School-related SCOTUS rulings: minimal impact now, possible consequences later

Jul. 17—TRAVERSE CITY — Amid a slew of historic rulings from the U.S. Supreme Court, the results of two cases may have future implications for Michigan schools.

The two cases — Carson v. Makin and Kennedy v. Bremerton School District — will likely have very minimal immediate impacts on Michigan schools, but the boundaries they establish may have longer term effects on funding and staff in Michigan's public schools.

In Carson v. Makin, the Supreme Court ruled that the state of Maine's exclusion of religious schools from a state tuition assistance program for towns without public high schools violated the first amendment's free exercise clause. It was a 6-3 decision in which the dissent argued that the majority ruling infringed on the establishment clause in the constitution — that there should be a separation between church and state — and forced taxpayers to fund schools that go against their values.

While Michigan does not have a tuition program akin to Maine's, it does have a 1970 amendment to the state constitution that stipulates that no public state money or property shall be allocated to aid or maintain any private schools.

"It's all private schools. It doesn't distinguish between secular private schools and religious private schools," said Brad Banasik, legal relations for the Michigan Association of School Boards (MASB).

While the Michigan constitution does not discriminate against religious schools on its face, that kind of discrimination was likely the intent of it being written into law, said Patrick Wright, Vice President of Legal Affairs at the Mackinac Center for Public Policy.

In 1970, an organization called the Council Against Parochiaid backed the amendment in the Michigan constitution that prevents public aid going to nonpublic schools with the intent of preventing money from going to Catholic schools, Wright said.

"While we have exactly one of those purportedly neutral bans, it was written that way in order to try and make sure to harm all the schools that were essentially just Catholic schools at the time," Wright said.

The Carson ruling may have implications for future challenges to that amendment, which amendment is already being tested in the political field in Michigan.

In 2021, Michigan lawmakers passed legislation that would set up funds for students to use to pay for school materials and tuition and amend the state's Income Tax Act to give tax breaks to those donating to the funds, but Gov. Gretchen Whitmer quickly vetoed it.

Let MI Kids Learn, a campaign in support of the legislation, organized petition drives soon after the governor's vetoes.

Organizations and individuals that support the legislation and these petition drives argue that the legislation would open up more school choice for Michigan families.

Organizations and individuals that are against the legislation, such as MASB, argue that it goes against the Michigan constitution, and it would take away from state revenue and therefore public school funding as well.

The Mackinac Center Legal Foundation is representing five families that are seeking to use these education scholarship accounts to help offset the cost of their children's private school tuition.

"MASB is still of the opinion that that violates our state constitution if those ballot proposals were to be approved, or those petitions were to be approved by the legislature," Banasik said. "And based upon this court case, that opinion doesn't change."

In Kennedy v. Bremerton School District, the Supreme Court sided with a high school football coach from the state of Washington who was fired for holding a prayer circle on the field after games.

The school district argued that allowing the coach's prayer would violate the establishment clause, but the majority of the court opined that the coach's firing was a violation of his rights to free speech and free exercise of religion as he was operating as a private citizen, outside of his role as coach.

As legal counsel for MASB, Banasik said he is advising school districts to assess the scope of employment of their staff members and what could be considered outside of that in the wake of the Kennedy ruling. This case does not come into conflict with any Michigan laws, Banasik said.

"It just provides further clarification to school districts in Michigan, where the line is drawn as far as where districts need to regulate speech of their staff members when it's religious speech," Banasik said.

Some superintendents in the Traverse City region are thinking about Carson v. Makin as having a potential future impact on public school funding, but are wondering more deeply about the Kennedy v. Bremerton School District ruling in the short term.

Suttons Bay Schools Superintendent Casey Petz said he is thinking about the unintended consequences of each ruling. For the Kennedy ruling, Petz said he has been thinking about how this case may have gone differently if the coach were not Christian and how a community would react when, eventually, this ruling applies to others who practice a religion that is outside of the norm of their community.

"Now you've got this established that a prayer, theoretically from any religion or any belief system, could find its way on to a public school property around the public school," Petz said. "So where does that lead you if you have a person who has a particular belief system or religion that's out of sequence with what the general thoughts and opinions are of that community, what are the impacts on that community when those two things don't align?

In reaction to both rulings, Petz said his immediate plan involved just making sure his staff is aware of the new boundaries that have been drawn.

Superintendent of Elk Rapids Schools Julie Brown said she plans to have discussions in the fall with her administrative team, athletic director and the school district's legal counsel to walk through the scope of the Kennedy ruling and how it could possibly impact students and teachers in Elk Rapids.

Brown said she agreed with the court's ruling that the coach was in the right, but her biggest concern is that students may fear being excluded from public school activities because if they do not participate in religious or spiritual rituals, like praying, led by their coaches.

Making sure no kids at Elk Rapids feel coerced in this way is Brown's top priority, she said.

"My concern is not the prayer," Brown said. "It's the fact that we have a captive audience when we are with kids, and our job is to educate kids on a wide broad scope. Our job is not to lead them in one direction or the other politically, religiously or anything else."