Amicus Brief: Hile v. Michigan

The Manhattan Institute and Notre Dame Education Law Project filed an amicus brief supporting the Supreme Court petition of parents who are being barred from accessing educational vouchers to pay for tuition at parochial schools. The parents are challenging a 1970 Michigan state constitutional amendment that prohibits public support for private schools that was actually targeting religious schools. They argue that this “Blaine amendment” (a type of legal provision dating back to the anti-Catholic bigotry of the late 19th century) violates the nondiscrimination principles articulated by the Supreme Court in a series of recent cases, as well as the political-disenfranchisement doctrine. The district court dismissed the claims and the Sixth Circuit affirmed that dismissal. While these unjust decisions directly and immediately harm parents and students seeking education at faith-based schools in Michigan, the case has broader, national, implications.

Absent Supreme Court review, Michigan’s Blaine amendment is a model for other states that want to circumvent recent educational-freedom and freedom-of-religion precedents. Should the Sixth Circuit’s ruling be allowed to stand, states could adopt facially “neutral” constitutional provisions that prohibit funding to private secular and religious schools alike. Our brief builds on work by Nicole Stelle Garnett and Tim Rosenberger that exposed widespread state-level religious discrimination in funding. We explore the pernicious history of Blaine amendments and encourage the Court to put a stop to this type of anti-religious discrimination.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Nicole Stelle Garnett is a senior fellow at the Manhattan Institute and a professor at the University of Notre Dame Law School.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

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