Back in 2017 I wrote a post, which I encourage you to go and read now as background, on the emergence of what is in effect a state money voucher system for home schoolers in Michigan.
Here's just a very short version, but please do read the older post: Over the years, home schoolers in Michigan have built up a number of co-op organizations that look somewhat like part-time Christian schools. They meet in their own venue, usually one day a week, and provide classes that home schoolers purchase on an a la carte basis, run by qualified tutors. This has greatly expanded the flexibility of home schooling options. Several years ago the Michigan public school districts began offering both classes held at the public schools that home schoolers could take and also (here's the rub) tuition reimbursement for classes taken with these other organizations.
The legal problem is that Michigan has an extremely explicit provision in its state Constitution forbidding vouchers and financial aid, direct or indirect, of any kind to religious parochial schools. (I will quote this provision below.)
In 2017 there was the inevitable crackdown on the Christian nature of the organizations receiving these funds, and one organization (which I did not name and will continue not to name) caved in and forbade its teachers to lead prayers, etc. It was at that time that I reported on the situation.
I have delayed posting an update for two years even though I knew that more had happened, because I didn't want to "tell on" the organization when (as I heard) it returned to allowing its teachers to pray in class. But I have now decided that more of a warning is needed in light of two things: 1) In a recent case, a public school district has been ordered to return a huge sum of money to the state of Michigan that it had received for home schooling "partnerships," and if something like that happens elsewhere, the demand could "roll downhill" and bankrupt the Christian home schooling co-ops taking public monies. 2) The HSLDA (Home School Legal Defense Association), rather disappointingly, is apparently passively refusing to address clearly the specific situation of home schooling co-ops receiving vouchers, preferring to warn indirectly and with a wink and a nod. This is especially unfortunate since a 2017 article by an HSLDA lawyer is being misconstrued as saying definitely that the receipt of these public funds by home schooling Christian co-op organizations is perfectly legal, when in fact his article did not address that issue. Requests for public, explicit clarification have thus far gone unanswered.
So, here's an update. I admit that I have this information from sources that I cannot name, and I will continue not to name the co-op involved or to state what its particular educational focus is. It would, however, be easy enough for a motivated person to figure out the name of the organization.
The organization I described in 2017 subsequently reversed its cave-in to the public school district's demands for religious neutrality. In fact, my impression is that it did so within a couple of months. The organization, in response partly to understandable parental distress, went back to allowing its teachers and leadership to pray and lead prayers in class, to lead Bible studies during its summer activities, and so forth. In other words, to use legal terminology, it regained its "pervasively sectarian atmosphere," which it had tried momentarily to set aside after the public school regulators told it to do so. It had been told by local regulators that it had to neutralize itself religiously because parents were being reimbursed for tuition using public school funds, but it stopped abiding by this instruction.
I am told that the reasoning behind this reversal was that the organization's leadership looked at the rules in question and said that these applied only to public school teachers but (aha!) that they are not a public school, so the rules on no teacher prayers and religious activities didn't apply to them.
As a piece of legal reasoning this is entirely confused. Of course they are not a public school. In fact, I strongly suspect that any court in the state would consider them to be a Christian parochial school, albeit one that does not meet five days a week. That's why they are not allowed to receive public school funds under the Michigan State Constitution. Let me quote the relevant clause of the MI Constitution:
No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students.
Surely that is clear enough. Vouchers to religious educational organizations are forbidden under the Michigan Constitution. No public money may go directly or indirectly to pay for tuition at such institutions. That is why the local public school district, under pressure from Lansing, cracked down in 2017 and told the Christian organization that it must secularize itself to continue to receive public school funds.
By returning to its full Christian identity (which I heartily approve of in itself) while continuing to accept the funds (which I want to warn against), the organization has put itself into an extremely tenuous and indeed untenable legal position. Especially since, after 2017, they cannot claim that they were not warned or that they knew nothing about any potential problem.
Fast-forward to 2019. Just recently word came through that the Traverse City Public School district must return over $700,000 and may end up having to return over 1.2 million dollars (!) to the State of Michigan for miscounting (in the opinion of the Department of Education) home schoolers enrolled in its "home school partnership" programs. At issue is the question of whether home schoolers enrolled in a partnership are to be counted as .15 of a student or .75 of a student. The Traverse City district had done the latter; the Department of Education says they should have done the former.
It is unclear from the story whether any of the home schooling parents in Traverse City were receiving reimbursement for tuition for classes at off-site religious institutions. The story does not address the issue, since religion was not involved in the demand for the school district to return the funds to the state. For all the story says, they may have been receiving tuition reimbursement for private tutoring, for classes offered by secular teachers, or the children may have been attending part-time classes held on-site at the public schools.
But the Traverse City school district is in quite a financial pickle and has to find that money from somewhere to return to the state, if only gradually. If there were some other organization to which the money was funneled, it is not impossible that Traverse City would attempt to get the money back from them, or that another school district will do so in the future if something similar were to happen elsewhere.
Here in my own area, it appears that the Gull Lake Public School district is counting part-time home schooling students as .75, which could very well put Gull Lake in the same position that Traverse City ended up in. And Gull Lake is funneling money to a separate home schooling organization--the very one that I have been writing about here.
Now, this is exactly the sort of thing where the Home School Legal Defense Association should be (and sorta kinda has been) sounding the alarm. HSLDA has always been opposed to home schoolers' receipt of any public school funds. Back in 2017, HSLDA lawyer Mike Donnelly wrote this somewhat negative but also somewhat unfortunate article. It stated that "the partnerships" (which it didn't explain in full detail) have not been tested in court and warned about the possibility that, if they were tested in court, things could go against them. Unfortunately, though, the article also stated that "these public school–homeschool partnerships do not appear to violate Michigan’s Blaine amendment as interpreted by the Michigan Department of Education." This has apparently been taken by those in the organization I described to mean that Donnelly's opinion is that the partnerships as they are being carried out, including the vouchers to their organization, do not violate the MI Constitution despite its anti-voucher provision.
But that would be an inaccurate characterization of what Donnelly said. Donnelly wrote about the Snyder case, which put some limits on the application of the fierce anti-voucher clause in the MI Constitution. But the Snyder case, as Donnelly accurately quoted, held that
"the statutory right to public education is not conditioned on full-time attendance,” and that “allowing . . . non-public school students to participate in public school classes will not place an unreasonable burden on the public school system."
In other words, the Snyder qualifications concerned Christian school (and now presumably homeschool) students participating in public school classes part-time, not reimbursement paying for off-site classes taken from a Christian educational organization. These are two very different things. Donnelly simply does not address the latter, and thus far (I had some interaction with him on the Michigan Home Schooling Network) is apparently declining to address it explicitly and publicly, apparently on the grounds that HSLDA does not "advise organizations."
Donnelly did write an article about the recent audit of the Traverse City school district. That article concluded:
HSLDA and Michigan Christian Homeschool Network (MiCHN) have always encouraged families to avoid government funding as part of their homeschooling program. Government funding inevitably brings government control through regulation. The unique character of home education provides parents greater liberty for directing their children’s education.
That certainly looks like a warning, and it's a good one as far as it goes, but once again, it does not explicitly correct any misimpression that someone might have received from his 2017 article about the legal situation.
Now here's one more interesting thing: Donnelly did say, in the very next sentence:
Read MiCHN’s position paper on public school partnerships.
Here is that position paper by a Michigan home schooling organization opposed to the partnerships. That paper does say, "Public school partnerships appear to be a violation of our state constitution and therefore a misappropriation of state funds." Was Donnelly meaning to endorse (indirectly) that statement by encouraging readers to read the MiCHN position paper? Then why not say so openly, especially given the possibility for misunderstanding generated by the 2017 article?
The current Michigan Department of Education guidelines do envisage a possibility that the district might pay for off-site classes as long as these are educationally non-essential, but as we shall see, the Snyder ruling (which the MDE guidelines mention) made it absolutely explicit that anything off-site from the public school must take place in a religiously neutral venue.
In our brief exchange, Donnelly asked me (cryptically) if I have read the Snyder opinion. At that moment I had not, but I have since looked it up. As suspected, that case concerned a Christian school student taking some part-time classes at a public school. The Snyder ruling emphasizes this fact as one reason why the case in question does not violate the "no parochiaid" clause of the MI Constitution:
"First, under parochiaid the public funds are paid to a private agency whereas under shared time they are paid to a public agency....Obviously, a shared time program offered on the premises of the public school is under the complete control of the public school district..."
The court majority appears to accept this reasoning, though here it is quoting from someone else's statement. But this reasoning does not apply to the partnership programs where money is funneled through reimbursement to parents for tuition at Christian organizations.
Similarly, the court appears to accept the reasoning that
parochiaid permitted the private school to choose and to control a lay teacher whereas under shared time the public school district chooses and controls the teacher.
Once again, this reasoning does not apply to the use of partnership funds to pay for off-site classes taught by tutors or teachers hired by the Christian organization where the classes are held. In fact, in that case it is just the opposite: The Christian organization decides which tutors or teachers to hire to provide the classes.
The Snyder court does accept a previous court's reasoning concerning some off-site instruction, though that was not relevant to the Snyder case itself, and it responds to concerns about entanglement with religion. Here's how that reasoning went:
[T]he Court emphasized that this danger arose from the fact that the services were performed in the pervasively sectarian atmosphere of the church-related school. The danger existed there, not because the public employee was likely deliberately to subvert his task to the service of religion, but rather because the pressures of the environment might alter his behavior from its normal course. So long as these types of services are offered at truly religiously neutral locations, the danger perceived in Meek does not arise.
And,
The influence on a therapist's behavior that is exerted by the fact that he serves a sectarian pupil is qualitatively different from the influence of the pervasive atmosphere of a religious institution. The dangers perceived in Meek arose from the nature of the institution, not from the nature of the pupils.Accordingly, we hold that providing therapeutic and remedial services at a neutral site off the premises of the nonpublic schools will not have the impermissible effect of advancing religion.
In other words, the Snyder court assumes that any classes offered and funded by the state that are not on the public-school site, that would be allowable under the Michigan Constitution, must be religiously equivalent to public school classes, because otherwise they would be unconstitutional under the MI constitution. But if they are religiously equivalent to public school classes, then they must be religiously neutral and cannot even be offered in the "pervasively sectarian atmosphere" of a Christian institution. All the more so the court would not allow them to be offered with a religious purpose integrated into the class itself, such as to glorify God with our music, to pray for each other, and so forth, while being publicly funded. Because that would be in blatant violation of the Michigan Constitution.
So at every point, the Snyder decision makes it clear that the current use of public school funds to pay tuition for classes at avowedly Christian educational organizations is contrary to the Michigan Constitution.
I strongly urge those who are right now or are considering being involved in these sorts of partnership arrangements to face the following very real possibility: Your homeschool organization will likely be targeted for another crackdown such as occurred in 2017. At that point, given what happened in 2017, that same organization will probably cave in again, and your organization will lose its Christian characteristics in its classes. And as I pointed out in the old post, the regulatory implications are huge, because the organization could, for consistency, end up losing its ability to "discriminate" in hiring teachers on the basis of its moral standards and religious requirements. A Christian organization is not supposed to be receiving these funds, so your organization will be faced with turning itself into a secular organization or losing the funds. The organization your student attends does not have a legal leg to stand on in this area as long as it accepts these funds. And if the leadership has been basing its hope upon the 2017 article by Mike Donnelly, it is almost certainly basing it on a misinterpretation of that article. HSLDA is giving hints that the partnerships as your organization is carrying them out are legally dangerous, though for some reason it refuses to say openly that they are in violation of the MI Constitution (though linking to a MiCHN article that does say so). Moreover, HSLDA won't defend your organization in court, because it neither advises nor represents organizations anyway, and also because this would be a sure loser of a case, so your organization will be legally on its own when another crackdown comes.
And it could get worse still, financially speaking: What if your organization, having been warned in 2017, were ordered to repay all the funds it received since then? It could be bankrupted.
Your organization needs to get off of the public funds. It needs to get to the point where it can do without them financially, and it needs to recognize the danger now, before it is too late. Please direct your leadership to this article and warn them.
Comments (11)
Very valuable insight Lydia, thank you. When the secular-minded state gets involved with its money, control is not far behind. Secularism is a totalizing philosophy, and it cannot accept sharing control with others. Those who get in bed with fleas should expect to wake up with pigs...or something like that :-).
I want to take the issue a few steps further than that, however. I would point out, first, that the actual language of the MI Constitution is NOT PRIMARILY opposed to sectarian schooling, it is primarily opposed to non-public schooling.
To me, the phrasing indicates that "private" and "denominational" are clarifiers to the term "nonpublic". Note, again, that the ACTUAL LANGUAGE of the provision reinforces the powers of the secular state at the expense of all others. A completely a-religious, even completely SECULAR nonpublic school would be forbidden to get state money. That's the state demanding complete control of education as the basic starting point, with later laws allowing exceptions to the basic rule.
This is topsy-turvy. Subsidiarity directs that authority and powers ought to subsist at lower orders of community if the goals can be met that way: private and denominational schools constantly prove that they can be met that way just fine, if not better. Subsidiarity also directs that smaller communities are not to be considered to subsist merely as "subdivisions" of the state. They are proper entities in their own right, and very often they existed prior to the state itself anyway. For the state to view them as deriving their powers and authority - and existence - from it is to run roughshod over them right from the get-go.
This applies most especially to families, which by nature are logically and materially prior to the state (in the sense that families are the smallest organs of society). Families do not derive their root powers and authority from the state, and the right to educate their children is a core component of that authority. But "the right to educate their children" consists, even more than other aspects, in deciding how their children shall be educated, even when they delegate some of the day-to-day activities to some others. (It is inherently impossible for a family to delegate ALL of its educative role to others, as merely setting a good example is educative, as is teaching humble obedience to the discipline of learning.)
Because of this family role, the state's ridiculously overbearing mandate for public schooling (according to a highly determinate plan of educating) is especially odious, and should always be considered an outrageous tyranny to be opposed whenever possible. A state should never be allowed to claim that education belongs primarily to it, and only to others by its consent.
I would also note that the MI constitutional Blaine provision is, per se, also in direct contradiction to the Constitution's own stated underlying principle. As cited by the MI Supreme Court in Snyder:
Please note the Court managed to highlight the importance of "encouraging education" while also passing silently over the idea of "encouraging religion", even though religion is mentioned first and education third. After some 100 years now of gradually constricting secular control over all education, we are now clearly - undebatably - both less religious and less moral than before. Arguably, then, the stated principle should beg for Michigan to re-think the Blaine provision. Indeed, properly speaking, all education in the state (and everywhere) should be religious, because this is what is good for morals and for society. The Catholic Church has taught so for a long, long time. Pius XI, Representanti in Terra #57:
Christ said "everyone, when he has been fully trained, will be like his teacher." (Luke 6:40) The secularists know this either explicitly or implicitly, and operate on its basis. Why do Christians put their kids in anti-Christian schools?
In addition to objecting to the state setting up secular schools, paid for by mandatory taxes, the Catholic Church has long been very explicit that doing so without giving some kind of relief to parents who pay religious school tuition is directly contrary to strict justice. That is to say, states which force religious parents to suffer the double-cost of regular taxes PLUS the (higher) cost of private tuition (proportionately higher because it is not spread out among those who have no children to educate) are persecuting religious belief itself, though through a proxy. I note that doing so directly contravenes the stated principle of religion, and amounts to nothing less than schizophrenia in the Constitution.
While it might look like I am advocating just the opposite of what Lydia was saying, this is not true. Given the current condition of secularism in control of the state education apparatus, it is foolhardy to give the secular bureaucrats the kind of control over religious schools implied by cost-sharing that allows the state to direct those schools in any way. This applies to homeschool-related co-ops of whatever sort. But ultimately the solution is not merely to keep the secularists out of religious schooling, but to get them out of education altogether. Education is too important to let it be run by those who don't believe in God, original sin, the afterlife, and fundamental Christian morality. In any case, the proper role of the STATE is to support the lower communities, and when their own efforts are insufficient (due to some persistent lack in them), especially by repairing that lack so that the lower community can once again take on its proper role and succeed on its own. That state role does not imply state-level control on schools, at all, and would not imply state-paid education generally (though might allow for it in limited unusual circumstances, for a time). But not with state control, which is contrary to subsidiarity.
Bonus Feature: Both the majority opinion and the dissenting opinion in Snyder miss a critical point, because they fail to understand the implications of the family being prior to the state and having its own proper educative role which the higher orders of society have an obligation to ASSIST but not ABSORB. Any state program (statutory or constitutional) which erects an excessive burden on families to properly educate their children in religious formation is contrary to due public order. Therefore, while the dissenting Judge Brickley correctly finds no support in the statute for requiring the local Board of Education to provide a shared time program ,under the due deference standard, that's the wrong standard to be applied. It should be a higher standard, very likely strict scrutiny, because it burdens religious belief and practice in a very broad way. The Blaine provision is itself odious to religious sensibilities, but as long as it is in the state's Constitution, the state authorities who have the true welfare of the people at heart should be interpreting it to do the least damage possible. This implies (at a minimum) that where state-run schools can relieve the burden of parents regarding non-sectarian classes, they should do so and be allowed to do so without unnecessary constraints that effectively bar the religious family from using the aid. Thus the damage to justice that the Blaine provision constitutes would be mitigated a small amount. Given that this provision is contrary to strict justice, there is a strict obligation on state authorities to ameliorate it when they can.
Posted by Tony | September 10, 2019 10:05 PM
I was musing tonight after writing this post on the whole issue of non-public schools that are also non-religious.
I think the only way one could disagree with my legal analysis is if one argued that the co-ops I'm talking about are not *schools* at all.
(It would be rather surprising if the HSDLA took that position, though. In California they argue, because it's the best way to support homeschooling freedom in CA, that a mother teaching her own children in her home is operating a private school! It would be ironic if they thought that in Michigan, an organization that hires multiple teachers, offers multiple classes, operates outside the home, and teaches many students from many different families is *not* a school! Somehow I doubt they will take that position. If it is what Mr. Donnelly privately thinks, which I doubt, I doubt even more that he would want to be saddled with trying to convince a court of the proposition!)
If they are deemed legally to be schools, then even if they secularized themselves, unless they became *public* schools, they would still be in violation of the anti-voucher amendment.
That is an interesting point, and I think it's probably accurate as far as the intention of those who wrote the amendment originally.
At that time, charter schools did not exist. Charter schools *are* public schools, but they use different teacher accreditation programs and in various other ways are somewhat more independent in their self-governance than ordinary public schools.
I have to wonder just how far the Gull Lake district was intending to move the co-ops in the direction of turning them into full public schools (perhaps somewhat like charter schools), and how far they will try to do so in the future if there is another crackdown.
Posted by Lydia Mcgrew | September 10, 2019 10:19 PM
Though I do have to add that there is *some* question about the intention of those who drafted the amendment given that the term "parochiaid" was coined as a description of what they were against. "Parochial" schools are generally defined as religious schools. So...did they just intend to block payments to religious private schools or all private schools?
Posted by Lydia Mcgrew | September 10, 2019 10:54 PM
Yeah, I agree about the "parochiaid" tag, but I gotta say that because only the Catholic Church had a vast array of "parishes" (called that) that typically had parish schools, the Blaine amendments tended to arise due more to a specifically anti-Catholic animus than a broader anti-religious animus: some people didn't really mind as much a school run by Quakers. My suspicion is that the underlying current of anti-Catholicism was the driving engine that enabled the amendment to pass, even though in actual fact the authors wrote it to be "neutral" about which religion gets hammered (as long as you don't notice that secular humanism is just as much a belief system ("faith") as is Christianity - with not as much evidence for it). Ultimately I suspect that they wanted to block payments to all private schools not just religious ones, but (a) they would not have gotten sufficient support without the historical anti-Catholic bigotry present, and (b) there were also a significant minority who positively wanted to block all religious schooling, and were savvy enough to couch it not in explicitly religious terms, but didn't actually care much about non-religious private schools, with (c) a smaller minority of sophisticatedly secular statists who really oppose private schooling as such - and were happy to enable the others along in their bigotry against religion. I guess it was a win-win for them all.
Posted by Tony | September 11, 2019 10:55 PM
Tony said:
Historically, in Michigan, the hostility was directed at both Roman Catholic schools and the Christian Reformed Church's network of technically non-parochial schools; schools which are parental, not church, governed and controlled.
In Michigan the anti-parochial school bias took some ridiculous forms. In the early to mid 1960s students who attended parochial schools were no longer permitted to ride rural school busses into town, and then walk from the public school to their Catholic or Christian school.
Posted by Thomas Yeutter | September 12, 2019 11:22 AM
Thank you, Thomas, for the added historical details. I find it amazing that these Blaine-esque changes to law and regulatory provisions came along late as the 1960s: the original Blaine proposed amendment was in 1874, and most state constitutional provisions were enacted in the next 30 years. By 1960, what with Bing Crosby, Boys Town, and , along with Karl Maulden in On the Waterfront, and even The Quiet Man and A Man for All Seasons (though that came in 1966), plus Bishop Fulton Sheen having one of the most successful talk shows in the 1950s, the GENERAL anti-Catholic tenor of earlier America was no longer clearly in evidence. Catholics were accepted (mostly) and were not considered (again, mostly) to constitute any special sort of danger to good ol' apple pie America. Is Michigan a kind of hold-out region for the sentiment?
Posted by Tony | September 12, 2019 10:41 PM
Off-topic: Another abortionist monstrosity discovered: https://www.breitbart.com/crime/2019/09/13/2246-unborn-children-found-in-abortionists-home/
Posted by Scott W. | September 14, 2019 5:28 AM
Tony, it looks like it was the Dutch reformed who really made the secularists rabid in Michigan in the 60s!
Posted by Lydia Mcgrew | September 14, 2019 9:26 AM
Huge numbers of European immigrants came to North America in the ten years that followed World War II. Large numbers of religiously conservative Netherlanders, especially Groningeners, came to West Michigan. and southern Ontario. The number of Christian schools related to the Christian Reformed Church expanded to accommodate these immigrants.
Posted by Thomas Yeutter | September 14, 2019 8:34 PM
Thanks, Thomas, I had no clue about those details. Was there some movement, or at least some thinking at the time, that maybe Michigan would start using public money to assist those schools? Or were the Blainers just working on fear?
Posted by Tony | September 15, 2019 8:12 PM
This provides some background on the issue:
www.mackinac.org/2041
A number of supporters of the Christian Reformed Church network of Christian Schools objected to the Parochiaid bill that was passed. They complained that this bill only benefited Roman Catholic and Lutheran Schools and not their schools. They demanded that they be subsidized too.
Specifically these Reformed men complained that the Roman Catholics [and to a lesser extent the Lutherans] held to a radical disjunction between nature and grace. They objected to this distinction and said that all of life was religious. The Reformed argued that math could not be understood as a secular subject. The numerical aspect of the universe was part of God's created order. Numbers should be seen as God's servants.
Many of these Reformed men were followers of Herman Dooyeweerd and Dirk Vollenhoven.
Some Reformed men in West Michigan advocated a much more radical voucher plan to fund all elementary, and secondary education in Michigan.
Local papers began publishing editorials condemning any parochiaid.
Some Detroit area black Democrats accused the Reformed of advocating apartheid, and wanting to establish segregation academies under the guise of establishing parental controlled Christian Schools.
The tenor of the debate turned ugly. Many Republicans, who might have been sympathetic to parochiaid, stayed home and did not vote. Lenore Romney had narrowly defeated Bob Huber for the GOP Senatorial nomination. This caused a serious rift in the Michigan GOP. As a result of all of these factors, parochiaid was soundly defeated in the November 1970 election.
Posted by Thomas Yeutter | September 15, 2019 8:53 PM