One Judge in Jackson: A Southern Urban Legend

scaryIn the public debate over Initiative 42, one of the anti-42ers’ favorite talking points is the old “One Judge in Jackson” line. It’s colorful. It’s scary. It casts a dark shadow for lots of Mississippians who have real jobs to work and don’t have time to fact check every line coming out of Jackson’s anti-funding Machine. It goes like this: Initiative 42 will give us one judiciary official with absolute power over the schools! Or maybe 42 will unleash a flaming liberal hellbent on rewriting the Mississippi constitution! Or no wait, it was 42 will dissolve the legislative branch completely and give judges lifetime tenure! (I think that’s the latest one.) It really depends on which version of the “One Judge” urban legend you hear, and who’s telling it at the time. Fact is, these storytellers don’t have history on their side, so they have to dream up elaborate possible futures.

But what’s the truth? What are the facts behind the spooky judge rumored to haunt Hinds County funding decisions? Join me for a brief tour through the myths surrounding the “one judge in Jackson.”

MYTH #1: THE SECRET PURPOSE OF INITIATIVE 42 IS TO TRANSFER POWER

THE HYSTERIA:

Lobbyists within Team Status Quo have actually said 42 is not really about schools; it’s about stealing power from the Legislature. 

WHY IT’S FALSE:

To understand why people in their right minds would add “injunctive relief” as a constitutional provision for the schools, first it’s important to understand where we are now. What does the Mississippi constitution actually say about the government’s education obligations? And what does that mean for school funding at the present time? 

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As it is written, the Mississippi constitution only provides for free education. That’s it.  There’s nothing there guaranteeing its children adequate funding. This is a restriction considered weak by other states’ constitutional standards, and these are states we’re expected to compete with. Georgia and Florida already mandate “adequate” provisions for education. Arkansas and Kentucky mandate “efficient” schools.  Florida even goes a step further to demand “high quality” in their state constitution. But not us. Our schools are just free. And we’re arguing over whether they should be adequate.

In addition, because of that weak language, the Mississippi constitution provides no judicial remedy when the Legislature fails to fund education to the “adequate” amount prescribed by law. There are simply no checks and balances on the Legislature from the other branches. READ THIS CAREFULLY: Under Mississippi’s current constitution, no level of school funding can be declared unconstitutional- no matter how low- as long as the school is free to attend. The Legislature could simply shift the funding burden from Jackson to local municipalities- as they have continued to do– and there is currently nothing on the books to stop them. Or to make them answer publicly for it.

For a perfect example of this constitutional limitation, look no further than former Governor Musgrove’s lawsuit against the Legislature on behalf of underfunded schools. Musgrove claimed state law mandated adequate funding, but lost the case. Though Hinds County Judge William Singletary specifically stated he was sympathetic to the plaintiff’s case, the law didn’t have teeth enough to hold the Legislature accountable.

THE TRUTH:

The purpose of Initiative 42 is to secure adequate funding for Mississippi’s schools. In order to do that, there must be consequences when the Legislature fails.

MYTH #2: MISSISSIPPI DOESN’T NEED A JUDGE IN ORDER TO ACHIEVE ADEQUATE FUNDING

 

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THE HYSTERIA:

Opponents of Initiative 42 are quick to dismiss the necessity of going to the courts for a straightforward answer. They’d rather not hear it uttered out loud that the legislature actually broke the law. Or have it put down on public record so everyone can see. Instead, they encourage voters to take it upon themselves to punish legislators who break funding laws by voting them out secretly from the ballot box. The problem is this avoids setting any historical precedents we can learn from, and instead allows future generations to assume all our politicians always did the right thing.

But still some folks believe adequate funding is possible without a judge’s involvement.

WHY IT’S FALSE:

In short, this myth is wildly naive about how government actually works.

Without a court remedy, of course the ideal solution to our funding crisis would be to send brand new legislators to a morally upstanding state capital, completely cut off from the money and influence of lobbyists. There, tucked away from corruption, they would keep only our best interests at heart as they carefully considered what’s best for our kids. It’s a wonderful dream society. However, for the time being, we live in Mississippi. A recent study found our state is the most corrupt state in America. As idealistic on school funding as I am, I don’t think I would ask anyone to trust even ME to go fix the school funding crisis from inside the Capital City Machine.

But no, they’d like to continue breaking funding law as usual with us, the voters, as the sole party responsible for confronting them about it. Ok, for the sake of argument, let’s say we were all adequately informed on the intricacies of Mississippi funding law. Let’s say we all started casting our votes solely based on whether lawmakers broke said laws. Then, let’s say we committed ourselves- the entire state- to do this consistently for years and years until we rid ourselves of these bad apples. Ok. Say we do all that.  We STILL wouldn’t be able to control the culture in Jackson. We’d be installing a revolving door for the lobbyists’ consultations. 

No, new legislators haven’t fixed this problem the first two decades we’ve faced it, and they won’t in the next two, either. We need a new way to cut through the political bull, stop accepting lip service from law breakers, and firmly explain to our government officials what their first priority will be.  Initiative 42 does that.

THE TRUTH:

Making education funding our top priority statewide will require some sort of oversight for the Legislature. That’s just the reality of politics.

MYTH #3: INITIATIVE 42 CREATES NEW JUDICIARY POWERS

THE HYSTERIA:

The Initiative language says “with appropriate injunctive relief.” You know- as in a judge! And it would ADD that sentence to the constitution, where no injunctive relief currently exists! It must be that this will consolidate some sort of power the schools have in all the 82 counties, into one person in Hinds County!

WHY IT’S FALSE:

Bobby Harrison explained this in The Daily Journal in April way better than I could. Basically, the reason we’re talking about “one judge in Jackson” in the first place is because of Mississippi Code § 11-45-1. The state already mandates lawsuits against the state be heard by a Hinds County judge. The idea Initiative 42 seeks to make this happen is just plain wrong, because it has nothing to do with Initiative 42.

For the last 18 years, the legislature has been interpreting their own law as they wish. Initiative 42 includes “injunctive relief” so that Mississippi citizens have someone from the judicial branch interpret the law for once- you know- the branch that’s actually supposed to do that. Don’t fear the dreamed up scenarios the Machine wants you to imagine. Look to common sense. Look to recent history. Truth is, “one judge in Hinds County” has heard cases against the government for years.

THE TRUTH:

Initiative 42 creates no new judiciary powers.

MYTH #4: INITIATIVE 42 GIVES ONE JUDGE POWER OVER ALL THE SCHOOLS

 

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THE HYSTERIA:

There would be one judge hearing the case. That’s a fact! And it would be a case about statewide law, so it might affect all the schools!  Plus the ballot doesn’t say what “adequate” means, so that decision would be left up to whoever the judge is.

WHY IT’S FALSE:

First things first: Initiative 42 would not give a judge power over curriculum decisions, or power to underfund schools, or power to mandate tests.  Sure, you should worry about those things, but the scary power player you’re thinking of there is the Legislature. The judge in this case simply interprets whether the state has provided an efficient and adequate education.

It’s true: the ballot doesn’t contain a specific definition of “adequate.” Fact is, Initiative 42 doesn’t need one because we already have a working definition of adequate in current state law- the MAEP formula. It would be presumptuous and counterproductive to enshrine MAEP forever in the state constitution. Under the changes brought on by Initiative 42, adequacy will be required, but the judge will simply hold the Legislature to their own definition, which they will still have the power to redefine as needed. The writers of 42 didn’t include MAEP because they didn’t want to handcuff the Legislature to one formula forever.

What’s more, if you’re one of the many Mississippians who wish the Legislature would fix the formula, great! 42 will give them the push they need to reevaluate it. The consequence of appearing before a judge will force them to be efficient with our money.  Think of the Legislature like you would a teenager with a dirty car.  You can hem and haw and nag them to wash it, but it just never seems to get washed until it’s time for a date Saturday night.  Then it’s sparkling clean.  The Legislature will never fix the MAEP formula until they’re held accountable for actually using it.

THE TRUTH:

Initiative 42 gives the judicial branch the ability to enforce existing law. That’s it.

MYTH #5: MISSISSIPPI WILL BE OVERRUN BY A LIBERAL AGENDA

 

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THE HYSTERIA:

This would change the way things are now. Change is probably because of liberals. Liberals want other liberalistic things to happen, so they would probably cast one of their voodoo liberal spells over the bench and somehow use this funding law as a way to push a liberal agenda.

WHY IT’S FALSE:

Look to recent history to debunk this one. It was “one judge in Hinds County” who ruled against Musgrove and school funding this July. Turns out the one judge tends to act conservatively.

Plus, should a case be brought against the Legislature over school funding after Initiative 42 is passed, sure it’ll go the judge in Hinds County first.  But it almost certainly would be appealed. After an appeal, it’ll be nine justices the case goes to next- a conservative Supreme Court with a conservative track record of rulings in the past, who will interpret Mississippi law conservatively again. Initiative 42 will not magically turn the judicial system into a flaming torch for liberalism. The legal critics who say 42 is too vague have, in a sense, shown you why this myth is hyperbolic: there are no legal handcuffs anywhere in it. It provides for enforcement of existing law, but nothing more. To expect “shenanigans” from a judicial system as conservative as ours is quite frankly, silly. Mississippi, we’re being trolled by a political machine that wants no checks and balances.

THE TRUTH:

Mississippi is conservative and will continue to be conservative with or without Initiative 42.

THE REALITY…

Before you buy into the “one judge in Jackson” rhetoric, take the time to consider the facts- all the facts. Oh sure, imagine along with the horror movie fantasies of some sort of Mississippi gone wild, but after that, come back to reality. Come back to the Mississippi you actually live in.

And next time you think about all the lawmakers in Jackson declaring themselves fit to tell YOU whether they’re criminals or not, remember:

There are hundreds of politicians breaking the law, right now.

But without Initiative 42, there is no judge in Jackson.

19 Comments

  1. Becky Glover

    Outstanding writing, Mr. Comans! Absolutely outstanding! In the words of Gomer Pyle, “Thank you, thank you, thank you!!!”

    Reply
  2. Harry Bates

    Thank you, Mr. Comans, for putting your explanation in simple terms. Very enlightening.

    Reply
    1. jacomans (Post author)

      Thank you both for such kind words!

      Reply
  3. Jim Jones

    Jimbo thank you so much for continuing to drink whatever koolaid Milton Kuykendall is serving. We need to continue the fully funding of the district offices especially in desoto where there are 23 people who make 98,000 or more a year and where there are people with their GED making more than a teacher with a doctorate. Our teachers have the WORST salaries in the country but by all means please keep believing the district office who ranks 17th in the country. Research means finding out on your own, not repeating MK talking points.
    HEY KOOLAID
    MK “Ohhhh yeeeeah”

    Reply
    1. jacomans (Post author)

      I’m not familiar with the talking points you mentioned, but then again I don’t know Mr. Kuykendall that well. I make my own Kool-Aid. But if his Kool-Aid gets adequate funding to the many districts who aren’t as well off as Desoto, it sounds delicious!

      Reply
  4. Matt

    Well-written article. I am on the fence about this so a little more detail and context was helpful. Philosophically I’m against the trend toward increased centralization of power so I would be leaning toward opposing 42. Education funding sucking because legislators suck is not a reason to enshrine one particular funding arm in the constitution which I think may have far greater potential for negative economic consequences. It’s not that I disagree with the notion that school funding is a big problem, I just don’t know if this particular remedy to the problem is wise. Anyway, I’m still mulling that over. In the meantime my questions for you are a few. First, those states you mentioned that already have the language of adequate and efficient, Florida, Georgia, Kentucky, do they also specifically call for injunctive relief? If not, then that’s more an argument for alternative 42. Second, those states mostly also suck at public education, but maybe our incremental target is just to suck less–perfectly understandable. Next, if that Mississippi code you cited already provides for one judge in Jackson to preside over all lawsuits against the state then why do we need to add language about injunctive relief at all? Why not just add language about the funding being adequate and efficient and whatever other adjectives we want to imagine that a beaurocratic mess of a public school system can actually hope to produce and then the first day of school can serve as opportunity for any one of the millions of people who know that’s a farce can sue the state and a judge in Jackson will still be the one deciding whether the legislature met their New constitutional requirement. No injunctive language needed. Just wondering.

    Reply
    1. jacomans (Post author)

      You’re right, Matt. It is a bit different, but I don’t think it’s necessarily over the top.

      Obviously I didn’t write the language, and like you, I might have left off the “injunctive relief” part, but it might have something to do with the fact that the Mississippi legislature historically DOES NOT DO what’s politically inconvenient unless they are forced to. I tend to think the writers added that to point out that the legislature would be held accountable, not because it’s some kind of liberal commie plot, as the anti’s fantasize. If it’s a liberal commie plot, it’s not a very strong one. This would simply give the MAEP law teeth. Consequences for short changing.

      You know, I hear the “I’m not sure it’s exactly the right solution” a lot these days, and I would just ask you Matt: what is? What is a viable alternative that will end up with adequate funding going to our schools? It’s not the ballot decoy. That has no teeth. It’s certainly not placing our trust in the legislature 20 more years. They’ve proven they are not to be trusted.

      It’s like we’re waiting for superman to arrive. But 42 does what you want. It’s not going to empower some mythical judge. It just isn’t. Just my two cents.

      Reply
  5. Pingback: Mississippi Education Blog | Comans: Funding Initiative Not Perfect, But Worthy Still

  6. David

    The people I feel sorry for are the state employees and those who provide real services to the taxpayers who are going to get laid off when this funding takes place. The pot can be only so full so when you take this BIG chunk of money and give to the administrators, you’ve got to reduce other agencies budgets and that means people lose their jobs. No, I’m not drinking the koolaid of any party, just practicing the arithmetic I was taught in public schools by competent teachers who make way too little for what they do.

    Reply
    1. jacomans (Post author)

      David, I applaud you for drinking nobody’s koolaid, but I tend to disagree with that line of reasoning. One of the aspects of 42 that has perhaps not been well communicated (or maybe the misinformation machine is just successful at distorting) is its phase-in aspect.
      The whole idea of “dividing up of the pie” differently in an effort to fund MAEP all in one year was an introduction of Chairman Herb Frierson. But 42 has always been meant to be phased in as revenue grow, meaning no money has to come out of other pots. Of course that depends on Chairman Frierson doing his job correctly instead of trying to scare people, but I think once it passes and he faces reelection, he’ll do the right thing.

      Reply
  7. Vic

    Didn’t the legislature put nearly $300 million in the rainy day fund this past fiscal year with the goal of reaching the statutory limit for that fund? I’m for saving money, but if that’s the case, there seems to be money to fund education more effectively….so if anyone loses their job, it doesn’t seem like initiative 42 would be the cause.

    Reply
  8. Matt Wilson

    With respect, I think your analysis has a flaw.

    You write: “It’s true: the ballot doesn’t contain a specific definition of “adequate.” Fact is, Initiative 42 doesn’t need one because we already have a working definition of adequate in current state law- the MAEP formula. It would be presumptuous and counterproductive to enshrine MAEP forever in the state constitution. Under the changes brought on by Initiative 42, adequacy will be required, but the judge will simply hold the Legislature to their own definition, which they will still have the power to redefine as needed. The writers of 42 didn’t include MAEP because they didn’t want to handcuff the Legislature to one formula forever.”

    The problem with this analysis is that we are amending a constitutional provision. The constitution trumps statutes. So how can a statute like MAEP set the definitions for any term found in the constitution?

    Think of the First Amendment to the US Constitution. It describes how Congress shall make no law respecting an establishment of religion. OK. The word “establishment” is not defined. So following your logic, what if Congress were to define the term “establishment” to mean X? Wouldn’t Congress, in effect, be amending the Constitution without going through the appropriate steps? If so, Congress could simply obviate any restriction found in the First Amendment by redefining its terms as it sees fit.

    It appears that you are implying that MAEP (a statute) would set the definition for a constitutional provision (Initiative 42). Thus, you appear to be saying that the Legislature could effectively amend the Constitution — i.e., amend the definition of “adequate” by changing MAEP. With respect, that makes no sense.

    Second, look at the text of the existing Section 201 and compare it with the proposed changes. The existing section gives the Legislature the authority to set “conditions and limitations” upon the public schools. However, Initiative 42 omits the term “conditions and limitations.” Given that 42 makes no mention of the Legislature, given that it removes the “conditions and limitations” provision, and given that only the courts are mentioned in 42, then by what authority would the Legislature have to set standards for educational adequacy and efficiency in the first place if 42 is passed? By default, wouldn’t that pass to the Courts since they are the only branch of government mentioned in this amended section?

    Reply
    1. jacomans (Post author)

      To the first point, fair enough. Obviously you know more about the inner workings of law than I do. I would think there would be a difference between laws set up to execute what the constitution says to do, and laws set up to get around it. But at the heart of it, I just really can’t buy the argument that Initiative 42 is this terrifying, magical combination of words that will hold our conservative supreme court hostage to the whims of this mythical liberal judge. You look at the state constitutions of other states, and there are several- dozens, of other states with very similar wording. Adequate, efficient, etc., with no further definition of the words. The way those clauses seem to function in those states is that the legislature fulfills that obligation, and thereby satisfies the requirement. I think until we get to a point where we hold the legislature accountable for providing an adequate education that is the RIGHT of every child, we’re spinning our tires.

      To your second point, I suppose you’re familiar with the idea that the “State” is front and center in this thing- I know that was a freak-out of the week for some of the opposition at some point, and I do subscribe to the wacky idea that the Legislature could fulfill that role. I don’t think providing an adequate education should be up to “conditions and limitations” as set forth by the Legislature, as if our children ought to be granted an education as a privilege. I think they ought to do just like dozens of other states, and be required to fund the damn thing for every kid, and then we’ll see where we are.

      I have been open to other ways to get that done, but as the Legislature has abandoned even their own “solution,” I don’t see another one coming. You got one?

      Reply
      1. Matt Wilson

        The big difference between those constitutional provisions and Initiative 42 is that none — zip, zero, nada — of the other states’ constitutional provisions regarding education mention the judiciary, much less mention the judiciary to the complete exclusion of the Legislature. (Do a text search on that .pdf file you have linked. I couldn’t find the words “court” or “judicial” or “injunctive.” Maybe you will be able to.)

        Whereas the present Section 201 expressly gives the Legislature the power to establish, maintain, and support free public schools according to the conditions and limitations it chooses, Initiative 42 omits all references to the Legislature while doing something that no other state has done (i.e., it gives the courts the power to issue injunctions to enforce the constitutional provision.)

        Therefore, you are comparing apples to oranges when you look at the constitutions of other states. No other state (as far as my text editor can discern from the .pdf you have presented) gives the courts the power to issue injunctions to enforce these constitutional provisions. Therefore, it is possible, if not altogether likely, that the judges in these states have, out of respect for the separation of powers doctrine and the political question doctrine, deferred all questions relating to funding to their respective Legislatures since their respective constitutions give courts no express power to the contrary.

        However, if Initiative 42 is passed, the separation of powers doctrine in Mississippi would be compromised since education policies would no longer be questions strictly reserved to the Legislature. Therefore, a chancellor who is presented with a question about funding simply cannot pass on the question; he or she must rule. And when he or she does rule, the Chancellor will rule on everything presented to him. He will not rule by halves.

        Now you have said that providing a quality education should not be up to the “conditions and limitations” as set forth by the Legislature. OK, then, what do you call MAEP? Isn’t that statute a condition or limitation? Why is MAEP acceptable but other “conditions and limitations” are not? And if the Legislature shouldn’t place conditions and limitations on education, then who should? (If you are honest, and I believe you are, your answer certainly won’t be the governor, but will be the Courts.)

        Reply
        1. jacomans (Post author)

          I’m fine with injunctive relief from the courts. They’re not bogeymen. And the only way the “one judge”‘s opinion is final is if it makes literally everybody happy. It’s going to the Supreme Court and everyone knows it. I trust them.
          And as far as your interpretation of the effect of the language, ok. I tend to disagree flat out with the notion that it opens up matters of policy to a judge. It says nothing of the sort. But to each his own.

          If Initiative 42 fails, I’ll sign a petition to get your solution onto the next ballot available.

          Reply
          1. Matt Wilson

            Look at the 14th Amendment for a second. It was enacted to protect freed black slaves. 150 years later, its being used to create a constitutional right to gay marriage. Do you see anything in there about gay marriage — or marriage at all? Do you think the drafters could have anticipated it would be used to legalize men marrying men?

            My point is that there have always been, and there will always be legal realists on the bench who intend to exercise power with the stroke of a pen. I’m not saying that any judge on the bench now would do that, but what about 10 years from now. or 20 years from now?

            Yes, these things will go to the Supreme Court — which has 9 justices. And before it gets there it might reach the Court of Appeals first, which has 10 judges. That means no more than 20 people in the judiciary (assuming all cases are assigned to the same chancellor) will have any say in education. And you know as well as I do that their opinion will trump anything the Legislature says or does. So instead of having 174 legislators and 1 governor decide our policy, only 20 judges will. That is a concentration of power that would have made even Thomas Jefferson, the father of free public education, angry.

      2. Matt Wilson

        Now you asked for an alternate solution. OK….

        Keep Section 201 the same. Add the following text to Section 203:

        “(3) Notwithstanding anything found in Section 201, the State Board of Education shall present a budget for all public school districts in the State to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, the State Auditor, the State Treasurer, and the State Superintendent of Education on or before ____________ of each year. The Legislature shall have the authority to submit an alternative budget for each school district. Unless the Legislature enacts the alternative budget by 2/3 vote of each house on or before __________________ of each year, the State Auditor shall be required to direct the State Treasurer to issue a warrant on the State of Mississippi to fund the budget presented by the State Board of Education.”

        Reply
  9. Danny Lampley

    I hope this is not too disjointed or hard to follow; I’m having to hit it on the fly so to speak.

    On phrasing such as “adequate” or “effective”: this is not weird language at all. As noted, language like this, as well as “suitable”, “quality”, “duty”, etc., appears in many state constitutions. There is a whole body of case law built up over more than a hundred years, and probably nearer two hundred years, where courts have tackled the meaning of such terms. This is just the normal language one can expect to encounter when looking at what any state’s constitutional provisions has to say about education. Except in Mississippi.

    Of course, specific details such as a reference to the Mississippi Adequate Education Program are not in the language. That’s not how constitutions are written. Down the road we might revamp the thing and call it the Education for the 22nd Century Act (in 2135, because that’s how we do things here). Currently, the MAEP defines what we consider to be adequate, at least on paper, and subject to revision by the legislature. The amendment doesn’t change that because, to a point, such matters are within the legislative province. I don’t think we get to argue that these things are not in the proposed language while at the same time saying the courts will be permitted to invade the legislative function of the legislature.

    As indicated, there actually is historical and case precedent for determining such things as what is an “adequate” education. There is a floor below which what the Legislature says is “adequate” would in fact be clearly inadequate and a court could so find. But, in the absence of something ridiculous such as the Legislature defining adequate to mean $10 a head per year and y’all get the rest from the local communities, it is the soundest principles of separation of powers that leaves the specific manner of reaching a level of adequate — as well as leaves the determination even of what that means — first in the hands of the Legislature. If the Legislature departs from the common understanding to such a degree that it becomes unconstitutional, it is most emphatically the province of the judiciary to say so. Marbury v. Madison (1803).

    This is how it works in every other State on pretty much any issue, including education. For the most part it’s how it works in Mississippi, too — except for education. There, we amended our constitutional provision that once said:
    “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, as soon as practicable, to establish schools of higher grade.”;

    to this in 1960:
    “The Legislature may, in its discretion, provide for the maintenance and establishment of free public schools for all children between the ages of six (6) and twenty-one (21) years, by taxation or otherwise, and with such grades, as the legislature may prescribe.”
    We did this in order to give our Legislature the option to close all the public schools altogether rather than submit to desegregation. Racial hatred is the sole reason that, where for any other matters, both in our constitution and our statutes, things are determined along accepted rules regarding separation of powers and authority is divided across all three branches, but this is not the case for education where we have put it all in the hands of the Legislature — and 55 years later, here we are.

    We softened the language somewhat in 1987 to prescribe that:
    “The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe.”
    And this language, of course, illustrates the continuing problem of leaving the entire matter pretty much in the hands of the Legislature to do whatever they want without a check or balance from any other branch of government.

    The Legislature screams about a shift of power; well, I suppose it actually is just that; but it is a restoration of a proper balance of powers, a reestablishment of checks and balances that the doctrine of separation of powers requires, and certainly not an “attack on representative democracy” as some would have it. The Legislature forgets that it is only one of three co-equal branches, and that none of these three branches has any power that we the people don’t delegate to it through our working orders, the Mississippi Constitution.

    The idea that courts in other States have deferred all questions of funding to their respective legislatures couldn’t be farther from the truth. This has not been the case even in Mississippi, especially under previous stronger versions of Section 201 before we stripped the courts of power over the question in 1960. A quick Google search will turn up a raft of school funding cases where the courts have accepted their obligation as a co-equal branch of government just as entitled to exercise their powers as any executive or legislative branch.

    One thing the Legislature — and I think many others — misses is that there really isn’t anything stopping a lawsuit now. Especially one claiming that what is provided for education in Mississippi is in fact inadequate and thus a violation of equal protection. If I had the task of drafting the proposed amendment I probably would not have put in the language about the injunctive relief because it isn’t necessary. This is a power the chancery courts have anyway. Whether it’s there or not, the judiciary is the responsible party for interpreting constitutional provisions and determining whether other branches are violating. Or, as I previously noted, at least that’s how it works everywhere else on everything else, and on most things in Mississippi. Except for education. To a point. And one I think we’ve reached.

    Generally, even now, it is the chancery courts who deal with minors’ matters and education; with or without the constitutional amendment. From this understanding it makes sense to place the subject matter jurisdiction with the chancery courts. There is nothing unusual in that as a quick perusal of our constitution will show that we’ve similarly apportioned jurisdiction amongst the courts on any number of matters. The problem sought to be solved by the amendment is that while a chancery court now can order a school to reinstate a child who has been illegally expelled; or, I would think, could actually rule that a particular plaintiff’s child has been personally deprived of some educational benefit and a specific school district must fix it; as long as the constitution lets the Legislature do what it wants under such terms and conditions as it prescribes there’s not much of a remedy on a system-wide basis. Except, by striking down the entirety of the educational funding system as violative of equal protection.

    The Legislature is really being quite short-sighted in its opposition to the amendment. They have forgotten why MAEP was passed in the first place. It was to prevent a full-on equity funding lawsuit. While this amendment simply does not enhance the possibility of such a suit (because really the smart play first is to try to force funding as already set out in MAEP, i.e., a different suit for injunctive relief if the Legislature continues to resist adequately funding the schools); it certainly could serve to inhibit such a suit to some degree. What the Legislature is not getting is that after having passed MAEP to avoid such a suit, and having milked it for all it’s worth for the last 18 years, their time has run out. Passage of the amendment will for a time give the Legislature the opportunity to once and for all get this problem fixed, or at the very least string it out a bit more as they pretend to care about the problem and make motions that appear to be an effort to do something about it. In other words, the amendment for a while will help them kick the can down the road if that’s what they choose.

    If the amendment fails; well, that’s it; their time is up. There will be an equity funding lawsuit. Those of us who are just fed up with this farce will know there’s nothing left for it but to file the big one; where part of the claim will be that Section 201 is unconstitutional as racially motivated; its effects have led to clear demonstrable disparities; that this is in effect Brown v. Board of Education (Redux); that MAEP was never adequate anyway and ought to be struck down along with the entirety of Mississippi’s funding mechanism as in fact inadequate, a violation of equal protection, and a violation of a substantive due process right to an education that both Mississippi state and federal courts have said is in fact already a constitutional right.

    The Legislature and opponents of Initiative 42 have played a dirty game in an effort to hold on to a little power — that should never have been given them in the first place — and they’ve done it without taking into account the fact that they stand to lose nearly all the power if a federal judge gets involved. They are not seeing that this can happen no matter if the amendment passes or fails. Nor do they see that the amendment actually provides the Legislature a path to assume the necessary authority, and the political cover (sorry folks we have to ’cause it’s in the constitution), to once and for all properly fund our schools. They are truly being blind about this.

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