How Initiative 42 is Dangerous to Teachers and Principals

In my previous posts about Initiative 42, I have neglected to mention an important fact about myself. I am the son of a retired high school principal.

The reason I mention this is because I understand what teachers and principals go through. After all, Dad brought it home with him all the time.

One of his biggest complaints were about parents. No, these complaints were not because they wanted to get involved in their children’s education. Nor was he ever upset about parents injecting their thoughts about what kids were learning. Rather, his big beef was about discipline.

Just about every time he had to punish a child, the parents would come back to school and read him the Riot Act.

First of all, their children always did right. Second, suspending their children from school always meant that at least one of the parents (and back then, most of the kids still had two parents) would have to miss work to babysit. And third, if he ever paddled one of their kids, then Katie, bar the door, they would come back steaming mad.

Simply put, just about any time a child was punished, the parents would come to their children’s defense, come Hell or high water.

Gone were the days of “if you get a paddling at school, you will get a butt-whooping when you get home.” No. Butt-whoopings (at least, the verbal equivalent) were reserved for the principal who dared to correct their children.

Dad’s been retired for almost twenty years. So, I suppose that it is possible my childhood recollections of these events are a bit exaggerated, but certainly not by much. And as fast as the nuclear family has broken down in the two decades since Dad retired, the scenarios described above don’t seem that far-fetched to me, especially since I have seen way too many people like those parents I have described in my law practice.

In any event, anybody who is remotely associated with education today will agree that it is tough disciplining students. Children with severe discipline problems tend to acquire these problems from parents who, themselves, have discipline problems of their own. Therefore, if the teacher or principal does anything to the child that would remotely inconvenience these parents, then these parents will let their displeasure be known most prodigiously!

This brings me to the point of tonight’s commentary. How would Initiative 42 impact school discipline?

Imagine for a moment that you are a teacher who has a very unruly child. You simply cannot keep that child in your classroom without depriving other children of a quality education. So you send that child to the principal’s office, where he will receive whatever now suffices for discipline in our post-modern world.

By doing so, are you not depriving that unruly child of “educational opportunity?” While he is in the principal’s office getting a tongue-lashing, he obviously is not learning about reading, writing, or arithmetic. Certainly, that time could be made up during recess, or during in-school detention. But if he is sent home for a few days (because his behavior is bad), or if he is expelled (because his behavior is really bad), then that time missed simply cannot be made up. Therefore, he most definitely would have been deprived of “educational opportunity,” wouldn’t you say?

Well, if Initiative 42 passes, educational opportunity will become “each child’s fundamental right.” Presently, educational opportunity is not a “fundamental right.” But if Initiative 42 passes, educational opportunity will become a “fundamental right.” I simply cannot stress the words “FUNDAMENTAL RIGHT” enough because judges will move heaven and earth to protect fundamental rights.

Whenever the State deprives a person of his fundamental right, a lawsuit usually will follow. That’s because lawyers know that defending fundamental rights is like picking low-hanging fruit. The law places fundamental rights in a different category than other rights. And that is always to the advantage of the plaintiff.

For example, marriage is a fundamental right. If nothing else, the whole debate about gay marriage demonstrates the limits of governmental power over marriage. So when homosexuals sued for the right to marry, they were successful because marriage is a fundamental right.

But managing real estate, on the other hand, is not a fundamental right. Just because one may own a building doesn’t give that person the unmitigated right to use that building the way he or she sees fit. If, for example, a town has zoning laws, the town could tell a person, “I’m sorry, but you simply cannot operate your business at that address.”

Moving back to the issue of education, the right to educational opportunity as it stands right now, without Initiative 42, is akin to owning a building. Yes, a child has a “right” to an education, but it is not a “fundamental right.” And because it is not a fundamental right, schools have some flexibility in limiting educational access when necessary.

But Initiative 42 will change that. If enacted, educational opportunity will become a fundamental right that the State must protect. And a chancellor will have the express authority to issue whatever orders are necessary to ensure that these fundamental rights are protected.

So if the State, by and through a school principal, were ever to deprive a child of the fundamental right to educational opportunity – a right that would be ensconced in the State Constitution if Initiative 42 passes – then that child’s parent would have standing to file a lawsuit seeking “injunctive relief” to force the school to let the child back into classes. And because the newly-amended State Constitution will expressly give a chancellor the authority issue injunctions, the chancellor, at the very least, would have to hear the case.

Now, I suspect that more times than not the chancellor would side with the school. Be that as it may, we all know that courts operate during the same business hours that schools do. Thus witnesses, such as the teacher and the principal, would have to miss school in order to testify at court about the facts of the case. So instead of teaching the children who want to learn, they will be in court dealing with the child that they had disciplined for being a distraction.

Fortunately for teachers, “injunctive relief” does not include money damages. Thus, lawsuits for money damages (what we lawyers call “tort actions”) would likely not be heard by the chancery judge. Even if the chancellor did, he or she would follow the Mississippi Tort Claims Act, which gives immunity to teachers in most instances.

But that is only if a suit is filed in chancery court, and not in federal court.  If suits like these were to go to federal court, all bets would be off because federal law trumps state law.

If the parent were to file suit in federal court, he or she could sue the principal and the teacher not only for injunctive relief (which is all the relief a chancellor can give), but also for money damages and attorneys’ fees.  By doing so, the parent could completely avoid sovereign immunity as well as the restrictions found in the Mississippi Tort Claims Act.

Rather than reinvent the wheel, or get whacked for plagiarism, here is an article written by a gentleman named Mike Bersani from Itasca, Illinois back in 1999. This article, which has absolutely nothing to do with education, but has everything to do with federal equal protection cases, was published by the Illinois State Bar Association Local Government Section. The article is entitled, “Floodgates Open to Equal Protection Claims.” Here is a quote:

The Equal Protection Clause of the 14th Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Most lawyers associate this constitutional prohibition with discrimination based on membership in a suspect class, such as race or gender. Indeed, case law supports the principle that some type of class-based discrimination must be alleged in order to state an equal protection claim under 42 U.S.C. § 1983. See Herro v. City of Milwaukee, 44 F.3d 550, 552 (7th Cir. 1995); Albright v. Oliver, 975 F.2d 343, 348 (7th Cir. 1992); New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir. 1990).

However, an emerging body of case law starting with Esmail v. Macrane, 53 F.3d 176 (7th Cir.1995), and reaffirmed recently in Olech v. Village of Willowbrook, No. 98-2235, Slip Op. (7th Cir. 11/12/98), recognizing an admittedly uncommon and unusual kind of equal protection claim when disparate treatment is based upon sheer vindictiveness, maliciousness, animosity or spite toward a single entity or individual unrelated to any legitimate state interest. Under these circumstances, a “class of one” may bring a section 1983 equal protection claim.

In layman’s terms, under the Esmail doctrine, if a state actor singles out a person for malicious treatment, the state actor could be sued for violating the person’s civil rights.

Although Esmail is still good case law, in that it has never been reversed, Esmail is a case from the Seventh Circuit Court of Appeals. Mississippi is governed by the Fifth Circuit. Therefore, we need to learn what the Fifth Circuit says about “class of one” discrimination claims because Fifth Circuit precedent controls in Mississippi.

This is what Judge Debra Brown of the U. S. District Court for the Northern District of Mississippi opined JUST THREE WEEKS AGO in the case of Michael v. Boutwell, 2015 U.S. Dist. LEXIS 136838, *40-41 (N.D. Miss. Oct. 7, 2015):

“To establish a claim for selective enforcement under the Equal Protection clause, ‘a plaintiff must prove that the government official’s acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right.'” Craig v. City of Yazoo City, 984 F.Supp.2d 616, 624 (S.D. Miss. 2013) (quoting Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir. 2000)); see also Knapp v. U.S. Dep’t of Agric., 796 F.3d 445, 467 (5th Cir. 2015). While the Fifth Circuit has been skeptical of “class of one” selective enforcement claims, neither it (nor the United States Supreme Court) has explicitly rejected such a theory. See Rogers v. Louisville-Winston Cty. Airport Auth., No. 1:13-cv-197, 2015 U.S. Dist. LEXIS 41692, 2015 WL 1505843, at *3-4 (N.D. Miss. Mar. 31, 2015) (collecting authority). However, where courts have allowed class of one claims, they have required a showing that the plaintiff was treated differently from similarly situated persons. Id.

What Judge Brown is saying is quite telling. Basically, if a state employee acts with the motivation to prevent a person from exercising a constitutional right, then that state employee can be sued. However, the plaintiff must show that he was treated differently from similarly-situated persons.

Well, what does this mean to education?

If Initiative 42 passes, educational opportunity will become a “fundamental right” under the Mississippi Constitution. Granted, educational opportunity would not be a right under the U. S. Constitution. But it would be a “constitutional right” nonetheless since it would be expressly written into the Mississippi Constitution.

Therefore, one could reasonably assert that a claim for selective enforcement under the Equal Protection Clause by an unruly student who was expelled or suspended from school should be permitted since educational opportunity would be a constitutional right that Initiative 42 promises to “to protect.”

Ergo, following the logic of Judge Brown’s opinion, if a principal or teacher (who are governmental officials) were to expel a child because the principal or teacher supposedly had the improper “desire to prevent the exercise of a constitutional right” (i.e., the child’s fundamental right under the Mississippi Constitution to “educational opportunity”), then that principal or teacher could be sued for violating the civil rights of the child under 42 U.S.C. § 1983.   And since Section 1983 trumps the Mississippi Tort Claims Act, that principal would enjoy absolutely no immunity from suit.

So if you are a teacher or principal who wants to hold the Legislature accountable to its duty to fund the schools, take a long, hard look at your students.

Do you trust your students – or more importantly, their parents – not to sue you for violating their “fundamental right to educational opportunity?”

I understand that teachers are concerned about their livelihood. Boy, do I! But I am concerned about the livelihood of teachers, too.

I know from years of observing my father that some parents simply cannot be trusted. And if they are given an inch… if they have any opportunity to take a teacher, a principal, or a school district to court, they will sue for whatever they can get.

Teachers, please…. For your safety…. For your protection. Vote against Initiative 42.

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A Response to Justice Carlson and 42 For Better Schools

Earlier today, the 42 For Better Schools organization released a video of former Mississippi Supreme Court Justice George Carlson defending Initiative 42.  Here is what Justice Carlson said:

First, Justice Carlson gives his credentials,  Then, Justice Carlson gets into the meat of his argument:

Initiative 42 does not give a Hinds County judge authority over school spending. 42 gives funds to local schools, and they decide how to spend it. If you want funding for every school, only 42 gets the job done. Case closed.

As an opponent of 42, I certainly hope his assessment is correct.  After all, few voters (outside of Hinds County) want a Hinds County Chancery Judge to have authority over school spending.  Otherwise, 42 for Better Schools wouldn’t be spending a bunch of money on advertising to address this particular complaint.  Moreover, I certainly want local schools to have ample funding and the discretion to spend that funding as they see fit.

But with due respect to Justice Carlson, I have no idea how he has reached this conclusion.

One of the first things an appellate attorney learns is that he simply cannot present a legal conclusion without providing legal authority.  As Justice Carlson, himself, notes in the case of Havard v. State, 928 So. 2d 771, 802 (Miss. 2006), “When a party fails to cite authority to support an argument on an issue, [the Mississippi Supreme Court] is not required to review such issue.”

Simply put, if an attorney is going to argue his case, he cannot rely on his own experience — be it as a lawyer or even as a retired Supreme Court justice — for support.  Rather, he must cite legal authority to support his conclusion.

So with great respect to Justice Carlson, I must note that he has failed to do so in this clip.  Therefore, I do not see why we should automatically reach the same conclusion that he has.  This is especially true since the very text of Initiative 42, when viewed in conjunction with other law, undermines his contention.  Initiative 42 reads as follows, to-wit:

To protect each child’s fundamental right to educational opportunity, the State shall provide for the establishment, maintenance and support of an adequate and efficient system of free public schools. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.

First, Justice Carlson argues that Initiative 42 “does not give a Hinds County judge authority over school spending.”  Literally-speaking he is correct.  Although the text mentions “the chancery courts of this State,” it does not mention Hinds County, per se.  So when Initiative 42 is viewed in a complete vacuum, Justice Carlson is correct.  But when Initiative 42 is viewed in conjunction with the Mississippi Code’s venue statute (Miss. Code Ann. Sec. 11-45-1), he is absolutely wrong.  Section 11-45-1 reads as follows, to-wit:

Any person having a claim against the State of Mississippi, after demand made of the auditor of public accounts therefor, and his refusal to issue a warrant on the treasurer in payment of such claim, may, where it is not otherwise provided, bring suit therefor against the state, in the court having jurisdiction of the subject matter which holds its sessions at the seat of government; and, if there be no such court at the seat of government, such suit may be instituted in such court in the county in which the seat of government may be.

Since Initiative 42 does not specify which county will be the venue for suits against the State, any suit brought against the State pursuant to Initiative 42 would have to be filed “in the court having jurisdiction of the subject matter which holds its sessions at the seat of government.”  In other words, since Initiative 42 would give jurisdiction to the chancery courts, then the Chancery Court of Hinds County, First Judicial District (where the seat of government is located) would necessarily hear all suits brought against any State agency or official whose main office is located in Jackson.  So a suit against the State Treasurer, or the Governor, or the Legislature would have to be filed in Hinds County.

Now just because the Chancery Court of Hinds County may hear these disputes does not necessarily mean that the Chancellor will exercise authority over school spending, right?

Ask yourself these questions.  Why is Initiative 42 even on the ballot?  Is it not on the ballot because the Legislature has supposedly failed to “provide for the establishment, maintenance, and support of an adequate and efficient system of free public schools?”

OK, so what if the Legislature continues to do what it is doing, funding schools at levels that are insufficient in the estimation of some?  If they continue to do so, what is the Chancery Judge in Hinds County supposed to do?  Is he or she not supposed to order the State — by way of appropriate injunctive relief — to fund these schools anyway?   Obviously!  Well, wouldn’t the Chancellor be taking “authority over school spending,” despite Justice Carlson’s contention?

In fairness, Justice Carlson may be describing a distinction between the Chancellor telling the State where to spend money and telling the school districts how to spend the money.  Certainly, it would be one thing for a Judge to tell the State Treasurer to cut a check to the Chickasaw County Schools, but it would be another thing for a Judge to tell the Chickasaw County Schools how to spend that money.  But, with due respect to Justice Carlson, Initiative 42 makes no distinction between the two scenarios.

Initiative 42 would require the State “to provide for the establishment, maintenance, and support of an [singular] adequate and efficient system [singular] of free public schools.”  Let’s compare this language to the existing constitutional provision (i.e. Section 201) that Initiative 42 intends to replace.  The existing Section 201 reads as follows, to-wit:

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.

Notice that under the Mississippi Constitution as it presently reads, there is no mention of there being a “system of free public schools.”  Rather, the existing Section 201 speaks of “free public schools,” without any mention of their being a “system.”

In more simple terms, the existing Section 201 views each of our school districts as being separate and distinct.  However, Initiative 42 views all of our schools as being one giant school system. So invariably, whichever judge gets to rule on whether the Legislature has appropriated enough funds would be able to check under the proverbial hood to see if the engine of education — i.e., the system of free public schools — is “adequate and efficient.”  Therefore, if the Chancellor were to discover inadequacies or inefficiencies in our system of free public schools, then the Chancellor could rule however he or she sees fit, issuing injunctions upon any state or county official to achieve these ends — even taking money from one school district and giving it to another.

Taking this a step further, not only does Initiative 42 treat our schools as being one giant school system, it also removes all legislative discretion in placing “conditions and limitations”  upon public schools.  By taking the words “conditions and limitations” out of the existing Section 201, Initiative 42 would remove that power from the Legislature.

Well, if the Legislature is being divested of its authority under Section 201 to place “conditions and limitations” upon school districts, then who would have that authority?   By default, that person would be a chancery judge…. most likely from Hinds County.

So, with due respect to Justice Carlson, he is absolutely wrong. If Initiative 42 passes, a Chancellor from Hinds County would have more say in making education policy — including where and how money is spent throughout the State — than would any school board or even the Legislature itself.

In the final analysis, 42 For Better Schools is selling Mississippi a bill of goods.

I challenge you to go to their website and locate the actual text of their proposed amendment.  A few days ago, my wife and I both searched for this information and could not find it.  Granted, our 40-year-old eyes may have been unable to locate them due to our respective cases of myopia. Nevertheless, assuming that we did not overlook it, why would 42 for Better Schools fail to display the text of their proposed amendment on their website?

Could it be that they really don’t want you to read what it says?  Could it be that they would rather use political endorsements — backed by absolutely no legal authority — to convince you to walk on by because there is nothing to see here?

I submit that 42 For Better Schools knows exactly what this measure will do.  It will vest all power regarding education into the hands of the judiciary.  And for this clear violation of the separation of powers, Initiative 42 should fail.

Mississippi Initiative 42 — Part III — How It Impacts Homeschooling

My wife home-schools our two children. She has been asking me to discuss the ramifications of homeschooling in the context of Mississippi Initiative 42.

On November 3, Mississippi voters will decide the fate of Initiative 42. According to the Secretary of State’s office, Initiative 42 seeks to amend the Mississippi Constitution of 1890 as follows:

To protect each child’s fundamental right to educational opportunity, the State shall provide for the establishment, maintenance and support of an adequate and efficient system of free public schools. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.

Looking strictly at the text of this referendum, the impact on homeschooling simply is not particularly clear.

On the one hand, Initiative 42 says absolutely nothing about homeschooling. All it requires is that the State “provide for the establishment, maintenance and support of an adequate and efficient system of free public schools.” As such, there is nothing in the proposed amendment that overtly requires a homeschool parent to enroll his/her child into a “free public school.”

On the other hand, Initiative 42 also states that each child has a “fundamental right to educational opportunity.” Naturally, all children – including home-schooled children – would be vested with this fundamental right. And since Initiative 42 describes how the State will “protect” this fundamental right – by “the establishment, maintenance and support of an adequate and efficient system of free public schools” – one could make the case (by reverse implication) that the fundamental rights of home-schooled children would be unprotected unless they were to enroll in the “adequate and efficient system of free public schools” that is provided by the State.

Let’s digress for just a moment. Think about the word “protect.” To protect someone implies that there is an external threat, does it not? Hypothetically, if one were to live in a society that is completely devoid of crime, one would not need police protection. Similarly, if one lived at a time where disease was completely eradicated, one would not need the protection of vaccines. Along these lines, since Initiative 42 seeks “to protect each child’s fundamental right to educational opportunity,” this need for protection would imply that some people want to undermine the educational opportunities of Mississippi children. So, pray tell, who are these people?

The proposed amendment is not exactly clear as to who (or whom) the “bad guys” are. From reading their material, the proponents of Initiative 42 seem perturbed with the Legislature for not funding education. So the “bad guys” are probably the men and women we have elected to make our laws, and not the parents who home-school their children. Nevertheless, if the powers-that-be were ever to view homeschool children as the victims and their parents as being the perpetrators, they could attempt to use Initiative 42 as a weapon to end homeschooling in Mississippi. (Whether that would fly is something that I cannot predict since the text is ambiguous.)

Although I do not see anything in the text that would implicate homeschooling at the present time, legal realists who believe in a “living breathing” U.S. Constitution may see an identical opportunity to breathe new meaning into the State Constitution if Initiative 42 passes. Because if the State must “protect each child’s right to educational opportunity,” how then would the State guarantee equal protection to all children if some children are not enrolled in the “adequate and efficient system of free public schools?”

In fairness to the proponents of Initiative 42, I do not believe this is their intention, nor do I believe the risks vis-à-vis homeschooling are great (insomuch as future restrictions on the practice may be concerned).

However, I do see one serious concern for homeschool parents. If the Constitution of Mississippi defines “educational opportunity” as being “each child’s fundamental right,” then a homeschooled child could one day have a cause of action against his parents for negligence if he felt that he had been deprived of a proper education.

Putting all the bad aside, there is one positive to homeschooled parents if Initiative 42 passes. Parents who homeschool their children might be able to require the State to allow their children to take some – albeit not all – classes at public schools.

In the final analysis, this is a mixed bag for homeschoolers and their parents. Although I do not believe that it will ban homeschooling, one day it might be used as a weapon to that end by those who are opposed to parental control over education. Likewise, it could open parents to civil litigation from disgruntled children. But, at the same time, it could open doors to public schools that may otherwise be closed to homeschool parents.

I intend to vote against the measure, but not because I am a homeschool parent. I intend to vote against the measure because I am a lawyer who believes this proposal is poorly written and far too ambiguous to be placed into our State Constitution.

Mississippi Initiative 42 — Part II

This is Part Two of my analysis of Mississippi Initiative 42.  Part One of my analysis can be found here.

Mississippi voters will decide the fate of Initiative 42 this November. According to the Secretary of State’s office, Initiative 42 seeks to amend the Mississippi Constitution of 1890 as follows:

To protect each child’s fundamental right to educational opportunity, the State shall provide for the establishment, maintenance and support of an adequate and efficient system of free public schools. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.

Pursuant to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, no state may “deny to any person within its jurisdiction the equal protection of the laws.” Accordingly, whenever a person believes that the State has denied to him the “equal protection of the laws,” he may invoke the jurisdiction of the federal courts to seek relief. Therefore, as we saw from the debate on gay marriage, whenever the federal courts use the Equal Protection Clause to justify intervention in disputes over state law, the courts may rewrite state law by way of judicial fiat.

If passed, Initiative 42 would become a solemn promise by the State to protect “each child’s fundamental right to educational opportunity” by “provid[ing] for the establishment, maintenance and support of an adequate and efficient system of free public schools.” So if the State’s “system of free public schools” were deemed inadequate or inefficient, then by the very language of the newly-amended Mississippi Constitution, “each child’s fundamental right to educational opportunity” would be unprotected.

Therefore, if a parent were to believe that her child was being deprived of “educational opportunity” because our “system of free public schools” was not “adequate” or “efficient,” then that parent could file a federal lawsuit seeking to rectify the problem – thereby skipping the “chancery courts of this State” altogether.

Since the Mississippi Constitution, if amended by Initiative 42, would equate protecting each child’s “fundamental right to educational opportunity” with the State having an “adequate and efficient system of free public schools,” a federal judge could take authority over every school in the State, dictating issues of funding, administration, or even curricula in order to achieve Initiative 42’s stated purpose.

Although the language of the proposed amendment only references the “chancery courts of this State,” the reality is that a federal judge could determine if the Equal Protection Clause has been violated by the State’s failure “to protect each child’s fundamental right to educational opportunity” by “provid[ing] for the establishment, maintenance and support of an adequate and efficient system of free public schools.”

That federal judge, in turn, would have carte blanche to order the State, as he or she sees fit, to comply with the terms of its own constitutional amendment. And if the State disagreed with the federal judge’s ruling, the State would have to appeal to the United States Court of Appeals for the Fifth Circuit in New Orleans. Thus, only a handful of Mississippi residents (i.e., the federal judge and maybe a few of the judges in New Orleans) would be able to dictate the future of education policy in this State.

So if you want to protect your say about the future of education in your state, then you need to vote against Initiative 42.

Mississippi Initiative 42

Mississippi voters will decide the fate of Initiative 42 this November. According to the Secretary of State’s office, Initiative 42 seeks to amend the Mississippi Constitution of 1890 as follows:

To protect each child’s fundamental right to educational opportunity, the State shall provide for the establishment, maintenance and support of an adequate and efficient system of free public schools. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.

This commentary will analyze the proposed amendment from the perspective of an attorney who regularly practices before the “chancery courts of this State.” So without further ado, let’s examine this proposed amendment, bit by bit.

“To protect each child’s …”

The word protect is pregnant with meaning. Under the Fourteenth Amendment to the United States Constitution, no State may “deny to any person within its jurisdiction the equal protection of the laws.” So right off the bat, Initiative 42 implicates the Equal Protection Clause because the State is now stating that it intends to “protect” the right of each child to have an education.

Notice that the Equal Protection Clause speaks of “any person,” NOT “any citizen” (as is mentioned elsewhere in the Fourteenth Amendment). Therefore, if the State is going to “protect” one child’s “fundamental right to educational opportunity,” then the State must “protect” every child’s “fundamental right to educational opportunity.”

This would necessarily include illegal immigrants who are living within the jurisdiction of the State of Mississippi. Although illegal immigrants are not citizens, they are persons. And as persons, they are entitled to equal protection of the laws of Mississippi, including the proposed amendment, if it is passed.

In fairness, this amendment would not encourage illegal immigration, nor would it transform schools into havens for people to avoid deportation (since federal immigration law would trump any state law, including a state constitutional provision). In fact, nothing about this amendment would prevent a principal or teacher from reporting undocumented students to Immigration and Customs Enforcement (“ICE”). However, by that same token, if a principal or teacher were to disregard a child’s lack of documentation, that child would be entitled to a free public education just like every other child in Mississippi.

“… fundamental right to educational opportunity …”

Having established that the word protect necessarily implicates the Equal Protection Clause of the Fourteenth Amendment, we must examine the phrase “fundamental right” in the context of Fourteenth Amendment jurisprudence.

Whenever a state enacts a law that restricts a person’s right, the federal courts (and by extension, the state courts) must determine just how important that right is when compared to other rights. If a right in question is considered fundamental, then the state must have a really, really good reason to enact such a restriction. (In these cases, the courts use “strict scrutiny” to analyze the law.) Conversely, if a right is not considered to be fundamental, then the state only needs a decent reason for the law. (In these cases, the courts use the “rational basis test” to analyze the law.)

If Initiative 42 is enacted, each child will have a “fundamental right to educational opportunity.” Invariably this means that courts – be they federal or state – will use the strict scrutiny standard, and not the rational basis test (which has been used since the early 1970’s), to examine laws pertaining to education. So while Initiative 42 is all about funding, by amending the State’s constitution to make education a “fundamental right,” Initiative 42 will make it harder for the Legislature or any school board to enact any restriction on educational access.

For example, imagine that a hypothetical rural school can afford to have (1) a football program, or (2) a state-of-the-art physics lab. Since having educational opportunity would now be “each child’s fundamental right,” the chancery court would use strict scrutiny to analyze the school’s decision to divert money to football instead of to the physics lab. Therefore, if no students were interested in physics, then football might be saved. But if only one child – a child with a “fundamental right to educational opportunity” – were to demand better physics training, then the chancellor would be hard pressed to permit the school to have a football program in lieu of a physics lab. (Conversely, if school funding were examined under the rational-basis test, a school would be able to pick football over physics, provided that it has a decent reason.)

In fairness, I must stress that Initiative 42 does not intend to take football away from small town schools. That is not its purpose. Its purpose is to force the Legislature to fully-fund education in Mississippi. However, by stating that educational opportunity is a “fundamental right” that must be protected, the proposed amendment invokes the Equal Protection Clause of the Fourteenth Amendment, thereby inviting the strict-scrutiny analysis that comes with it. So while a school board may have more funding from Jackson, its discretion in allocating these funds between academic and non-academic pursuits will be subject to judicial review under a strict-scrutiny analysis.

“…the State shall provide for the establishment, maintenance and support of an adequate and efficient system of free public schools.…”

As mentioned, the State wants “to protect each child’s fundamental right to educational opportunity.” It endeavors to do so by providing “for the establishment, maintenance and support of an adequate and efficient system of free public schools.” Therefore, if the state fails to make such provision, strict scrutiny necessitates that the State have a really, really good reason for not doing so.

Notice the use of the phrase “an adequate and efficient system.” In practice, we have scores of different school systems in this state. We have eighty-two counties, each of which has a school district. Also, several municipalities have their own school districts. Without going to the trouble of actually counting them – which is beside the point – I surmise that we have at least 100, maybe 150 school districts in this state.

Each of these school districts enjoys a certain measure of autonomy. Granted, there are standardized tests throughout Mississippi, and the Mississippi Department of Education does impose some general regulations for each school district. However, decisions like hiring & firing or course offerings are governed (for the most part) by the local school boards.

However, this proposed amendment, which trumps all other parts of the State Constitution, refers to “an adequate and efficient system” (singular) of schools.   Furthermore, since this singular “system” is supposed to be “efficient,” it stands to reason that, in the name of efficiency, the State could disband all local school boards, centralizing all control in Jackson. Or, in less drastic fashion, the State could redistribute resources between school districts to ensure equal educational opportunity.   Either way, this proposed amendment could enable a power grab in Jackson.

In fairness to the proponents of Initiative 42, this may not be their intention. However, students from smaller districts may view resource-disparities between the school districts as being an infringement upon their fundamental right to educational opportunity. Therefore, by utilizing a literal reading of the text in the context of strict scrutiny analysis, one could view our free public schools as being one homogeneous system, thereby permitting the redistribution of resources between schools to effectuate total equality of educational opportunity.

“…The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.”

This section of the proposed amendment gives the chancery courts “the power to enforce this section with appropriate injunctive relief.”

In layman’s terms, this means that a chancery judge (commonly called a “chancellor”) can order the State to “provide for the establishment, maintenance and support of an adequate and efficient system of free public schools” in order to “protect each child’s fundamental right to educational opportunity.”

In chancery court, there is no jury; the judge decides. Granted, parties that lose in chancery court can appeal to the Supreme Court and/or the Court of Appeals. But these appellate courts typically do not rehear the cases. Instead, they usually examine the record to see if the chancellor abused his or her discretion in making his decision.

Imagine that you are in Wal-Mart and you see a mother spanking her unruly child. As a parent, I would never do that. I would wait until my child got home before I spanked him/her. But with that being said, I understand that some parents have a different view on the topic. So as long as they weren’t beating the living daylights out of the child, I wouldn’t call the store manager or summon the police. I would simply mind my own business.

Well that is what an abuse of discretion standard is. The appellate judges are not going to disturb the findings of a chancellor – even if they believe the chancellor is wrong – unless they think the chancellor has abused the discretion that the law has given him or her. And since the proposed amendment gives power to a chancery court to enforce this amendment – without any express limitations — a chancellor could hardly be accused of abusing his or her discretion.

With that being said, the appellate courts could reverse a chancellor if he or she interpreted the law incorrectly. But if the chancellor were to employ a strict scrutiny analysis, the risk of reversal would be slim in light of the clear correlation between the proposed amendment’s aim “to protect each child’s fundamental right to educational opportunity” and existing Fourteenth Amendment jurisprudence.

Conclusion

As an attorney licensed by the State of Mississippi, it is my opinion that Initiative 42 would be conducive for more centralized control of our public schools. As such, power will be concentrated in the hands of only a few judges, who likely will borrow from the established jurisprudence of the federal courts and use strict-scrutiny analysis to balance the “fundamental rights” of children against the State’s need to control the operations of its schools. When this happens, these judges – though well-meaning and honorable — will effectively have more discretion over the day-to-day operations of a school district than will the parents, teachers, and local administrators who walk the halls day-in and day-out.  Although I have a great deal of trust in our chancellors, this amendment, as written, is far too drastic for my tastes. Therefore, I recommend that you vote “NO” on Initiative 42.