Judge rules public funds to private schools is unconstitutional

by Julia James, Mississippi Today
October 13, 2022

A Hinds County judge ruled on Thursday that the state giving $10 million in pandemic relief funds to private schools for infrastructure improvements is unconstitutional.

The Legislature passed the bills appropriating this money at the end of the 2022 session in early April, a move that frustrated some advocates and legislators. The funding comes from the American Rescue Plan Act (ARPA), which gave the Mississippi Legislature $1.8 billion to spend on pandemic response, government services, and infrastructure improvements to water, sewer, and broadband. 

The lawsuit was filed by The American Civil Liberties Union (ACLU), Democracy Forward, and the Mississippi Center for Justice on behalf of Parents for Public Schools, a Jackson-based national nonprofit. Attorneys from these three parties argued that Section 208 of the Mississippi Constitution prohibits allocating any public funds for private schools, making the money allocated earlier this year unconstitutional. They asked the court to block the state from enforcing the law. 

Section 208, the portion of the Mississippi Constitution in question, reads in its entirety: 

“No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school, or to any school that at the time of receiving such appropriation is not conducted as a free school.” 

READ MORE: Lawmakers spent public money on private schools. Does it violate the Mississippi Constitution?

At the Aug. 23 hearing, attorneys for the state argued that because the Legislature appropriated the money to the Department of Finance and Administration to run a grant program for private schools, instead of directly to those private schools, these laws did not violate the state constitution. 

The decision from Hinds County Chancery Court Judge Crystal Wise Martin clearly rebukes this argument, pointing out that Section 208 does not specifically name the legislature and that the prohibition on allocating public money to private schools is not limited to any specific government body. 

“The state cannot avoid compliance with our Constitution simply by delegating the power to disburse appropriated funds to an executive agency,” the order reads. 

Joann Mickens, the executive director of Parents for Public Schools, testified at the hearing that any public money spent on private schools hurts public school students due to the historic underfunding of public schools. 

Martin incorporated this argument into the order, pointing to the recent infrastructure issues facing the Jackson Public School District as a symptom of that underfunding. She also referenced the competition between private and public schools, and its subsequent impact on public school enrollment and funding, when granting a permanent injunction in the case, prohibiting the state from dispersing the $10 million. 

The attorney general's office did not indicate whether they would appeal this decision, with a spokesperson for the agency saying that they are “still evaluating the State's next steps.”

When asked about a possible appeal by the state, Will Bardwell, an attorney with Democracy Forward, said that he hopes they will let the case rest but are prepared to fight if necessary. 

“The Mississippi Legislature has a long, sad history of undermining public schools,” Bardwell said. “I would like to believe that the attorney general would allow this chapter to end here and now, but that's up to her. If they go forward, we will fight them every step of the way.”

Bardwell also added that this victory is broader than the specific circumstances of the case. 

“This case is about more than $10 million dollars in infrastructure grants,” he said. “The constitution says that no public money can be appropriated to private schools, and if courts can make an exception for $10 million dollars, then they can make an exception for anything. Judge Martin's decision made clear that there are no exceptions in the constitution.” 

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.