Mississippi Supreme Court Hears Lawsuit Regarding Public Funding for Private Schools

During oral arguments before the Mississippi Supreme Court on Tuesday, attorneys representing public school advocates argued that the state constitutional provision prohibiting public funds from going to private schools is “firm.”

Attorneys Rob McDuff and Will Bardwell, who represent Parents for Public Schools, stated that when the 1890 Mississippi Constitution was written, public funds were being used for private schools, and the framers of the constitution intended to prevent this. Section 208 of the constitution states that public funds cannot be provided to any school that is “not conducted as a free school.”

In 2022, Parents for Public Schools filed a lawsuit challenging the constitutionality of a $10 million state legislative appropriation to the Midsouth Association of Independent Schools.

“Section 208 expresses a simple principle: public money shall go to public schools,” McDuff argued before a panel of three justices from the nine-member Supreme Court on Tuesday.

Only justices Leslie King, Robert Chamberlin, and David Ishee heard the oral arguments. However, all nine justices may have a say in the ruling. The Attorney General’s Office appealed the case to the Supreme Court after Hinds County Chancellor Crystal Wise Mastin declared the Legislature’s action unconstitutional.

On Tuesday, Justin Matheny from the Attorney General’s Office defended the Legislature’s decision to allocate the funds to private schools for infrastructure repairs, contending that the money came from more than $1 billion in federal funds provided to the state for COVID-19 relief and was not state money per se.

In addition, Matheny highlighted that the legislation did not directly appropriate the funds to private schools. Instead, it instructed the Mississippi Department of Finance and Administration to distribute the funds in the form of grants to these schools. Justice Leslie King, who presided over the panel, pointed out that it is customary for the Legislature to instruct state agencies on how to distribute funds to the intended recipients.

Matheny also argued that Parents for Public Schools did not have standing to bring the case, as the group was not directly affected by the Legislature’s action. Bardwell countered this, stating that the group, including taxpaying parents of public school students, had standing as taxpayers.

Justice King asked Matheny if he was suggesting that sometimes there is no one with standing to challenge the constitutionality of legislative actions through lawsuits.

“It is possible and it should not bother anyone,” Matheny replied, adding that no one was harmed by the legislative action, as the funds were not state funds dedicated to public schools.

Justice Chamberlin then posed a hypothetical question to McDuff: If Congress specifically earmarked funds for private schools, would the Mississippi Legislature have the authority to allocate those funds to private schools? McDuff responded that, based on Section 208 of the state constitution, the Legislature would not have the power to do so. Chamberlin’s hypothetical scenario suggests that Congress could bypass the Legislature and directly allocate funds to private schools, similar to how it provided COVID-19 relief funds to public schools.

The money allocated by the Legislature to private schools in 2022 came from a pool of federal discretionary funds that were sent to the states for various purposes, including infrastructure improvements. However, Bardwell and McDuff argued that since the funds were public, they could not be used for private schools in Mississippi.

Buck Dougherty of the Liberty Justice Center contended that the private schools should be allowed to intervene in the case, as they were not permitted to do so in the lower Hinds County Chancery Court. The judge in the original case ruled that their request to intervene was made too late.

Dougherty also argued that Section 208 of the state constitution violates the U.S. Constitution. He cited previous rulings by the U.S. Supreme Court which declared unconstitutional provisions in other states that prohibited public funds from going to private religious schools.

However, Bardwell pointed out that the issue at hand is not about public money going to religious schools.

He explained that the U.S. Supreme Court has consistently ruled that “the state is not obligated to fund private schools.” However, if a state chooses to allocate funds to private schools, it cannot discriminate against religious schools. The key distinction, according to Bardwell, is that Section 208 of the Mississippi Constitution prohibits public funds from going to all private schools, regardless of religious affiliation.

The Tuesday oral arguments in downtown Jackson drew numerous individuals on both sides of the issue.

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