The state of Michigan, responding to a lawsuit claiming $2.5 million set aside to reimburse private schools for state mandates is unconstitutional, says an "extremely literal interpretation" on Michigan's ban on public funding for private schools creates "serious problems."

"An extremely literal interpretation would prohibit government assistance for nonpublic schools that is not only reasonable, but morally and legally obligatory," the state said in court filing. "A literal interpretation would render nonpublic schools outlaws, unable to assert a claim in state court, register a deed, receive public utilities, or rely on basic police and fire protection."

The filing is in response to a lawsuit filed in March by public school groups against the state, claiming it was unconstitutional to include $2.5 million in the current budget to reimburse nonpublic schools for the cost of complying with health and safety mandates.

Public school groups say the funding doesn't pass legal muster because, according to the Michigan constitution, public funds cannot be used "directly or indirectly to aid or maintain" nonpublic schools.

But the state's filing argues that if those words - "directly," "indirectly," "aid" or "maintain" - are "viewed in isolation, apart from their context, it could be argued that no money or benefits of any kind may be used to aid, maintain, or support any activity involving a nonpublic school."

"It would be hard to believe that a state or local government in the U.S. would deliberately withhold police and fire protection from its children, and even harder to believe that the great mass of people in Michigan intended such a result," the state said, referring to the constitutional amendment approved in 1970 prohibiting public dollars for private schools.

Public school groups, also in a court filing this week, distinguish between providing direct aid to private schools versus services provided to those schools by governmental agencies, such as police and fire departments.

Citing a prior court decision, the group said public dollars that go directly into the coffers of a nonpublic school would be unconstitutional. However, services "performed by public employees under the exclusive direction of public authorities" that benefit or serve private school students are permissible.

Public school groups also pointed to one of the mandates nonpublic schools are required to comply with: required courses on the government and constitution. Reimbursing private schools for such an expense, the filing says, amounts to "paying the wages of teachers providing instruction and a core curriculum."

The $2.5 million to reimburse nonpublic schools for various health and safety mandates, such as safety drills, criminal background checks and immunizations, was included in the state's current budget, signed by Gov. Rick Snyder in June.

The funding drew strong opposition from public school groups, who argue that it's not only unconstitutional but sets a precedent that could lead to nonpublic schools seeking even more public dollars in the future.

Oral arguments in the case have been scheduled for May 22 in Detroit in the Michigan Court of Appeals.

The groups that filed the lawsuit include the Michigan Association of School Boards, the Michigan Association of School Administrators, as well as the American Civil Liberties Union of Michigan and Kalamazoo Public Schools.

A report by the Michigan Department of Education shows 60 mandates - covering areas such as building safety, student health and safety, and education requirements - that nonpublic schools are required to comply with.

Fourteen of the mandates are tied to educational requirements. But those same mandates also relate to "student welfare," the state argued, citing requirements related to compulsory attendance and teacher certification standards.

After the $2.5 million for private school reimbursement was included in the state's budget, MDE created a form where schools could request reimbursement for certain expenses. The form gave schools until June 15 to apply for reimbursement.

Jeffrey Donahue, an attorney with White Schneider PC, an Okemos-based law firm representing the public school groups, said all parties involved in the lawsuit have agreed to hold off on distributing any reimbursements until July 1, with the hope the lawsuit will be resolved by that time.

In addition, four Republicans in the state Legislature - Sen. Phil Pavlov, of St. Clair, Sen. Patrick Colbeck, of Canton, Rep. Tim Kelly, of Saginaw Township, and Kim LaSata, of Bainbridge Township - have sought to sign on as defendants in the case.

On Tuesday, Judge Cynthia Stephens denied a motion by the Michigan Catholic Conference, the Michigan Association of Non Public Schools and the Immaculate Heart of Mary, of Grand Rapids, to join the case as defendants.