Attorneys for public school advocates said in oral arguments Tuesday before the Mississippi Supreme Court that the state constitutional provision that prevents public funds from going to private schools is “ironclad.”

Attorneys Rob McDuff and Will Bardwell, representing Parents for Public Schools, said at the time of the writing of the 1890 Mississippi Constitution that public funds were being spent on private schools and the framers of the constitution sought to prevent that from occurring. Section 208 of the constitution says, in part, that public funds shall not be provided to any school “not conducted as a free school.”

The Parents for Public Schools organization filed a lawsuit in 2022 challenging the constitutionality of a $10 million state legislative appropriation made to the Midsouth Association of Independents Schools.

“Section 208 expresses a simple principle: public money shall go to public schools,” McDuff told a three-justice panel of the nine-member Supreme Court on Tuesday.

Only justices Leslie King of the Central District, Robert Chamberlin of the Northern District and David Ishee of the Southern District heard the oral arguments, though it is possible that all nine justices will rule on the issue. The case was appealed to the Supreme Court by state Attorney General Lynn Fitch after Hinds County Chancellor Crystal Wise Mastin ruled the Legislature’s action was unconstitutional.

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Justin Matheny of the Attorney General’s Office argued Tuesday that it was OK for the Legislature to appropriate the money to the state’s private schools for infrastructure repairs because the funds were not state money but were part of the more than $1 billion in federal funds provided to the state for COVID-19 relief.

Additionally, Matheny pointed out the funds were not directly appropriated to the private schools by the Legislature, but to the state Department of Finance and Administration with the instruction to send the money to the private schools in the form of grants. King of the Central District, who presided over the three-justice panel, told Matheny that it was the custom of the Legislature to appropriate most funds to state agencies with instructions to provide the money to the entity that the Legislature intended to receive the funds.

Matheny also argued that the Parents for Public Schools was not directly harmed by the Legislature’s action so the advocacy group did not have standing to bring the case. Bardwell argued that the group as taxpayers, including taxpaying parents of public school students, did have standing.

King asked Matheny if he was arguing that sometimes there is no one with standing to file a lawsuit challenging a legislative action as unconstitutional.

Matheny replied, “It is possible and it should not bother anyone” since no one was harmed by the legislative action. He said the appropriated money was not state funds reserved for public schools, so no one was harmed.

Chamberlin then posed a hypothetical to McDuff: If Congress earmarked money specifically for private schools, would the Mississippi Legislature be able to appropriate it to the private schools then? McDuff replied the Legislature would not under Section 208 of the state constitution. Of course, under Chamberlin’s hypothetical, Congress could bypass the Legislature and send money directly to the private schools just as it did to public schools as part of some of the COVID-19 relief funds.

PODCAST: Will Mississippi Supreme Court stop public funds from going to private schools?

The money the Legislature appropriated to the private schools in 2022 was part of a pot of federal discretionary funds that were sent to the states to be used in numerous areas, including on infrastructure improvements. But since the money was public, Bardwell and McDuff argued, in Mississippi it could not go to private schools.

Buck Dougherty of the Liberty Justice Center argued that the private schools should be allowed to intervene in the case. The private schools were not allowed to intervene in the lower Hinds County Chancery Court. Martin, the judge in the original case, ruled that the request to intervene was made too late.

In addition, Dougherty argued that Section 208 of the state constitution violates the U.S. Constitution. He said that constitutional provisions in various states prohibiting public money from going to private religious schools have been ruled as unconstitutional by the U.S. Supreme Court.

But Bardwell pointed out that the issue is not public money going to religious schools.

He said the U.S. Supreme Court has ruled repeatedly that “the state is not obligated to fund private schools.” But if a state is providing funds to a private school, it cannot discriminate against religious schools. The key difference, Bardwell said, is that Mississippi Constitution’s Section 208 prohibited public funds from going to all private schools.

Numerous people on both sides of the issue attended the Tuesday oral arguments in downtown Jackson.

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