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Why Does Michigan Law Still Discriminate against Religious Schools?

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(Jupiterimages/Getty Images) The Supreme Court killed anti-Catholic ‘Blaine amendments’ nationwide, yet one persists in the Great Lakes State.

Seven months.

That’s how long the Bagos family’s twin sons watched their kindergarten teacher on a computer screen — five days a week, from September to March. When their public school in Royal Oak, Mich., “reopened” in the spring, they still had between one and three days of virtual classes a week. Their parents, Jessie and Ryan, hated it. They knew their boys weren’t really learning. They also know a private Christian school would be a better fit long-term. But Michigan is blocking them from taking that path.

Like many families, Jessie and Ryan can’t easily afford private-school tuition. Help should come from Michigan’s 529 plan, which empowers families to defray the cost of their children’s education through investments that grow tax-free. But while federal law explicitly allows these plans to pay for K–12 private schools, including religious ones, the Michigan constitution says no “tax benefit” can be used to subsidize a private-school education. Since the 529 plan is run by the state, the Bagos family can’t use it to help their sons.

The Bagoses and four other Michigan families are suing the state in federal court, with the help of the Mackinac Center Legal Foundation. If they succeed, they’ll not only enable families to afford religious and private schools, they’ll open the door to a wide variety of school-choice policies that are currently illegal in the Great Lakes State.

Michigan is one of a handful of states left untouched by the Supreme Court’s landmark 2020 decision in Espinoza v. Montana Department of Revenue. In that case, the Supreme Court ruled that states can’t discriminate against religious schools by excluding them from policies that help students attend the school of their choice. Thirty-seven states have so-called “Blaine amendments” designed to do just that. Espinoza rightly recognized that these amendments, which have their roots in 19th-century anti-Catholic bigotry, are unconstitutional.

But Michigan’s Blaine amendment survived the Espinoza decision, thanks to its unique wording. Unlike most other states’ amendments, Michigan’s

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