Mississippi Suit Invokes Reconstruction Era Constitutional Requirement

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Mississippi Suit Invokes Reconstruction Era Constitutional Requirement

The Southern Poverty Law Center filed an innovative complaint in the U.S. District Court for the Southern District of Mississippi earlier this week. It alleges that the State of Mississippi, by watering down the language of the education clause in its constitution as it existed in 1868, has reneged on one of the substantive conditions for its re-admission to the Union after the Civil War. In Williams v. Bryant plaintiffs claim that Mississippi’s readmission required it to establish a “uniform system of free public schools,” a commitment enshrined in the state’s 1868 Constitution intended to ensure that the former slaves of school age and their descendants would receive an education equal in quality to that received by white students.” Since then, Mississippi has rewritten the constitution’s education clause four times and has eliminated all of the original substantive requirements. This has caused  the plaintiffs, low income African-American students, “to languish in failing schools located in failing school districts,” according to the complaint.

In 1868, when Mississippi was re-admitted to the Union, its constitution’s education clause read as follows:

As the stability of a republican form of government depends mainly upon the intelligence and virtue of the people, it shall be the duty of the Legislature to encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement, by establishing a uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years, and shall, as soon as practicable, establish schools of higher grade.

This was, in fact, standard language that was included in the constitutions of many other states in the nineteenth century and a number of states, like, for example, Minnesota, retain that language today. Mississippi, however, revised its constitutional educational provision four times over the last century and a half. The current version, adopted in 1987, is probably the weakest language of any such clause in the country, since it imposes virtually no substantive requirements whatsoever on the legislature. It reads as follows:

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.

Two years ago, Mississippi’s voters rejected a ballot proposition that would have strengthened this constitutional language. The current plaintiffs are asking the federal court to declare that all of the constitutional revisions since 1868 are null and void and that the original constitutional language should be re-instated. They are relying on the Readmission Act of February 23, 1870, which forbade Mississippi from amending its 1868 constitution to deprive any class of children (and in particular African American children) of their right to a uniform system of free public schools. Presumably, if this claim were upheld, these plaintiffs or others similarly situated,  would then be in a position to bring an adequacy litigation in the state courts, relying on the stronger language of the re-instated provision.

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