The delicate balance between church and state has been debated and litigated across the country for four decades.51 While it is settled law that the government may not directly support religious instruction, it is also well established that the state can adopt policies which indirectly aid religious institutions, particularly through some form of tax preference.52 The debate over taxpayer financing and private schools in Michigan reached a high point in 1970 and is again headed into the mainstream of Michigan politics. A brief history is instructive.

Since at least 1939, the state had provided indirect support for private schools, for auxiliary functions such as transportation, testing, health, and special services for handicapped children.53 Even prior to that, at least beginning in 1921, some "shared time" classes were held involving both private and public school students, which continued until at least 1970.54 Starting in 1929, however, the state maintained a statutory prohibition on direct support for sectarian schools. 55

Thirty years ago in Michigan, many parents who supported the expenses of their children at private schools and who also supported government schools, urged taxpayer-funded support for private schools. The increasing costs of operating the public school system and paying for private schools created significant support for partial taxpayer funding of private education. The legislature then passed Public Act 100 of 1970, the school aid bill for the year, which provided direct support to eligible private schools, which could be used only for instruction in nonreligious subjects.56 Michigan's law was similar in concept to those passed in a handful of other states, including Pennsylvania and Rhode Island.57

The Michigan Supreme Court quickly upheld the law, ruling in an advisory opinion that "the Constitution of the State of Michigan did not prohibit the purchase with public funds of secular educational services from a nonpublic school."58

The passage of the law then provided impetus for a campaign to amend the 1963 Constitution to prohibit state funds from being used to support education at private schools. A petition drive was mounted by the "Council Against Parochiaid" to place an amendment on the ballot. The petitions were thrown out after a finding by the attorney general, and later the board of canvassers, that the petitions did not let the signers know whether the amendment would abrogate the education section of the Constitution. A split panel of the Court of Appeals, and then a 5-2 majority in the Michigan Supreme Court, ordered the issue onto the ballot. 59

However, a concern for maintaining institutional separation between church and state and avoiding "excessive entanglement" by preventing tax dollars from flowing to religious schools was probably not the only force which drove the ballot initiative. There was a heightened awareness of religious differences at that time in the state of Michigan, and with it came the concomitant concern that state dollars might be used to promote not just private education in general, but a specific religion. Thus the specter of "parochiaid" was born.

The campaign itself was confused and bitter, with the effect of the proposal unclear to the voters as well as to public officials.60 However, the amendment (Proposal C on the November 1970 ballot), was approved by a margin of 338,098 votes: 1,416,838 to 1,078,740. The new language added to Article VIII, Section 2 provided the following:

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. 61