Lawsuit seeks to open door to school choice in Michigan

The Mackinac Center Legal Foundation partnered with Bursch Law to file a lawsuit alleging Michigan’s restriction on the use of public funds to pay for private education is unconstitutional.

Five Michigan families and the Parent Advocates for Choice in Education (PACE) Foundation, a nonprofit supporting the rights of Michigan parents to provide educational opportunities for their children, joined the lawsuit after conventional public schools frustrated them after the COVID-19 pandemic. Plaintiff Jessie Bagos’s school only provided virtual school for her young children for much of the last school year. She wanted other options for her twin boys starting kindergarten instead of sitting in front of a screen.

“To have the option to choose schools would be life changing,” Bagos said in a statement. “For everyone, not just us. Hopefully this lawsuit can help with that.”

Section 529 of the Internal Revenue Code allows state-sponsored savings plans to fund higher education expenses. Michigan’s plan is Michigan’s Education Savings Plan (MESP). Bagos funded an MESP and wants to spend that money on their children’s private, religious school tuition.

But Michigan’s Blaine Amendment, passed in 1970, prohibits using public funds for private education. If Bagos spends MESP money on private, religious education, the Blaine Amendment will reverse Michigan’s tax deduction the parents received upon contribution.

The lawsuit cites the U.S. Supreme Court’s 2020 ruling in Espinoza v. Montana Dept. of Revenue, arguing it paved the way for more families to tap programs that fund the choice of K-12 private or public schools.

“[I]t is unconstitutional for a state to use a Blaine Amendment to force religious schools and families attending those schools to ‘divorce’ themselves ‘from any religious control or affiliation’ to ‘be eligible for government aid,’” the lawsuit says.

The lawsuit, filed in the U.S. District Court for the Western District of Michigan, seeks to enable Michigan families to use MESP funds to help pay for private education, including private school tuition. The lawsuit says Michigan’s “restrictive” amendment makes the state an outlier.

“If we can knock down this barrier, the whole playing field changes,” Mackinac Center Director of Education Policy Ben DeGrow said in a statement. “The shutdown and disruption of many public schools since the spring of 2020 shows just how important it is that families across Michigan can have the flexibility of using their education funds to provide their children with the best opportunity to succeed.”