Judge: Local tax dollars crux of charter school lawsuit

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Kate Royals, Mississippi Today

Midtown Public Charter School in Jackson is one of three public charters schools operating in the state this year.

A Hinds County judge said Tuesday that the most important issue in a lawsuit against the state’s charter schools is the issue of local tax dollars moving with students from traditional public schools to charter schools.

The statement by Hinds County Chancery Court Judge Dewayne Thomas came as both sides of the lawsuit challenging the way the state’s public charter schools are funded presented their arguments in court.

Public charter schools in Mississippi are funded by the state on a per-pupil basis according to the school’s average daily attendance, or the number of students who attend 63 percent or more of a school day. They also receive local dollars from ad valorem tax receipts. When a student enrolls in a charter school, money that would have gone to the public school district moves with the student to the charter school.

Will Bardwell, attorney for the Southern Poverty Law Center, which represents a group of parents of students in the Jackson Public School District, reiterated to the court that Section 206 of the state’s constitution prohibits school districts from spending ad valorem tax revenue on any schools it does not oversee.

He referred repeatedly to the Mississippi Supreme Court’s decision in Pascagoula School District v. Tucker, in which the school district fought a new law requiring revenue that it collected from taxes levied on liquefied natural gas terminals and crude oil refineries in its district be distributed to the three other districts in the county.

Ultimately, the Supreme Court declared the law unconstitutional because it “violates the constitutional mandate that a school district’s taxes be used to maintain ‘its schools.’ ” Bardwell noted to Thomas.

Attorneys defending the state’s charter school law said that case is not comparable to the current suit over charter schools because taxpayer dollars are following the child to a public charter school his or her parents chose.

“The plaintiffs stretch too far the Supreme Court’s decision in Tucker,” said Krissy Noble, attorney for the state Attorney General’s office. “Unlike in the legislative mandate in Tucker … taxpayer parents choose to send their child to charter schools. That money simply follows the student.”

Further, she said, there are already several examples of tax money moving with students to new schools outside the realm of charter schools.

Noble cited conservatorships and transfer provisions as examples. When the state takes over a school district and appoints a conservator, the local school district is abolished, meaning state and local funds are going to a non-locally run district.

In addition, state law allows a student who lives more than 30 miles from his or her school to attend a school in an adjacent school district that is physically closer. Both the local and state funding for that student then go to the other school district, she noted.

“The entire purpose of the local school tax levy is to benefit local students,” Noble said.

Bardwell also cited Section 208 of the constitution, which states the Legislature must not appropriate any money to a school that is not a “free school.” He defined that term as a school that must be regulated by the State Superintendent of Education and the local school district superintendent.

Noble, however, argued that Bardwell’s interpretation of “free school” is misguided.

“Free simply means free as in a school that does not charge tuition. Charter schools charge no tuition,” she added. She also pointed that the current version of Section 208 of the state Constitution makes no mention of a requirement that the school be overseen by the state superintendent of education and a local superintendent.

Mississippi’s charter schools are operated by nonprofit organizations that appoint a board for the school. The state’s first two charter schools opened in 2015, and the third opened this school year. Each charter school operates under its own board and the state’s seven-member Charter School Authorizer Board, which oversees the charter system and approves applications. The board did not approve any new charter schools last year.

Defendants of the charter school law also reiterated that a ruling in the plaintiffs’ favor would shutter the state’s existing charter schools. One charter school operator already pulled its application last year in light of the lawsuit, they said.

“This is not a broader case about shutting down charter schools,” Bardwell said. “This is about shutting down unconstitutional government spending … and must be treated like any other unconstitutional issue and permanently enjoined.”

Bardwell said the Legislature could at any time devise a new funding mechanism for charter schools.

“If you and I sat down over a cup of coffee, we could probably come up with a dozen ways to constitutionally fund charter schools,” Bardwell said. “The Legislature has not done that to this point.”

Despite repeated statements from the attorneys backing the charter school law that the hearing should not turn into a policy debate, Thomas mentioned several times that charter schools only accept a “selected few” students.

“If I was a legislator, I wouldn’t vote for this statute,” Thomas said.

Thomas said he will issue a ruling on all parties’ motions after June 21.