There’s an interesting case going on in Michigan that challenges a state law that forbids giving tax dollars to private schools. A state court issued a preliminary injunction forbidding a $2.5 million payment to private schools and the state motioned to lift the injunction based on the Trinity Lutheran decision. The judge said no.
The Trinity Lutheran decision is the case from Missouri where the Supreme Court ruled that if the state offers a generally applicable benefit to schools with a secular purpose — in that case, resurfacing playgrounds with rubber to make them safer for children — they can’t refuse to provide such grants for religious schools only. But in Michigan, the state constitution does not forbid aid to religious schools, it forbids aid to all non-public schools. That makes it a generally applicable law without any religious discrimination involved.
Court of Claims Judge Cynthia Stephens on July 6 had issued a preliminary injunction, but asked lawyers on both sides to submit briefs to address a crucial question: Should a U.S. Supreme Court ruling that found that a Missouri church should be eligible to compete in a state grant program for playground resurfacing apply in the Michigan case?
Some have argued that it should. But Stephens, in a ruling issued Tuesday, said:“At this preliminary stage of the present case, this court is disinclined to extend the Trinity Lutheran decision to a case that plainly does not involve express discrimination.”
At issue in the Michigan case is $2.5 million in public funding that the Legislature last year allocated to nonpublic schools to help them cover the cost of complying with state mandates. The Legislature allocated an additional $2.5 million this year.
A bit more context to the decision from the ruling itself:
… the Court concludes at this juncture that the constitutional provision at issue in this case, Article 8, § 2 of the Michigan Constitution, can be understood as falling within the category of neutral and generally applicable laws, rather than n provision that singles out the religious for disfavored treatment…. [T]his Court is disinclined to extend the Trinity Lutheran decision to a case that plainly does not involve express discrimination.
This is an important distinction. The reason the Supreme Court ruled the way it did is because a law that explicitly singles out religious schools can be viewed as discrimination against religion. But the Michigan law applies to all private schools, whether religious or secular, so that problem is not at issue here. I’m sure the state will appeal the decision.