Attorney General Lynn Fitch speaking at the Neshoba County Fair on Thursday, July 28, 2022. Credit: Vickie D. King/Mississippi Today

The Mississippi Attorney General’s Office has filed its appeal in a lawsuit about public money being allocated to private schools, echoing their arguments from earlier in the process. 

The Legislature gave $10 million to a grant program for private schools at the end of the 2022 legislative session, 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 Mississippi chapter of the American Civil Liberties Union (ACLU), Democracy Forward, and the Mississippi Center for Justice brought a lawsuit challenging this allocation on behalf of Parents for Public Schools, a Jackson-based national nonprofit.

The decision, which a Hinds County judge handed down in October 2022, found that the allocation violated section 208 of the Mississippi Constitution, which prohibits giving any public funds to private schools. With this decision, the state was barred from distributing the money. Legislators re-allocated the $10 million in the 2023 legislative session in case the appeal prevails. 

Section 208 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.” 

The attorney general’s office raised one new point in its appeal, saying Section 208 only applies to state educational funds. As this money came from federal COVID relief, it is not subject to these restrictions. 

Will Bardwell, an attorney with Democracy Forward, disputed this point, saying that the money’s origin is not relevant. 

“This is money that went into the state treasury and was doled out by state officials under rules promulgated by the state Legislature,” he said. “Of course it’s state money.”

The appeal’s other main points are similar to previous filings, arguing that Parents for Public Schools does not have a legal standing to challenge the constitutionality of this allocation and its members are not negatively impacted.

The decision from Hinds County Chancery Court Judge Crystal Wise Martin referenced the competition between private and public schools, and its subsequent negative impact on public school enrollment and funding, when granting a permanent injunction in the case. 

The attorney general’s office disputed this line of thinking but said that even if this situation were to occur, it would be public schools or their students who would experience a negative side effect of private schools receiving this money, not the members of Parents for Public Schools who are predominately parents and teachers. 

Bardwell called the notion that parents don’t have a legal interest in their children’s constitutional rights “pretty silly.” 

Attorneys for the state also reiterated the argument 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 judge’s decision rebuked this idea, saying the state cannot avoid compliance with the constitution by delegating appropriating power to an executive agency. 

Bardwell echoed this sentiment when discussing the new filing. 

“The constitution says what it says, it is unambiguous,” he said. “It forbids sending any funds, at all, to private schools. You can’t get around that by money laundering.”

Joann Mickens, the executive director of Parents for Public Schools, said legislators and taxpayers know that the purpose of public funds is to support public goods and services. 

“In this case, Parents for Public Schools is standing up for almost half a million Mississippi children, their families, their communities, and the greater good,” Mickens said in a statement. “In doing so, we stand up for a stronger, better Mississippi and against perpetuating inequity.”    

Bardwell said their filings are due in early June and he expects the Mississippi Supreme Court will want to hold oral arguments in late summer or fall. 

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Julia, a Louisiana native, covers K-12 education. She previously served as an investigative intern with Mississippi Today helping cover the welfare scandal. She is a 2021 graduate of the University of Mississippi, where she studied journalism and public policy and was a member of the Sally McDonnell Barksdale Honors College. She has also been published in The New York Times and the Clarion-Ledger.