Eric J. Shelton/Mississippi Today, Report For America

Republican state treasurer Lynn Fitch, a candidate for attorney general, speaks during the Neshoba County Fair in Philadelphia, Miss., Thursday, Aug. 1, 2019. Fitz was elected attorney general in November 2019.

Attorney General Lynn Fitch plans to ask the U.S. Supreme Court to rule against a lawsuit that attempts to ensure Mississippi adheres to language put into the state’s 1868 Constitution guaranteeing a uniform school system for all students.

That language mandating a uniform school system was replaced in the 1890s by the creation of separate schools for Black and white students.

While the language creating the separate school systems has been removed, the lawsuit filed by the Southern Poverty Law Center maintains the current language in the Mississippi Constitution expressing the state’s commitment to public education is a violation of federal law because it still falls short of the 1868 language, which says the state should operate a uniform school system.

What is at issue in the unique case is whether the state is in violation of the Mississippi Readmission Act of 1870 that was passed by the United States Congress after the Civil War. As a condition of readmission, the federal act, in part, prohibited Mississippi from making changes to its laws that lessened the guarantee of an equal or uniform school system, the lawsuit contends.

The lawsuit was filed by Will Bardwell of the Southern Poverty Law Center and others on behalf of a group of African American women who contend their children receive inferior education in majority African American schools than do students in other schools in the state.

Bardwell said the goal of the lawsuit is “to re-establish Mississippi’s obligation to maintaining a uniform school system and to hold the state accountable for not upholding that obligation.”

The lawsuit by the SLPC cited what it said were numerous examples where African American students still receive an inferior education in Mississippi. For instance, in the 2015-16 school year, of the 19 F rate school districts, 13 had a Black enrollment of more than 95% and all had enrollment of African Americans of at least 85%.

Colby Jordan, a spokesperson for Fitch, confirmed the attorney general intends to file “a writ of certiorari” asking the Supreme Court to review the case. Fitch and other state officials are asking the nation’s highest court to throw out the case after the full 5^th U.S. Circuit Court of Appeals, by a 9-8 vote, said earlier this month the case should be heard in federal court in the Southern District of Mississippi. District Judge William Barbour had earlier dismissed the case. When the case was first filed by the SPLC in 2017, the state moved to have it dismissed.

“At the end of the day, it should go without saying that education is of the utmost importance to all of the state defendants and the state’s citizenry,” the dismissal motion read. “And, of course there is always room for improvement in this area in the state of Mississippi. But the tactics utilized by the SPLC in this lawsuit are not, and could not be, the answer.

“Indeed, it is hard to imagine a more perverse request for intervention by the federal judiciary as the relief requested would serve to hold captive not only a sovereign state’s constitution, but also profound notions of federalism.”

Officials worry that if successful the lawsuit could result in the judiciary mandating the state provide more funds for education.

Court of Appeals Judge Edith Jones writing in the minority that the case should be dismissed, said what the SLPC “sought for judgment, in essence, would tell Mississippi what its state Constitution meant then and means now and would pave the way for federal court orders to effect a major restructuring of state school funding.”

Nearly all states have language in their constitutions expressing their responsibility to provide a public school system. The education language adopted by Mississippi in place of the 1868 language is a sort of roadmap detailing the state’s long struggle with the issue of race.

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 1978.

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 in 1960 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 giving legislators “the discretion” to operate a public school system was removed in 1987. The language now says the Legislature shall provide for a free public school system “upon such conditions and limitations as the Legislature may prescribe.”

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