashed. A group has formed to turn the issue into citizen-initiated legislation, keeping the issue alive into 2022.
