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In a split 3-3 decision issued yesterday, the Michigan Supreme Court upheld the constitutionality of a 2016 law reimbursing nonpublic schools for complying with state mandates. Agudath Israel had filed an amicus curiae (“Friend of the Court”) brief in this case and had previously joined a brief together with other organizations in 2016 when the Michigan Supreme Court was asked for an advisory opinion, but declined.


The Agudath Israel brief argued that the provision in the Michigan state constitution that prohibits state aid to nonpublic schools was adopted primarily due to anti-Catholic bigotry, and should be struck down. It also stated that nonpublic school reimbursements for mandated services are constitutional and that denying such benefits to religious schools would be a violation of the Free Exercise Clause of the US Constitution.


The three judges affirming the Court of Appeals ruling did not rule on the constitutionality of the state’s constitutional amendment that bars aid to religious schools, but noted recent developments “may conceivably warrant consideration in a future case addressing the constitutionality of that amendment.” They also referenced three recent United States Supreme Court cases including last month’s Roman Catholic Diocese of Brooklyn v Cuomo, in which Agudath Israel of America was a plaintiff.


The Michigan Legislature appropriated more than $5 million for the reimbursement program between 2016 to 2018, but the funding was held back by a court injunction pending a ruling. The court decision affirmed that Michigan nonpublic schools may receive reimbursements for mandates involving health and safety measures even when those funds are paid directly to the nonpublic school. The split decision means that the favorable Court of Appeals ruling stands and the case returns to the Court of Claims to decide if the Department of Education properly limited the program to non-educational services.


“The overdue Supreme Court decision is great news for nonpublic schools in Michigan and the families they serve,” said Rabbi A. D. Motzen, Agudath Israel’s national director of state relations. “We hope this ruling is the first step to eventually overturning Michigan’s ban on nonpublic school aid.”


The multi-year effort for nonpublic school reimbursement was led by the Michigan Catholic Conference and the Michigan Association of Non-Public Schools, who were joined by Agudath Israel of America and others. The nation’s first mandated services program was established by the New York State Legislature in 1974, thanks to the pioneering efforts of Rabbi Moshe Sherer of Agudath Israel of America and other nonpublic school advocates.