Can private schools receive public money?
The Mississippi Supreme Court will consider that question on Feb. 6 when it will begin hearing oral arguments on a lawsuit that contends using public funds for private schools would give private schools an advantage over public schools.
The case stems from two bills passed by the legislature in 2022 that appropriated $10 million in federal COVID relief funds from the American Rescue Plan Act (ARPA) to private schools in Mississippi through a grant program overseen by the Department of Finance and Administration. Private schools associated with the Midsouth Association of Independent Schools (MAIS) would be eligible for grants of up to $100,000.
Just before the grant program was set to start, Parents for Public Schools, a Jackson-based nonprofit, filed the lawsuit against the department in Hinds County Chancery Court. The nonprofit is a national organization of community-based chapters aiming to promote and strengthen public schools by engaging parents. It is represented by the Mississippi Center for Justice, the Mississippi ACLU and Democracy Forward.
In October 2022, the chancery court ruled the allocation of funds unconstitutional in favor of Parents for Public Schools. The state and MAIS appealed the decision to the Supreme Court.
What are the arguments in the case? How will the decision affect education funding in Mississippi?
Constitutional challenge
The lawsuit asserts the funding program is a direct violation of section 208 of the state constitution which dictates that certain appropriations of funds are prohibited regarding schools.
Section 208 reads, “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.”
Will Bardwell, senior counsel for Democracy Forward, told The Dispatch the constitution clearly stipulates that any money the legislature is going to spend on schools must be spent on public schools.
“Even if you go back to 1890, which is when our current constitution was adopted, people understood how important public education was to the future of our state,” he said. “They also recognized from a practical standpoint that there was only so much money to go around, so whatever money was available for schools should be spent on public schools.”
Parents for Public Schools argues in its lawsuit the grant program gives private schools an unfair advantage over public schools, which are ineligible to apply for the $100,000 grants.
Bardwell said that with Mississippi public schools being constantly underfunded, appropriating public funds to private schools is unacceptable.
“Budgeting decisions are decisions about priorities, but to on the one hand habitually underfund public schools, and at the same time, find millions of dollars lying around to be given away strings-free to private schools is just outrageous,” he said.
The state’s defense
Mississippi is one of 37 states with a constitutional amendment that prohibits the use of public funds to support private schools.
However, the state’s appeal claims the legislature is within its rights to allocate the funds to private schools, arguing section 208 only applies to educational funds and not to federal COVID relief funds.
The state also argues that because funds are not appropriated directly to private schools but rather to the Department of Finance and Administration for the grant program, the laws are not unconstitutional.
The Liberty for Justice Center, which filed an appeal on behalf of MAIS, is arguing the plaintiff’s efforts to stop the program are illegal and discriminatory.
According to the center’s website, “the group, represented by the ACLU, is relying on the notorious post-Civil War ‘Blaine Amendments’ in the Mississippi state constitution to stop the program. The provision was designed a century ago to discriminate against African Americans and Catholics by withholding education funding for independent schools in the state, a legacy that continues to this day.”
How will private and public schools be affected?
The Liberty for Justice Center argues that MAIS schools serve children and federal taxpayers the same as public schools and face infrastructure issues brought on by the pandemic. The grant program would allow funds to be used to address those problems.
Bardwell said that argument could set a new precedent allowing even greater amounts of public funds to be allocated to independent schools instead of supporting public schools.
“(Section 208) doesn’t allow any exceptions. It says any funds can’t be appropriated to private schools,” he said. “If that doesn’t mean anything, if that is a rule that the legislature is allowed to ignore, then this is a case about a lot more than $10 million dollars. Because if the legislature can ignore that limit, then there’s no reason they couldn’t appropriate $100 million to private schools or $500 million to private schools.”
Following oral arguments, the Supreme Court is expected to issue its decision in late June.
McRae is a general assignment and education reporter for The Dispatch.
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