October 2021 | Number 468
Michigan Parents File Lawsuit Against Nation's Strictest Blaine Amendment
A group of five Michigan families have filed a lawsuit in federal court against what is widely seen as the toughest Blaine Amendment in the nation. According to the Mackinac Center for Public Policy, "The lawsuit seeks to enable Michigan families to use funds they have saved through the Michigan Education Savings Program to help pay for private educational opportunities, including private school tuition."

The lawsuit flows from the changes Congress made to "529 accounts" in 2017. A 529 plan is an investment account for education expenses. Four years ago, Congress expanded 529s to include K-12 private school tuition as a qualified expense.

While Michigan statute defers to federal law on what constitutes a qualified expense under the 529 program, the Michigan Constitution contains a Blaine Amendment that prohibits the use of public funds “to aid any nonpublic elementary or secondary school,” including any “tax benefit” to support a student’s attendance at a nonpublic school.

The lawsuit argues that, among other things, the original amendment was motivated by religious animus. According to the complaint, the amendment was adopted in 1970 "in response to a modest proposal to appropriate $150 per student in funding for private schools—which were then more than 90% religious—spurred on by an antireligious ballot sponsor (the 'Council Against Parochiaid') and by anti-religious, especially anti-Catholic, advertisements, campaign literature, and letters to the editor."
Federal Data Shows Private Schools Offered High Rates of In-Person Learning During COVID
The Department of Education's School Survey Dashboard was created to collect data on learning opportunities offered by schools during COVID-19. The website contains much useful and interesting information on the extent to which schools have offered remote-only, hybrid, or full-time in-person instruction during the pandemic.

This screenshot from the dashboard illustrates what kinds of learning different types of schools were offering for Grade 8 in April 2021. The data shows that private schools were offering significantly higher rates of in-person learning opportunities than public schools.

Data for Grade 4, and other months of the school year, is also available.
Screenshot from the U.S. Department of Education's School Survey Dashboard showing data for Grade 8 in April 2021
AFC Summit Celebrates 30th Anniversary of Milwaukee Parental Choice Program
The American Federation for Children held its Annual Policy Summit in Milwaukee, WI on September 29-30. Attendees celebrated the 30th anniversary of the Milwaukee Parental Choice Program, considered to be the first modern school choice program in the country. Former Wisconsin governors Tommy Thompson and Scott Walker, former secretary of education Betsy DeVos, and longtime school choice advocate Dr. Howard Fuller were among the many notable guests who reminisced upon the remarkable school choice gains of the last three decades and the work still to be done.
Scott Jensen, Dr. Howard Fuller, Susan Mitchell, & former Governor Tommy Thompson during a panel discussion on the history of the Milwaukee Parental Choice Program (Photo: American Federation for Children)
Congressional Childcare & Universal Pre-K Proposal Could Threaten Faith-Based Providers
Debate over a controversial $3.5 trillion "reconciliation" bill includes concerns that its universal pre-K and expanded childcare provisions could threaten faith-based providers.

The bill under consideration would publicly fund pre-kindergarten for all three and four year-olds, tuition-free, and would massively subsidize childcare costs.

There is considerable debate over what these proposals would mean for private schools. One significant concern is that the legislation, if passed, would treat participating private schools as recipients of federal financial assistance. This has serious implications for any private institutions that would wish to participate, especially faith-based providers.

It remains an open question how the final legislation will look, or whether a bill will be passed at all. Stay tuned.
Manhattan Institute Report: Accountability and School Choice
Notre Dame Law School's Nicole Stelle Garnett has written an interesting new issue brief for the Manhattan Institute titled "Accountability and Private-School Choice." From the report:

"On one level, it is entirely reasonable to condition private schools’ participation in parental-choice programs on some government oversight. When the government acquires goods or services from the private sector, surely it is entitled to ensure that it receives what it is paying for. On the other hand, this simple logic masks enormous complexities...To what extent do—or might— accountability regulations threaten the autonomy and religious liberty of participating schools?

"These challenges include opponents’ often disingenuous deployment of accountability demands as a weapon to undermine parental choice; the problem of selection bias; the risk that accountability regulations deter some schools from participating; and the limits of the standardized tests on which most accountability regulations rely.

"First, regulations should aim to give parents the information needed to make wise choices, thereby enabling them to hold schools accountable through enrollment decisions...Second, accountability regulations ought to advance the goal of providing parents with access to more and better schools. In most cases, this goal is better advanced by convincing good schools to participate in choice programs than by excluding bad ones from doing so."

National Blue Ribbon Schools Announced
Secretary of Education Miguel Cardona has announced the names of the schools identified by the US Department of Education as the National Blue Ribbon Schools for 2021.

Twenty-three private schools were among the awardees this year. Each state's commissioner of education nominates public schools for the award, and CAPE nominates private schools. All winning schools will be honored at an awards ceremony to be held on Thursday, November 4th and Friday, November 5th at the Gaylord National Resort and Convention Center in the Washington, DC area.

For more information on the National Blue Ribbon Schools program, visit the CAPE website.


Valor Christian High School - Highlands Ranch






New York



South Dakota
O’Gorman High School - Sioux Falls



ARP EANS Decisions Coming
Most private school leaders are by now familiar with the Emergency Assistance to Non-Public Schools program (EANS), passed by Congress in December 2020 to provide private schools with emergency access to COVID related products and services. A second iteration of EANS was passed in March of 2021, often called EANS II or ARP EANS.

A key difference between EANS I and EANS II concerns the family income threshold for participation. Whereas under EANS I, SEAs were directed to “prioritize services or assistance to non-public schools that enroll low-income students,” under EANS II, states are to “provide services or assistance to non-public schools that enroll a significant percentage of low-income students.”

This summer, the Department of Education took an unfortunate step when it announced that a non-public school will have satisfied this new "significant percentage" requirement if the percentage of students from low-income families enrolled in the school meets or exceeds 40 percent. This of course would eliminate most private schools in the country from participation in the one program Congress specifically passed to help private schools weather the COVID storm.

However, the Department did offer a possible mitigation. State governors, who must apply to the U.S. secretary of education for the EANS funds, were allowed the opportunity to propose an alternate significant poverty percentage based on the circumstances in that governor's state. Crucially, the secretary of education must approve such a proposed alternate percentage.

Governor's applications to the secretary were due in last month, and the Department is starting to make decisions. As always, be in touch with your State CAPE for updates on how this important program will be administered in your state.
Private Education: Good for Students, Good for Families, Good for America
CAPE member organizations:

Agudath Israel of America

Association of Christian Schools

Association of Christian
Teachers and Schools

Association of Waldorf
Schools of N.A.

Christian Schools International

Council of Islamic Schools
in North America

Council on Educational Standards
and Accountability
Evangelical Lutheran Church
in America

Friends Council on Education

Islamic Schools League of America

Lutheran Church–Missouri Synod

National Association of
Episcopal Schools

National Association of
Independent Schools

National Catholic
Educational Association
National Christian School

Office for Lasallian Education
Christian Brothers Conference

Oral Roberts University
Educational Fellowship

Seventh-day Adventist
Board of Education

United States Conference of
Catholic Bishops

Wisconsin Evangelical Lutheran
Synod Schools
Affiliated State Organizations a coalition of national associations serving private schools K-12

Executive Director:
Michael Schuttloffel

Outlook is published monthly (September to June) by CAPE.
ISSN 0271-145

1300 Pennsylvania Ave, NW
Washington, DC 20004
Tel: 844-883-CAPE

Michael Schuttloffel
Executive Director
Phone: 844-883-CAPE