White Mississippi legislators’ decision to steer federal infrastructure grant money to overwhelmingly white segregation academies was on trial last week as the Mississippi Supreme Court heard arguments on the constitutionality of the diversion.
Education-advocacy nonprofit, Parents for Public Schools, filed a 2022 lawsuit challenging the constitutionality of legislators steering $10 million to the Midsouth Association of Independents Schools (MAIS), an organization of private schools with a disproportionately white student body despite Mississippi being 40% Black. Most member schools began as segregation academies opened in response to federal court-mandated school desegregation between the 1950s and 1970s. Affiliated schools, like Central Hinds Academy, maintain their majority-white status through high tuition and attendance fees ($6,144 for one student) that few Black families can afford. Other overwhelmingly white MAIS members, like Columbus Christian Academy and North Sunflower Academy, charge high school student fees of $6,000 and $5,000, respectively.
Critics say white legislators diverted $10 million in federal pandemic-related aid to these schools against the spirit of Mississippi Constitutional article Section 208, but House leadership has traditionally welcomed and defended the diversion and keeps sneaking state money into private schools. They passed a rule allowing state taxpayers to deduct donations to seg schools from their state taxes, and they have gone so far as to try to slash state pensions of voucher-opposed legislators who are educators in their day jobs.
Attorney Rob McDuff, representing Parents for Public Schools, argued before justices Robert Chamberlin, Leslie King, and David Ishee that Mississippi law is very clear about barring public money to private schools. Justin Matheny, of the MS Attorney General’s Office, countered that Section 208 holds no sway over the diversion because the money going to private academy schools was federal money courtesy of the American Rescue Plan Act.
“Nobody diverted public schools’ federal money to anybody else […] but […] [legislators] sent other ARPA money to (Department of Finance and Administration) infrastructure grants to Mississippi independent schools,” Matheny said. He also argued the money does not fall under the auspices of Section 208 because it may never have gone to public schools, and so does not count as school money.
"Once you start breaking the barrier with $10 million here, you can do $100 million there from the general fund and send it to private schools, or another $500 million here."
McDuff responded that plaintiffs could not prove the $10 million diversion would have gone to public schools, but warned against breaking the language of “an ironclad principle.”
“Once you start breaking the barrier with $10 million here, you can do $100 million there from the general fund and send it to private schools, or another $500 million here. You really are taking money of a limited amount that the state has to spend on education and it’s going to private schools, to the detriment of public-school children.”
Section 208 states that: “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.”
McDuff explained that the state convention clearly conceived Section 208 for the purpose of prohibiting public funds for private schools.
“It doesn’t say ‘nor shall any funds except those that originated as federal funds...’” McDuff explained to the court. “It doesn’t say ‘nor should funds that otherwise would go to the public schools—but it’s okay if they wouldn’t necessarily go to the public schools.’ It doesn’t say ‘nor shall any funds that are of a significant amount, when compared to public school funding—but it’s okay if it’s a relatively small amount.’ […] The state and the intervenor want you to change that language and write in these exceptions whether as part of a ruling on standing or part of a ruling on the merits, or both.”
McDuff added that if the court chooses to alter constitutional language to accommodate private academies their decision could have huge implications for the future of public-school funding.
“Under their argument the legislature could easily circumvent Section 208 by pulling [money] from general funds or some other source that wouldn’t necessarily go to public schools,” McDuff said. “[…] Or they could route the appropriation through a state agency, which most appropriations are routed through because you have to have an agency to dispense the money. […] [B]ut the purpose of Section 208 was that all appropriations to schools go to public schools. The framers wouldn’t have put this in the constitution if it could be so easily circumvented.”
Matheny insisted before judges that “an advocacy organization” like Parents for Public Schools was not directly harmed by the monetary diversion and therefore “can’t challenge spending decisions with speculative affects and generalized taxpayer objections.”
McDuff countered that organizations like the Parents Campaign should very much have standing to lodge constitutional complaints in a court of law.
“[Under the state’s rationale …] no one would have standing,” he said. “Parents wouldn’t have standing, [to sue], public schools wouldn’t have standing. No one could challenge this, and they could just keep on spending public money on private schools despite Section 208, because they would just pull it from general funds.”
Buck Dougherty, lead counsel of Liberty Justice Center, which supports MAIS, made heads spin by pointing out that the state law now threatening to block tax payments to segregation academies was a product of bias against Catholic schools at the time of its creation.
“Post Reconstruction, we had an anti-Catholic sentiment in this country […] because newly freed slaves were being taught to read and write by Catholic and parochial schools,” Dougherty said. “[…] These amendments were born of racial hostility and discrimination. The language of 208 […] is code for anti-Catholic.”
Attorney General Lynn Fitch appealed the case to the Supreme Court after Hinds County Chancellor Crystal Wise Mastin ruled the Legislature’s action was unconstitutional. The court may render a decision later this year.