Whether a group of African American parents prevail in their federal lawsuit, claiming the state of Mississippi did not live up to its 1868 commitment to provide a uniform education for all its children is anybody’s guess.
But the Southern Poverty Law Center and others who filed the 2017 lawsuit on behalf of the black Mississippians can rely on the very words placed in the state Constitution through the decades to build their case.
The various versions of the Mississippi Constitution offer a roadmap of the state’s intent not to provide that uniform education. The Constitution’s education provision through the years provide demonstrative, irrefutable evidence that the leadership of Mississippi had no intention of providing an equal or uniform education.
The lawsuit contends that the unequal educational opportunities that marred much of the state’s history still exist.
At the heart of the lawsuit is a federal law that placed mandates on Mississippi when it was re-admitted to the Union in 1870 after the Civil War. The law prohibited the state from taking action “to deprive any citizens or class of citizen…the school rights and privileges secured” by the 1868 Mississippi Constitution. The education provision of the state’s short-lived 1868 provision promised a strong, uniform commitment to public education.
The 1868 Constitution states “As the stability of a republican form of government depends mainly upon the intelligence and virtue of the people, it shall be the duty of the Legislature to encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement, by establishing a uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years, and shall, as soon as practicable, establish schools of higher grade.”
The state’s current Constitution, enacted in 1890, weakened that commitment by among other things removing the word uniform and adding a new section, mandating separate schools for “children of the white and colored races.”
That language establishing separate education system based on race was not removed from the Constitution until 1977.
Before then, there were amendments passed in the 1930s and famously, or infamously, in 1960, to continue to weaken the education commitment in the Constitution. With the state facing the forced integration of the schools by the federal government, the Legislature passed a resolution that was approved by voters to proclaim that “the Legislature, may in its discretion, provide for the maintenance and establishment of free public schools for all children between the ages of six and 21 years , by taxation, or otherwise, and with such grades as the Legislature may prescribe.”
The language, which was approved by voters in 1960, essentially was saying the Legislature could disband the public schools rather than desegregate them. The provision passed overwhelmingly with only three counties – Itawamba and Tishomingo in northeast Mississippi and Jackson on the Gulf Coast – voting against the language.
To the state’s credit, in 1987, the language giving the Legislature discretion as to whether to have public schools was removed. But still, the constitutional provision proclaiming the state’s commitment to public education is weaker than what was in that 1868 Constitution.
Each state has a provision espousing its education commitment. Mississippi’s is generally viewed as one of the weaker commitments. It gives the Legislature wide discretion in determining the “conditions and limitations” on the public schools.
That, to a certain extent, is why the Legislature can thumb its collective nose at fully funding the Mississippi Adequate Education Program, which is the mechanism to provide the state’s share of funding for the basic operation of local school districts and, if fully funded, is designed to help alleviate some of the educational inequities found in the state.
That weak constitutional commitment is the reason a group of education supporters gathered the signatures to place Initiative 42 on the ballot in 2015 in an attempt to strengthen that commitment to public education. It should not be surprising that the entire state political leadership lined up against and ultimately defeated Initiative 42 by a narrow margin.
That opposition should not have been surprising. After all, that is the history of the state.
Earlier this month the 5th U.S. Circuit Court of Appeals ruled that the lawsuit claiming the state violated the federal law by changing its constitutional commitment to public education could proceed.
The goal of the lawsuit is not to recoup funds education has lost in the past because of those inequities but to enhance that commitment going forward, which incidentally also was the goal of Initiative 42 supporters.
It is safe to say that if Initiative 42 had passed, the current lawsuit would have been moot.