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.


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.


3 thoughts on “Mississippi Initiative 42

  1. As I see it, the legislature would still have the reseponsibility, and as long as it does its job, the courts are out of it. I’m for 42. Many of the hypothetical arguments are just that, hypothetical. The children and the current situation with an unresponsive legislature, ignoring the Adequate Funding Act, are not hypothetical.


    • Lawyers are trained to look for things that are foreseeable. For example, its foreseeable that people could have car wrecks and die if someone were to drop an anvil onto the interstate from a highway overpass during rush hour. In fact, the concept of foreseeability is so important that virtually every negligence suit is based upon whether the consequences of the tortfeasor’s action(s) were foreseeable at the time the actions were commenced.

      I mention foreseeability to stress the point that even though my analysis of Initiative 42 raises issues which are hypothetical — and admittedly they are since the amendment has not passed yet — these issues are nevertheless foreseeable.

      If the drafters of Initiative 42 had simply wanted to fund education and enable judicial oversight of said funding, they could have drafted a proposed amendment that made no reference to “protect[ing] each child’s fundamental right…” Since, however, they chose to use this language, I have used my training and experience as an attorney to identify the foreseeable pitfalls that this extra language implicates.


  2. Pingback: Mississippi Initiative 42 — Part II | The Sociable Conservative

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