The lawsuit, filed last week in federal court in the Southern District of Mississippi, is not seeking any money, but is simply asking the courts to restore the commitment to public education that the state made in 1868.
The much ballyhooed Initiative 42 also wanted to change the wording of Section 201 of the Mississippi Constitution, like Bardwell lawsuit attempts to do, to enhance the state’s public education commitment.
But the state’s Republican leadership, led by Gov. Phil Bryant, Lt. Gov. Tate Reeves and House Speaker Philip Gunn, pulled out all the stops, waging an all-out campaign to defeat the citizen-sponsored Initiative 42. The political leadership prevailed in the November 2015 general by a narrow margin of 354,212 votes to not change the state’s constitutional commitment to public education to 331,213 votes to strengthen that commitment.
Sponsors of Initiative 42 said the change was needed because the current commitment to public education in the Mississippi Constitution is among the weakest – if not the weakest – in the nation.
But Gunn, Bryant and Reeves argued such a commitment might lead to the courts possibly requiring more funding for education than they thought was appropriate and perhaps more than the state could afford.
As it turns out, the Mississippi’s 1868 Constitution had a much stronger commitment to public education than what’s currently in place. And the federal law that re-admitted Mississippi into the Union in 1870 after the Civil War prohibited that language from being amended “to deprive any citizens or class of citizen…the school rights and privileges secured” by the 1868 Mississippi Constitution.
That language is the crux of the Southern Poverty Law Center lawsuit. Bardwell pointed out that when the Constitution was rewritten in 1890 that language was weakened, including a provision establishing racially separate school systems. It was weakened again in the 1930s and in 1960 new language was astonishingly approved by Mississippi voters giving the Legislature the option to abolish the public schools rather than to be forced to integrate them.
Since the 1960s, to the credit of the Legislature and voters, there have been two constitutional changes that enhanced Mississippi’s commitment to public education.
In the 1980s, voters approved an amendment to remove the separate but equal language. In addition, voters adopted an amendment that mandated the Legislature to operate a system of public schools, though, some, such as the Initiative 42 supporters and Bardwell, maintain that the language sets a very low bar for the quality of the public schools.
The Southern Poverty lawsuit was filed on behalf of four black parents whose children attend majority African American schools. The lawsuit contends that Mississippi public school system disproportionately harms majority African American school districts that are poorer and have less resources, but in reality harms all public schools
The commitment put forth in the 1868 Constitution that was protected by federal law re-admitting Mississippi to the Union would force the state’s policymakers to make more of a commitment to public education, the lawsuit maintains.
It should be pointed out that the state’s leaders would maintain that education already is their priority.
At any rate, the Southern Poverty Law Center lawsuit is a long shot at best. But if Bardwell prevails, he would do in the courts what the Initiative 42 advocates failed to do at the ballot box.
Of course, Mississippi has a long history of not making changes until forced to by the courts.
BOBBY HARRISON is the Daily Journal’s Capitol correspondent. Readers can contact him at (601) 946-9939.