Attorney General Lynn Fitch’s office is appealing a recent court decision which declared giving federal money to private schools is unconstitutional, according to new documents filed Tuesday. 

The Legislature gave $10 million to private schools at the end of the 2022 session in early April, 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 last month, found that the allocation violated section 208 of the Mississippi Constitution, which prohibits giving any public funds to private schools. 

Attorneys for the state argued 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 decision from Hinds County Chancery Court Judge Crystal Wise Martin rebukes this argument, pointing out that the prohibition on allocating public money to private schools is not limited to any specific government body. 

“The state cannot avoid compliance with our Constitution simply by delegating the power to disburse appropriated funds to an executive agency,” the order reads. 

Will Bardwell, an attorney with Democracy Forward, said he was not surprised by the appeal. 

“Judge Martin’s decision is thorough and well reasoned,” said Bardwell. “We feel very comfortable defending that decision at the Supreme Court.”

The judge separately rejected the Midsouth Association of Independent Schools’ (MAIS) attempt to intervene in the lawsuit. Since private schools had to be a member of MAIS to be eligible for this money, the group sought to become a party to the lawsuit in order to defend the interests of their member schools, but both the state and the attorneys for Parents for Public Schools said MAIS was introducing new legal issues that were not relevant to the case. 

MAIS also filed an appeal, challenging both the denial of its attempt to intervene and the overall decision. 

The attorney general’s office confirmed their intent to appeal to Mississippi Today. The Supreme Court will now review the case and make further determinations. 

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