Former Governor Ronnie Musgrove on Wednesday drilled home his argument that by under funding the state’s school funding formula the Legislature is not fulfilling requirements of the state Constitution.

In oral arguments before the Mississippi Supreme Court, Musgrove told justices the Mississippi Adequate Education Program is the Legislature’s attempt to meet the requirements of Section 201 of the Constitution to “provide for the establishment, maintenance and support of free public schools.” By not fully funding it, he said, the Legislature is failing to meet constitutional requirements.

Musgrove filed the lawsuit on behalf of 21 school districts, including Jackson Public Schools, in 2014. Hinds County Chancery Judge William Singletary ruled against Musgrove and the school districts in 2015, stating that the Legislature is not required to fully fund the school formula every year. Musgrove then appealed the decision.

The lawsuit also asks the state to repay the funds those districts have not received due to under funding, a total of some $230 million.

Justice Jess H. Dickinson pointed out to Musgrove that Section 201 goes on to state “upon such conditions and limitations as the Legislature may prescribe.”

“Why would conditions and limitations not include their (the Legislature’s) constitutional, statutory discretion to appropriate money as they see fit?” Dickinson asked.

Musgrove compared public school funding to the section of the constitution that requires compensation of judges.

“Because it is a mandate, the Legislature uses its discretion in determining the number of judges, the type of judges, what kind of case load, who has jurisdiction once they determine that number (of judges) and the salary,” he explained. “But once they determine that number, the salary, then it is not an option. It is mandated. So consequently in Section 201 … it’s up to the Legislature to define at what level we support them.”

Musgrove said the MAEP constitutes the “maintenance and support” portion of Section 201 and thus must be funded.

Several other justices also expressed concern over separation of powers and the judiciary branch’s role.

“My question to you is how can this court consistent with our constitutional limitations order legislators to get together over at the Legislature, sit down and appropriate $235 million to any agency without us stepping over a constitutional bound?” Justice James Maxwell asked Musgrove.

Musgrove pointed to decisions made by the Supreme Court in the past, quoting a decision that said the Legislature’s power to appropriate state funds “may not be exercised in violation of the constitution.”

Justin Matheny, the special assistant attorney general representing the state, also came in for questioning by justices, about his argument that the Legislature is not required to fully fund the MAEP. He noted that the Legislature is required to fully fund state employee salaries set by law because state employee salaries deal with contract rights.

“This (school funding) is totally different. This is the 2006 Legislature purporting to speak directly to future Legislatures and tell them you only have one option, and that’s to appropriate exactly what MDE (Mississippi Department of Education) says” each year, Matheny said.

Matheny was referring to the 2006 amendment to the MAEP stating that the Legislature “shall” fully fund the formula.

“Our constitutional provisions prohibit that – you can’t lay traps for the Legislature to say in order to get its discretion back, they have to first go in and knock out this statute that purports to control your discretion,” he continued.

Justices continued to ask about the difference between that and salaries for judges or teachers, all of which are set by the Legislature each year.

“I’m asking you is there some case somewhere that says what you’re saying or is this some interpretation or your personal view?” Dickinson asked.

Matheny acknowledged the matter had never come up in the Mississippi Supreme Court, but referred to a case in Massachusetts he said supported this position.

Both sides of the lawsuit now await the Court’s decision.