FROM MISSISSIPPI CENTER FOR PUBLIC POLICY:
Initiative 42: Proposed Constitutional Amendment Regarding Public Schools
Proponents of a state Constitutional amendment related to public schools have obtained enough signatures to place the amendment, known as Initiative 42, on the November 2015 election ballot in Mississippi. In the upcoming legislative session, which begins January 6, the legislature will have an opportunity to express its agreement or disagreement with the amendment but cannot keep it from appearing on the ballot in November. The legislature also has the option of passing an alternative that would appear on the same November ballot.
Mississippi Center for Public Policy is not taking a position in favor of or in opposition to the amendment. However, we will provide analysis so that voters know what they are being asked to vote on. After we posted our initial analysis on our website, a group known as Better Schools Better Jobs (BSBJ), which is the primary organization supporting the Initiative, posted our analysis on their website, along with their response. We welcome the discussion and have included their response – and our analysis of their response – below.
Initiative 42 would make the following changes to the Mississippi Constitution (proposed additions are underlined, and deletions are shown as strike-through text):
SECTION 201. To protect each child’s fundamental right to educational opportunity, The Legislature the State shall, by general law, provide for the establishment, maintenance and support of an adequate and efficient system of free public schools upon such conditions and limitations as the Legislature may provide. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.
The actual Constitutional amendment, shown above, will not appear on the ballot. Only the following question will appear:
“Should the state be required to provide for the establishment, maintenance and support of an adequate and efficient system of free public schools?”
1. Does the Amendment Address School Funding?
MCPP Original Analysis. This amendment says nothing about funding. While the phrase, “establishment, maintenance and support” could be construed to be related to funding, that phrase is already in the Constitution. This amendment does not propose to change that phrase.
BSBJ Response: The amendment says that the State of Mississippi is responsible for the “…maintenance and support of an adequate and efficient system of free public schools.” Clearly, the words “maintenance and support” mean funding. The more important word, however, is “adequate.” Contrary to every other state in the U.S., Mississippi’s Constitution currently does not require that children be provided an adequate education, only a free one. The amendment states that our children should be provided at least an adequate education. The amendment leaves it up to the legislature to determine how it will establish, maintain and support an adequate and efficient system of public education, but it requires the legislature to provide support (funding) for an adequate education.
MCPP Analysis of BSBJ Response: Point well taken with regard to whether the amendment relates to funding. We appreciate BSBJ’s pointing this out, since our goal is not to tell people whether they should support or oppose the Initiative; our goal is to ensure that the public has an accurate description of what they will be asked to vote on. We said the maintenance and support phrase “could be construed” as being related to funding, which is true, but as a practical matter, it is more accurate to say this phrase is generally construed by courts to be related to funding.
However, BSBJ’s statement that the Constitutions of “every other state in the U.S.” require “adequate” funding is simply not accurate. A number of states do not have such a requirement in their Constitution.
Most importantly, it is difficult to understand BSBJ’s contention that the legislature would retain any authority over the amount or use of school funding. In three places, the proposed Constitutional amendment deletes references to the legislature and/or its authority over the educational system. It then adds a provision giving power of enforcement to courts. Here is the relevant wording (proposed deletions are struck through, and additions are underlined): “The Legislature State shall, by general law, provide for the establishment, maintenance and support of an adequate and efficient system of free public schools upon such conditions and limitations as the Legislature may provide. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.” For more on this point, see questions 3 and 5 below.
2. What Court Would Have Jurisdiction, and Why Does That Matter?
MCPP Original Analysis. The last sentence in the amendment gives the power to “the chancery courts of this state.” Because the State of Mississippi would be the defendant in any lawsuit filed to enforce this section of the Constitution, the lawsuit would have to be filed in Hinds County Chancery Court. There are four Hinds County Chancery Judges, each of whom is elected only by the citizens of a district of the county. One of these judges would be assigned to hear the case, meaning a judge from the Jackson area, who is elected by a small number of people in Hinds County, would have full authority to decide not only how much money is sufficient but how the money is to be spent. The legislature would have no ability to limit the impact of the judge’s rulings (see #3).
BSBJ Response: Chancery courts are specified in order to prevent lawsuits for damages. Chancery courts would have the power to enforce the law to adequately fund public schools. A court ruling would simply require the legislature to follow the law and the Constitution.
Under current law, venue for a lawsuit against the State of Mississippi is in Jackson, the state capital, which is in Hinds County. The legislature could pass legislation establishing chancery court venue where the school district is located. In other words, if the legislature does not want to be sued in a Hinds County Chancery Court, it could change that by statute.
MCPP Analysis of BSBJ Response: BSBJ’s statement about whether a lawsuit in chancery court can include damages is not accurate. For example, the state’s lawsuit against the tobacco industry was filed in chancery court and most certainly included damages. The current Musgrove lawsuit regarding MAEP, which asks for damages, was filed in chancery court. The amendment is not worded in a way that would “prevent lawsuits for damages,” as BSBJ asserts.
It is true that a change of venue could be accomplished by a change in law, but our point is not that the venue is Hinds County per se; venue could be changed to any county, and our point would be the same: one judge, elected by the people in one district, would have the power to set education policy and funding for the entire state.
3. Would There Be Limits on the Judge’s Decisions?
MCPP Original Analysis. The amendment places no limits on the Hinds County judge who hears such a lawsuit. The judge could, as the initiative’s proponents seem to anticipate, require the legislature to “fully fund” the MAEP formula and to phase-in the increased funding over seven years. However, the judge could also choose to require the legislature to double, or even triple, the MAEP funding. The judge could also decide that high-performing districts are getting enough from the state and order the state to give any “new” money to low-performing districts until they catch up. Furthermore, because the amendment does not limit the judge’s reach, and because it gives the judge jurisdiction over a “system” of schools, he or she would have full authority to dictate to the state department of education and local school districts exactly how the money should be spent at the state and local level.
BSBJ Response: Clearly, opponents of the amendment seem to believe that their best option for defeating it is fear-mongering about chancery judges in Hinds County. The powers of these judges are limited and checked by the Constitution itself. Either party in a suit can request that the case be heard by a jury. The bottom line is that a lawsuit would be necessary only if the legislature ignores the law and the Constitution, thwarting the will of Mississippi voters regarding public school funding.
The court’s decision would have to be based on the facts presented by each side. The chancery court ruling can be appealed to the Mississippi Supreme Court for a final ruling. This procedure is current law. A chancery court makes the final decision only if there is no appeal, which is highly unlikely, and as stated in #2 above, the legislature can change the lawsuit location to a county other than Hinds.
MCPP Analysis of BSBJ Response: There’s no fear-mongering. It’s simply the truth. BSBJ offers no dispute as to the potential outcomes we listed. We aren’t predicting a judge would rule in these ways, but he or she certainly could do so, since there are no limitations on the judge in this amendment. Furthermore, current Hinds County judges might not rule in these ways, but there is nothing to prevent a judge 10 or 20 years from now ruling in a way BSBJ doesn’t anticipate right now.
Jury trials can only be requested in chancery court for contested wills, not for cases such as those that would seek to enforce this Constitutional amendment. Furthermore, the Supreme Court is somewhat limited in its power to overrule decisions from a Chancery Court.
4. Would Taxes Increases, or Budget Cuts to Other Agencies, be Necessary?
MCPP Original Analysis. The amendment makes no mention of a phase-in or any other timing. A lawsuit could be filed immediately after the amendment is adopted, and a ruling could come in the first year following its passage, requiring the legislature to adopt whatever budget is dictated by the judge. This would require drastic cuts to all other government agencies, or it would require a tax increase. Our state Constitution prohibits judges from ordering a tax increase at any level of government, but a mandated spending increase could, in effect, require a tax increase if cutting all other programs proved to be politically impossible. It is estimated that all agencies other than the Department of Education would have to be cut about 17 percent, and that’s only if the judge orders “full funding” of the current MAEP formula. Those cuts would include IHL, Community Colleges, Medicaid, Corrections, and virtually everything else. If any of those were excluded from the cuts, then other agencies would be cut more deeply.
BSBJ Response: This claim is meant to mislead people about the amendment process. The petition that has been signed by more than 188,000 Mississippians includes a full description of the process. The legislature will continue to have 100% discretion on how it will fully fund our K-12 schools. Under the ballot’s financial proposal, any increases in school funding would be wholly dependent upon state revenue increases. In any year when revenue increases, not less than 25 percent of that increase would be devoted to public education. This process would continue, every year the state has revenue increases, until school funding reaches an adequate level. At the current trend of 3 percent annual revenue growth, adequate school funding would be reached in seven years. NO tax increases, NO automatic cuts for other agencies.
MCPP Analysis of BSBJ Response: Our claim is not misleading; it simply recognizes that the Constitutional amendment itself – not what was written on a petition – is the only thing that matters. The “full description” in the petition was simply an idea of the proponents for how the process could work, but this description has no force of law. Even the BSBJ response above refers to it as a “financial proposal,” and in the petition filed by the proponents, they called this proposal a “recommendation.” The people of Mississippi will not be voting to approve this proposal/recommendation. They will only be voting on the amendment itself.
Actually, voters will not even see the amendment they will be voting on. On the ballot will be a question that is supposed to describe the amendment, but it basically asks the equivalent of, “Do you love your mother?” What voters will actually see is the question, “Should the state be required to provide for the establishment, maintenance and support of an adequate and efficient system of free public schools?” Regardless of the merits of the amendment, this question does not adequately describe its effects.
BSBJ’s contention that the legislature would retain “100 percent discretion” is addressed in items 1 & 5.
5. What Would Be Left of the Legislature’s Role?
MCPP Original Analysis. The proposed amendment – in three places – deletes the authority of the legislature to determine any aspect of education policy or funding. This is critically important, because state and federal courts generally determine the will of the voters by noticing the words that were deleted by a Constitutional amendment as well as the words that were added. Education would no longer be ruled “by general law” passed by the legislature and signed by the governor, and the legislature would no longer be allowed to place “conditions and limitations” on the funding or performance of public schools. In other words, a Hinds County judge, elected by a few, would have more power than the legislature, elected by all the people of the state, to set education policy for Mississippi.
BSBJ Response: This amendment does not delete the authority of the legislature to determine any aspect of education policy or funding. It says nothing about education policy. Similar to what is already in place in many other states, the amendment says only that the state must have an adequate and efficient system of public education for our children. The legislature has the power and authority to determine what is adequate and efficient. Under our checks and balances system of government, if the legislature does not meet its Constitutional mandate, then the citizens of this state have the opportunity to ask a court whether or not the legislature has met its Constitutional mandate.
MCPP Analysis of BSBJ Response: [See our “Analysis of BSBJ Response” on question 1, where we show the words that would be deleted from the Constitution.] Attorney General Jim Hood, in a memorandum supporting his motion to dismiss the Musgrove MAEP lawsuit, noted that Section 201 of the Constitution (which Initiative 42 proposes to amend) “empowers the legislature to establish the ‘conditions and limitations’ under which public schools operate.” If the legislature, as shown in question 1 above, is deleted from that section of the Constitution, where does it derive any authority over school funding? As we pointed out originally, when words are deleted from the Constitution, courts consider such an action as the intentional will of the voters. In this case, courts are highly likely to determine that the voters sought to remove the legislature’s power to set conditions and limitations on how the education bureaucracy spends money.
BSBJ asserts that the amendment “says nothing about education policy.” But when the legislature is prohibited from setting “conditions and limitations” on the “system of free public schools” or its funding, the amendment does say something about education policy by dictating who has authority over it.
