June 2, 2017

Private: Reforming Modern Education in Mississippi by Reviving an Old Constitution

LaJuana Davis, Mississippi

by LaJuana Davis, Professor of Law, Samford University Cumberland School of Law

Four mothers of Mississippi schoolchildren filed a federal civil rights lawsuit last week charging the state has failed to provide for public education under the requirements of an 1870 law that set conditions of the state’s readmission to the Union following the Civil War. The suit’s plaintiffs, represented by the Southern Poverty Law Center (SPLC), have asked the court to void amendments to the state’s education article enacted after Reconstruction and restore education rights guaranteed under the 1868 constitution. Specifically, the suit claims that the state violated the Congressional Act of 1870 that conditioned Mississippi’s readmission to the Union on the state agreeing to never deprive its citizens of “school rights and privileges” secured by the 1868 state constitution. However, the complaint alleges, subsequent amendments to those school guarantees have resulted in a minimalist education clause that simply allows the legislature discretion to provide for whatever public school education that the legislature sees fit.

The suit’s lead defendant, Mississippi Gov. Phil Bryant, responded in a statement that the suit was simply a fundraising attempt by SPLC “on the backs of Mississippi taxpayers.” While Gov. Bryant may be irritated by the second challenge to Mississippi’s education scheme brought by SPLC in a year, Mississippi has had far fewer education adequacy lawsuits than most states, largely due to the minimal standard of education that its state constitution requires.

Because Mississippi’s education clause requires no particular standard of education to be provided, the plaintiffs claim that some schoolchildren are learning in overcrowded classes   taught by inexperienced teachers and that those children have access to fewer educational resources and opportunities than students in other school districts. Most of the inequalities are being shouldered by majority-Black school districts, which may be affecting their students’ academic achievement.

At the center of the lawsuit is the state’s duty to provide public education in the Mississippi Constitution of 1868. As part of readmitting former Confederate states after the Civil War, Congress passed readmission acts, requiring those states to draft new constitutions guaranteeing newly-freed slaves the right to vote, and in Mississippi’s case, the right to education. Mississippi’s Reconstruction government complied by expanding the state’s education duties. Section 201 of the 1868 constitution required the state legislature to provide a public education for children between the ages of five and twenty-one and to instruct children in mathematics, languages, and the democratic process. Upon approval of the new state constitution, Mississippi was readmitted to representation in Congress. Still, even the 1868 constitution’s progressive language did not always result in equitable funding for White and Black schoolchildren, as funds given to local school boards were inequitably distributed and were difficult for federal authorities to monitor. But the education provision was hopeful for the state’s future.

Shortly after being freed from federal oversight in the post-Reconstruction era, however, Mississippi’s legislature amended the state constitution in 1898. Mississippi legislators were forthright in the primary purpose for the new constitution: to disenfranchise African-Americans and limit Black political participation and economic opportunities through a combination of poll taxes, literacy requirements and criminal laws. The resulting 1890 constitution deleted the 1868 constitution’s preamble identifying education as vital for “the stability of a republican form of government [which] depends mainly upon the intelligence and virtue of the people” and added explicit language mandating segregated schools. The 1890 constitution, with subsequent amendments, governs Mississippi today.

Other plaintiffs have unsuccessfully argued that amendments to Mississippi’s education clause violated the terms of the state’s readmission. In a 1995 case, A-1 By D-2 v. Molpus, two Mississippi students challenged the 1890 constitution, arguing that the state’s education system deprived African-American students of an adequate education and required one of the plaintiffs to wait until age six to enroll in public school instead of age five as the 1868 constitution provided. The suit was found barred by the Eleventh Amendment, which prohibits a state citizen from suing his or her own state in federal court. The federal court also rejected the civil rights claims because the plaintiffs had been in the school system longer than Mississippi’s three-year statute of limitations and should have been aware of the claimed educational disadvantages in the 1890 constitution before the end of the limitations period. Although Williams v. Bryant could be resolved similarly, obtaining relief may be less important than another educational goal – bringing attention to structural inequalities in the education system and reforming the state constitution’s language to allow challenges to that system.