Private schools in Mississippi could receive $10 million in public COVID relief funds if the Mississippi Supreme Court agrees with Attorney General Lynn Fitch in her appeal this year. Mississippi’s high court has set Feb. 6, 2024, as the date to hear oral arguments in the appeal of a Hinds County chancery court judge’s October 2022 ruling against the transfer of taxpayer dollars to tuition-based schools.

The federal government allocated the state $1.8 billion through the American Rescue Plan Act in the wake of COVID-19. In 2022, the Mississippi Legislature appropriated $10 million of those public dollars exclusively to in-state, independent schools for water, broadband and other infrastructure projects. 

Gov. Tate Reeves signed the two related bills, Senate Bill 2780 and Senate Bill 3064, in April 2022. One created the Independent Schools Infrastructure Grant Program to help private schools pay for water, broadband and other infrastructure projects—all of which many public districts and schools in Mississippi struggle to afford. The second bill provided the money for the program under the oversight of the Mississippi Department of Finance and Administration. 

The American Civil Liberties Union of Mississippi, Mississippi Center for Justice and Democracy Forward filed a lawsuit on behalf of Parents for Public Schools Inc. in June 2022 claiming that the state Constitution prohibits using public funds for private schools. The lawsuit filed in the chancery court of Hinds County, Miss., claimed that the Mississippi Legislature violated Section 208 of the Mississippi Constitution with the appropriation. 

Section 208 reads, “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.” 

Many of the same private schools that could benefit from the $10 million have been on the losing end of lawsuits in past decades over the transfer of public dollars to whites-only schools originally set up as segregation academies or those that promote a particular religion. 

Will Bardwell, senior counsel at Democracy Forward and lead attorney for Parents for Public Schools, said the state’s appeal claims that the Mississippi Legislature did not appropriate the money to private schools but appropriated it to the Mississippi Department of Finance and Administration, who would oversee the grant. 

“Regardless of whether it’s the Legislature sending the funds or a state agency sending the funds, you’ve still got public money going into private schools, which is a violation of Section 208,” Bardwell said. “That’s exactly what Section 208 forbids.”

In October 2022, Hinds County Chancery Court Judge Crystal Wise Martin ruled that the appropriation was unconstitutional, citing that the funding offers a legislative advantage for private schools to the detriment of public schools.  

“When public schools have been chronically underfunded, the prescribed unavailability of these public infrastructure funds adversely affects Mississippi public schools, their employees, their students, and the parents of those students differently from the general public,” Martin wrote in Thursday’s ruling. 

“Infrastructure funding for private schools and only private schools injures public schools and their students by legislating a competitive advantage for private schools to the detriment of public schools,” she continued. “It is common sense that private schools compete with public schools for students.”

Martin’s ruling barred the state from distributing the money. Legislators reallocated the funds during the 2023 legislative session. Bardwell says that the state’s history of school funding is problematic.

“Mississippi public schools are already underfunded enough,” Bardwell said. “We have a pretty bad record in this state of supporting public schools the way they deserve to be supported, and to be sending millions of dollars to private schools when we’re not even funding our public schools the way they’re supposed to be funded is outrageous.”

In addition, many private academies in Mississippi still have overwhelmingly white student bodies, even many in majority-Black towns and counties.

Attorney General Lynn Fitch appealed the ruling in May, arguing that Parents for Public Schools does not have a legal standing to challenge the constitutionality of the allocation. The brief states that the grant does not negatively affect Mississippi public schools because they have already received billions of ARPA funds and other federal COVID-19 recovery money. The appeal also argues that the money was federal disaster-aid funding and not state public education dollars.

The Midsouth Association of Schools will also present its case during the oral arguments. Judge Martin denied the organization’s motion to intervene. The Liberty Justice Center is representing MAIS in its appeal of the lower court’s ruling. Senior Counsel Buck Dougherty said that it is unfair for MAIS to be sidelined in the case while Parents for Public Schools argues that they should not have the funds.

“We came in because obviously MAIS was expressly mentioned in the legislation itself,” Dougherty told the Mississippi Free Press on Dec. 20. “We had a stake. We had an interest, and so we attempted to intervene which was appropriate as the defendant. … It’s highly unusual for someone like MAIS to be expressly named in legislation like this and then not be allowed to intervene.”

The motion argues that the Blaine Amendment, which is part of Mississippi’s constitution that goes back to 1890, is unconstitutional. The Blaine Amendments are provisions in state constitutions that restrict the use of public funds to support private religious schools. (Most original segregation academies in Mississippi later rebranded fully as Christian academies.) Many argue that these amendments arose from post-Reconstruction Catholic bias. Attorneys across the country have argued their legitimacy in state courts.

“Our argument is that (the) constitutional provision from 1890 violates the federal constitution so MAIS does get the $10 million,” Dougherty said. “There’s been a Supreme Court case recently, where … the Blaine Amendment was ruled unconstitutional.”

The ruling could have deeper implications for school choice and education funding in the state. In recent years, state lawmakers have increased conversations surrounding school-voucher programs. A ruling in favor of the state could open the door for the appropriation of state education dollars for institutional aid to non-public schools. The state Constitution does not prevent the state from providing individual aid to students for tuition at non-public schools. The state has already approved Educational Scholarship Vouchers, which allow Mississippi parents to use state funds to pay private school tuition for children with special needs. 

“School choice is a big push around the country in Tennessee in some other states,” Dougherty said. “This ruling could kind of pave the way for more legislation in Mississippi for advancing school choice. Whether it’s through charter schools, vouchers, school choice (or) ESA. They’re all kinds of different ways to have education for freedom and then school choice.”

The voucher movement started in Mississippi in the early 1960s when the then-all-white Legislature approved the use of tuition vouchers for white families to move their children to private segregation academies in the wake of Brown vs. Board of Education. That movement was also called “school choice,” a phrase still used today by those who support allowing public dollars to be used for private education.

Bardwell said the measures Dougherty listed could prove to be detrimental to public education in the state making the ruling in this case an important one. 

“This case is more important than just this $10-million appropriation,” Bardwell said. “The state constitution is unambiguous. It forbids sending any funds to private schools, whether you’re talking about $10 million or $10. If that limit doesn’t exist, then there’s nothing to prevent the Legislature from sending $100 million to private schools. There’s nothing to prevent the Legislature from paying every private-school student’s tuition throughout the state.”