Constitutionality of MCL 388.1752b (reimbursement of nonpublic schools for costs of complying with state health, safety, & welfare mandates); Const 1963, art 8, § 2 (as amended by Proposal C); Advisory Opinion re Constitutionality of 1970 PA 100; Traverse City Sch Dist v Attorney Gen; In re Advisory Opinion re Constitutionality of 1974 PA 242

Holding “that MCL 388.1752b does not violate Const 1963, art 8, § 2, as amended by Proposal C, because it does not appropriate funds for nonpublic-school educational services[,]” an evenly divided court affirmed the Court of Appeals judgment that the statute is constitutional, and remanded the case to the Court of Claims. The justices voting for affirmance concluded that the statute, which provides for reimbursement of nonpublic schools for costs of complying with state health, safety, and welfare mandates, was “in accordance with both the religion clauses of the First Amendment of our federal Constitution and Article 8, § 2, as amended by Proposal C in 1970, of” the Michigan Constitution. They found that reimbursement for such mandates was “permissible under Traverse City, which stated that public funds may constitutionally be appropriated to ‘provide for [nonpublic-school students’] physical health and safety,’ so long as such appropriations ‘only incidentally involve the operation of educating private school children’ and do not create an ‘excessive entanglement between church and state.’” They determined that nothing in the statute suggested “that public funds are to be appropriated for nonpublic-school educational services; rather, MCL 388.1752b(1) provides that public funds are to be appropriated only for ‘police power’ public services to which all educational institutions and all students are generally entitled.” Although they recognized that “Traverse City concerned the provision of health, safety, and welfare ‘services,’” while this case concerned providing “public funds directly to nonpublic schools for compliance with state health, safety, and welfare mandates[,]” they found there was “no principled difference in this regard because the auxiliary services permitted by Traverse City are substantively indistinguishable from the reimbursements permitted by MCL 388.1752b.”

The justices voting for reversal concluded that MCL 388.1752b clearly violates article 8, § 2 of the Michigan Constitution, and that operation of this constitutional provision to prohibit funding of nonpublic schools through the statute did not raise federal constitutional concerns. Thus, they would “reverse the Court of Appeals, declare MCL 388.1752b unconstitutional, and prohibit funding under the statute.” They determined that the statute “appropriates general-fund monies for the specific purpose of providing that money directly to nonpublic schools, and only to nonpublic schools, to compensate those schools for costs incurred in adhering to this state’s general health, safety, and welfare laws. For a nonpublic school, or any other organization in Michigan, complying with general health, safety, and welfare laws is just a cost of doing business.” Further, they found that the payments called for by the statute “effectively function as payroll payments because the law reimburses nonpublic schools for the labor costs (based on the hours worked and the wage rate) of employing a person to ‘perform[] a task or tasks required to comply with a health, safety, or welfare requirement under a law or administrative rule of this state . . . .’” Determining that the justices voting for affirmance misapplied Traverse City, the justices voting for reversal concluded that “the aid provided to nonpublic schools by MCL 388.1752b is of a ‘direct’ nature. The legislation appropriates public monies for one specific purpose: to pay that money directly to nonpublic schools. None of this Court’s precedents permits such a result.”