On Feb. 6 the Mississippi Supreme Court will hold oral argument in a case of vital importance to public education in its competition with private schools. Since 1890 Section 208 of the Mississippi constitution has forbidden the appropriation of “any funds … to any school that at the time of receiving such appropriation is not a free school.” The court will consider whether that language allows sending public money to private schools by means that are not a “direct” legislative appropriation.
Private schools’ thirst for public money is not new. In 1968, the legislature reacted to court-ordered school desegregation by adopting a tuition grant program to aid the new all-white segregation academies. When public school parents sued, the federal court held the program was unconstitutional because the grants were just another means of continuing a “separate system” of racial segregation. There was no need to consider the state constitution’s prohibition.
In the current controversy, racial segregation is not the issue. The academies are no longer strictly segregated. The photographs in the Northside Sun demonstrate that, even though the absence of black faces in photographs from some local private schools is sometimes striking.
Now the questions are about the meaning of the state constitutional prohibition. In 2021 the state legislature used federal money that had come to the state to create an “Independent School Infrastructure Grant Program.” It gave $10 million to the Department of Finance and Administration and authorized that department to make grants of up to $100,000 to private schools for “infrastructure,” which was defined to include broadband services.
Parents for Public Schools, an organization founded in the 1980s to support public schools as part of an effort to keep white children in the public schools, believes the grants will make private schools more attractive and so will cause public schools to lose attendance and the funding that goes with it, and, if the funding should be replaced, will increase taxes. They sued to stop the program. Hind County chancellor Crystal Wise found that the program violated section 208 and the state appealed.
The state defends the statute in two ways. It first says Section 208 only applies to “direct” appropriations and because the money was given to the Department of Finance and Administration to distribute, Section 208 does not apply. The other side says this would make Section 208 meaningless, because not only can an intermediary be employed but an intermediary is necessary in any kind of grant program. In fact one was used in 1968. Also, it is difficult to know what a “direct” appropriation could be, given the constitution’s prohibition against laws providing for support of a particular private school, even if the school were free.
The state also says Section 208 does not apply because the money came from the federal government. Opponents argue that the money went into the state treasury before the legislature appropriated it, Section 208 says “any funds,” and, in any event 41% of the state’s budget comes from federal funds.
The appeal has attracted a colorful cast of characters in addition to the parties and they discuss other issues. The Midsouth Association of Independent Schools makes the claim that Section 208’s prohibition against public funding should be held unconstitutional because the 1890 constitution discriminated against black people. It is true that the 1890 convention adopted strategies to curtail black voting, but there is no evidence that Section 208 was itself discriminatory and, of course, today the effect of Section 208’s prohibition falls almost excusively on whites. And the argument carries a truly bizarre twist when it is considered that the Association was started in 1968 by the all-white segregation academies who lost out in the federal court case.
Others have filed friend of the court briefs. The Institute for Justice, a Washington lobby group that promotes “nonpublic schooling,” argues that parents of private school students have a constitutional right that prevents states from denying subsidies to those parents. But tuition grants to parents are not part of the Mississippi legislation, and, in any event the claim is contradicted by language in a U.S. Supreme Court opinion.
The brief also mistakenly argues that the legislature should at least be permitted to give tuition grants to parents because the Supreme Court has said those grants do not “endorse” religion when it is the parent, not the state, who decides to use them at a religious school. But where the issue is not “endorsement” but simply the “receiving’ of public money by a private school, parental choice plays no role. By definition, no matter what school the parent chooses the money is going to be “received” by a school that is not “free.”
Another national group, Public Funds Public Schools, together with the Mississippi Association of Educators and another organization, goes back in history to rebut the claim of racial bias and points out that the Supreme Courts of South Carolina and Kentucky have upheld and enforced state constitutional provisions much like Section 208.
It is possible that the court may reach none of these issues. The state says Parents for Public Education does not have the right to sue because neither it nor its members have been hurt, i.e. they do not have “standing” to sue. This argument is based on a “case or controversy” constitutional requirement for federal suits which has no parallel in our state constitution and does not apply to state suits, but has nevertheless found its way into state law. It is hard to imagine anything more hurtful to an organization created to curb white flight to private schools than a statute funding those same private schools, but the court may look for a way to avoid talking about Section 208.
Luther Munford is a Northsider.
