Clarion Ledger

Opinion: Mississippi’s 1890 Constitution Should Not Discriminate Against Private Schools, Attorney Says

October 3, 2023

(Clarion Ledger)—In the aftermath of the COVID-19 pandemic, much has been discussed about the tremendous learning loss that students all across the country experienced.

When schools closed their doors and navigated the uncharted waters of virtual learning, it negatively impacted the ability of students to connect with their peers, their teachers, and their subject matter.

While government-funded schools remained shuttered, private schools reopened with swiftness and agility that allowed their students to return to campus and regain a sense of normalcy.

However, more than three years later, these same private schools are being discriminated against because a Mississippi court said the state’s 1890 Constitution does not allow Mississippi to give federal funds to private K-12 educational institutions.

The Midsouth Association of Independent Schools represents dozens of private schools serving thousands of students across Mississippi. In June 2022, opponents of private education declared that $10 million in federal COVID-19 relief funds allocated by the Mississippi Legislature to MAIS-affiliated private schools were unconstitutional and therefore could not be distributed to those schools.

In an effort to prevent these schools from receiving up to $100,000 per school for their infrastructure, opponents argued that the Blaine Amendment of the Mississippi Constitution prevents federal taxpayer dollars from going to religious or non-public schools that are not “free.”

Blaine Amendments — like Mississippi’s — have a sordid past and were enacted into law and made part of some state constitutions after the Civil War because of racial prejudice against immigrant Catholics and newly freed slaves and the schools that dared to serve them in the Reconstruction period.

In other words, Mississippi’s Blaine Amendment that is being used as a sword to prevent MAIS’s private schools from receiving federal funds was born of bigotry and arose at a time of pervasive hostility to the Catholic Church and to Catholics in general. The United States Supreme Court has struck down these Blaine Amendments in various cases, but they remain on the books in some states like Mississippi.

The Liberty Justice Center is representing MAIS on appeal from the injunction that prevents its private member schools from receiving federal money they are lawfully entitled to receive. The Mississippi Supreme Court will schedule an oral argument following late September briefings. In the meantime, MAIS’s-affiliated private schools are prevented from accessing the federal funds specifically earmarked for them by the Mississippi Legislature. Can the Legislature act without a court decision?

COVID-19 relief funds that were allocated to Mississippi and earmarked by the state Legislature are not beholden to the same litmus test as funds originating from within the state. Much like dozens of other states that have already distributed federal funds to private schools, Mississippi has an obligation to release the funding allocated to private education.

And it may not hide behind its unconstitutional Blaine Amendment. Mississippi has slowly made progress from its discriminatory past in 1890 when it enacted its Blaine Amendment, through the turbulent Civil Rights era to the modern day. But more progress and common sense are greatly needed. It goes without saying that these private schools — and moreover, the students they serve — should not be discriminated against.

Buck Dougherty is Senior Counsel at the Liberty Justice Center and is representing the Midsouth Association of Independent Schools in the ongoing Parents for Public Schools v. Mississippi Department of Finance and Administration case.