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.

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