Initiative 42 & Alternative 42A: Analysis & Comparison

By Mississippi Center for Public Policy
October 9, 2015

Initiative 42 & Alternative 42A: Proposed
Constitutional Amendments Regarding Public Schools

[For a PDF version of this analysis, click here.]

Last year, proponents of a state Constitutional amendment related to public schools obtained enough signatures to place the amendment, known as Initiative 42, on the November 2015 election ballot. In this year's legislative session, the legislature exercised its Constitutional power to pass an alternative amendment, known as Alternative 42A, which will appear on the same November ballot. Both of these proposed Constitutional amendments are described in this paper.

Mississippi Center for Public Policy is not taking a position for or against either amendment. However, we provide analysis so that voters know what they are being asked to vote on. After we posted our initial analysis of Initiative 42, the group known as Better Schools Better Jobs (BSBJ), responded. That organization, also known as "42 for Better Schools," is the primary organization supporting the Initiative. BSBJ posted our analysis on their website, along with their response. We welcome the discussion and have included their response verbatim - and our analysis of it - in this paper. Our analysis of 42A is new and has not drawn a response.

Initiative 42 would make the following changes to the Mississippi Constitution (the Initiative's proposed additions are underlined, and its proposed deletions are shown as strike-through text):

SECTION 201. To protect each child's fundamental right to educational opportunity, The Legislature the State shall, by general law, provide for the establishment, maintenance and support of an adequate and efficient system of free public schools upon such conditions and limitations as the Legislature may provide. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.

The Initiative's "title" appears on the ballot in the form of a question and is supposed to reflect the purpose of the Constitutional amendment. The title for Initiative 42, however, will read as follows:

"Should the state be required to provide for the support of an adequate and efficient system of free public schools?"

1. Does the Amendment Address School Funding?

MCPP Original Analysis. This amendment says nothing about funding. While the phrase, "establishment, maintenance and support" could be construed to be related to funding, that phrase is already in the Constitution. This amendment does not propose to change that phrase.

BSBJ Response: The amendment says that the State of Mississippi is responsible for the "...maintenance and support of an adequate and efficient system of free public schools." Clearly, the words "maintenance and support" mean funding. The more important word, however, is "adequate." Contrary to every other state in the U.S., Mississippi's Constitution currently does not require that children be provided an adequate education, only a free one.

The amendment states that our children should be provided at least an adequate education. The amendment leaves it up to the legislature to determine how it will establish, maintain and support an adequate and efficient system of public education, but it requires the legislature to provide support (funding) for an adequate education.

MCPP Analysis of BSBJ Response: Point well taken with regard to whether the amendment relates to funding. We appreciate BSBJ's pointing this out, since our goal is not to tell people whether they should support or oppose the Initiative; our goal is to ensure that the public has an accurate description of what they will be asked to vote on. We said the maintenance and support phrase "could be construed" as being related to funding, which is true, but as a practical matter, it is more accurate to say this phrase is generally construed by courts to be related to funding.

However, BSBJ's statement that the Constitutions of "every other state in the U.S." require "adequate" funding is simply not accurate. A number of states do not have such a requirement in their Constitution.

Most importantly, it is difficult to understand BSBJ's contention that the legislature would retain any authority over the amount or use of school funding. In three places, the proposed Constitutional amendment deletes references to the legislature and/or its authority over the educational system. It then adds a provision giving power of enforcement to courts. Here is the relevant wording (proposed deletions are struck through, and additions are underlined): "The Legislature State shall, by general law, provide for the establishment, maintenance and support of an adequate and efficient system of free public schools upon such conditions and limitations as the Legislature may provide." The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief. For more on this point, see questions 3 and 5 below.

2. What Court Would Have Jurisdiction, and Why Does That Matter?

MCPP Original Analysis. The last sentence in the amendment gives the power to "the chancery courts of this state." Because the State of Mississippi would be the defendant in any lawsuit filed to enforce this section of the Constitution, the lawsuit would have to be filed in Hinds County Chancery Court. There are four Hinds County Chancery Judges, each of whom is elected only by the citizens of a district of the county. One of these judges would be assigned to hear the case, meaning a judge from the Jackson area, who is elected by a small number of people in Hinds County, would have full authority to decide not only how much money is sufficient but how the money is to be spent. The legislature would have no ability to limit the impact of the judge's rulings (see #3).

BSBJ Response: Chancery courts are specified in order to prevent lawsuits for damages. Chancery courts would have the power to enforce the law to adequately fund public schools. A court ruling would simply require the legislature to follow the law and the Constitution.

Under current law, venue for a lawsuit against the State of Mississippi is in Jackson, the state capital, which is in Hinds County. The legislature could pass legislation establishing chancery court venue where the school district is located. In other words, if the legislature does not want to be sued in a Hinds County Chancery Court, it could change that by statute.

MCPP Analysis of BSBJ Response: BSBJ's statement about whether a lawsuit in chancery court can include damages is not accurate. For example, the state's lawsuit against the tobacco industry was filed in chancery court and most certainly included damages. The current Musgrove lawsuit regarding MAEP, which asks for damages, was filed in chancery court. The amendment is not worded in a way that would "prevent lawsuits for damages," as BSBJ asserts.

It is true that a change of venue could be accomplished by a change in law, but our point is not that the venue is Hinds County per se; venue could be changed to any county, and our point would be the same: one judge, elected by the people in one district, would have the power to set education policy and funding for the entire state.

3. Would There Be Limits on the Judge's Decisions?

MCPP Original Analysis. The amendment places no limits on the Hinds County judge who hears such a lawsuit. The judge could, as the initiative's proponents seem to anticipate, require the legislature to "fully fund" the MAEP formula and to phase-in the increased funding over seven years. However, the judge could also choose to require the legislature to double, or even triple, the MAEP funding. The judge could also decide that high-performing districts are getting enough from the state and order the state to give any "new" money to low-performing districts until they catch up. Furthermore, because the amendment does not limit the judge's reach, and because it gives the judge jurisdiction over a "system" of schools, he or she would have full authority to dictate to the state department of education and local school districts exactly how the money should be spent at the state and local level.

BSBJ Response: Clearly, opponents of the amendment seem to believe that their best option for defeating it is fear-mongering about chancery judges in Hinds County. The powers of these judges are limited and checked by the Constitution itself. Either party in a suit can request that the case be heard by a jury. The bottom line is that a lawsuit would be necessary only if the legislature ignores the law and the Constitution, thwarting the will of Mississippi voters regarding public school funding.

The court's decision would have to be based on the facts presented by each side. The chancery court ruling can be appealed to the Mississippi Supreme Court for a final ruling. This procedure is current law. A chancery court makes the final decision only if there is no appeal, which is highly unlikely, and as stated in #2 above, the legislature can change the lawsuit location to a county other than Hinds.

MCPP Analysis of BSBJ Response: There's no fear-mongering in our analysis. It's simply the truth. BSBJ offers no dispute as to the potential outcomes we listed. We aren't predicting a judge would rule in these ways, but he or she certainly could do so, since there are no limitations on the judge in this amendment. Furthermore, current Hinds County judges might not rule in these ways, but there is nothing to prevent a judge 10 or 20 years from now ruling in a way BSBJ doesn't anticipate right now.

Jury trials can only be requested in chancery court for contested wills, not for cases such as those that would seek to enforce this Constitutional amendment. Furthermore, the Supreme Court is somewhat limited in its power to overrule decisions from a Chancery Court.

4. Would Taxes Increases, or Budget Cuts to Other Agencies, be Necessary?

MCPP Original Analysis. The amendment makes no mention of a phase-in or any other timing. A lawsuit could be filed immediately after the amendment is adopted, and a ruling could come in the first year following its passage, requiring the legislature to adopt whatever budget is dictated by the judge. This would require drastic cuts to all other government agencies, or it would require a tax increase. Our state Constitution prohibits judges from ordering a tax increase at any level of government, but a mandated spending increase could, in effect, require a tax increase if cutting all other programs proved to be politically impossible. It is estimated that all agencies other than the Department of Education would have to be cut about 17 percent, and that's only if the judge orders "full funding" of the current MAEP formula. Those cuts would include IHL, Community Colleges, Medicaid, Corrections, and virtually everything else. If any of those were excluded from the cuts, then other agencies would be cut more deeply.

BSBJ Response: This claim is meant to mislead people about the amendment process. The petition that has been signed by more than 188,000 Mississippians includes a full description of the process. The legislature will continue to have 100% discretion on how it will fully fund our K-12 schools. Under the ballot's financial proposal, any increases in school funding would be wholly dependent upon state revenue increases. In any year when revenue increases, not less than 25 percent of that increase would be devoted to public education. This process would continue, every year the state has revenue increases, until school funding reaches an adequate level. At the current trend of 3 percent annual revenue growth, adequate school funding would be reached in seven years. NO tax increases, NO automatic cuts for other agencies.

MCPP Analysis of BSBJ Response: Our claim is not misleading; it simply recognizes that the Constitutional amendment itself - not what was written on a petition - is the only thing that matters. The "full description" in the petition was simply an idea of the proponents for how the process could work, but this description has no force of law. Even the BSBJ response above refers to it as a "financial proposal," and in the petition filed by the proponents, they called this proposal a "recommendation." The people of Mississippi will not be voting to approve this proposal/recommendation. They will only be voting on the amendment itself.

What is misleading is the Initiative's "title" that will appear on the ballot. It will appear in the form of a question that is supposed to describe the amendment. But 42's title basically asks the equivalent of, "Do you love your mother?" What voters will see is the question, "Should the state be required to provide for the support of an adequate and efficient system of free public schools?" Regardless of the merits of the amendment, this question does not adequately describe its effects.

BSBJ's contention that the legislature would retain "100 percent discretion" is addressed in items 1 & 5.

5. What Would Be Left of the Legislature's Role?

MCPP Original Analysis. The proposed amendment - in three places - deletes the authority of the legislature to determine any aspect of education policy or funding. This is critically important, because state and federal courts generally determine the will of the voters by noticing the words that were deleted by a Constitutional amendment as well as the words that were added. Education would no longer be ruled "by general law" passed by "the legislature" and signed by the governor, and the legislature would no longer be allowed to place "conditions and limitations" on the funding or performance of public schools. In other words, a Hinds County judge, elected by a few, would have more power than the legislature, elected by all the people of the state, to set education policy for Mississippi.

BSBJ Response: This amendment does not delete the authority of the legislature to determine any aspect of education policy or funding. It says nothing about education policy. Similar to what is already in place in many other states, the amendment says only that the state must have an adequate and efficient system of public education for our children. The legislature has the power and authority to determine what is adequate and efficient. Under our checks and balances system of government, if the legislature does not meet its Constitutional mandate, then the citizens of this state have the opportunity to ask a court whether or not the legislature has met its Constitutional mandate.

MCPP Analysis of BSBJ Response: [See our "Analysis of BSBJ Response" on question 1, where we show the words that would be deleted from the Constitution.] Attorney General Jim Hood, in a memorandum supporting his motion to dismiss the Musgrove MAEP lawsuit, noted that Section 201 of the Constitution (which Initiative 42 proposes to amend) "empowers the legislature to establish the 'conditions and limitations' under which public schools operate." If the legislature is deleted from that section of the Constitution, as proposed by Initiative 42, where does it derive any authority over school funding? As we pointed out originally, when words are deleted from the Constitution, courts consider such an action as the intentional will of the voters. In this case, courts are highly likely to determine that the voters sought to remove the legislature's power to set conditions and limitations on how the education bureaucracy spends money.

BSBJ asserts that the amendment "says nothing about education policy." But when the legislature is prohibited from setting "conditions and limitations" on the "system of free public schools" or its funding, the amendment does say something about education policy by dictating who has authority over it.

Analysis of 42A - the Legislative Alternative to Initiative 42

History of the Initiative Process in Mississippi - In 1992, the voters of Mississippi approved an amendment to the state Constitution to give the people of the state the opportunity to amend the Constitution by use of a ballot initiative. Before that amendment was adopted, the only way to change the Constitution was for two-thirds of both houses of the legislature to approve an amendment, and for the people to adopt it in a general election.

Legislative Alternative - The 1992 amendment created a detailed process for putting an initiative on the ballot. That process included an option for the state legislature to propose an alternative to an initiative. Such an alternative would not replace the initiative, but it would be placed alongside the initiative on the ballot, giving voters the option to vote for the initiative or the alternative, or to vote against both.

Initiative 42 will be the sixth initiative to appear on the ballot. 42A will be the first alternative to appear.

Constitutional Amendment Proposed by Alternative 42A

Alternative 42A, like Initiative 42, would amend the current provision (Section 201) of the state Constitution that calls for the legislature to provide for "free public schools." Alternative 42A would make the following changes (proposed additions are underlined, deletions are shown as strike-through):

SECTION 201. The Legislature shall, by general law, provide for the establishment, maintenance and support of an effective system of free public schools upon such conditions and limitations as the Legislature may prescribe.

The Alternative's "title" that will appear on the ballot will be:

"Should the Legislature provide for the establishment and support of effective free public schools without judicial enforcement?"

Changes to Current Constitution

The current Constitutional provision requires the legislature to provide for "free public schools." Alternative 42A would make two changes. First, it would require the legislature to support "an effective system" of such schools. Second, it would remove a phrase that could be considered redundant with regard to legislative authority.

Alternative 42A retains the authority of the legislature to provide for the school system "by general law." Consequently, the legislature could define what constitutes "an effective system" of schools. It is unknown how any court would define that term. Because the legislature retains this "general law" authority (which Initiative 42 would remove), the more specific phrase, "upon such conditions and limitations as the Legislature may prescribe" may be unnecessary. It is unclear why legislators deleted this phrase. They might have simply been attempting to remove a redundancy, or they might have sought to identify something in Initiative 42 to which they could agree, since Initiative 42 also removes this phrase.

Technically, this Alternative focuses on the school "system," not on schools. (Initiative 42 does the same.) Why legislators chose the phrase "effective system" rather than "effective schools" is not clear. Perhaps they were simply using a phrase similar to the one used in Initiative 42. Hopefully, this distinction is truly is a technicality, and the effectiveness of the system would be judged by the effectiveness of the schools, but there is no guarantee of that. For instance, if viewed from a bureaucratic perspective, it is possible for a "system" to be deemed effective even if its components are not. (For example, under the Department of Education's former classification of school achievement - before districts were graded A through F - some districts were labeled "Successful" even though they had no schools in their district classified that highly.) How a court would rule on that is unpredictable.

The unpredictability of how a court would rule - next year or 20 years from now - is one of the reasons for caution in considering any Constitutional amendment.

Similarities and Differences between Initiative 42 and Alternative 42A

Initiative 42 and Alternative 42A both call for support of a "system" of free public schools. Initiative 42 calls for "adequate and efficient" system; Alternative 42A calls for an "effective" one.

The Initiative 42 petition expresses its sponsor's opinion on the definition of "adequate and efficient," where adequate would be defined only by the level of funding, starting with the current funding formula for the Mississippi Adequate Education Program (MAEP), and an efficient education would be "one that will, among other things, enable Mississippi's public school graduates to compete favorably with their counterparts in surrounding states" (emphasis added). It is unknown whether a court would adopt the sponsor's definitions, or whether a current or future court would be bound by such definitions. The phrase "among other things" is dangerously open-ended, allowing the chancery court judge total discretion to define "efficient" however he or she pleased. Because Initiative 42 removes the legislature's authority to provide for schools "by general law," the legislature would not likely have the authority to define those terms.

Alternative 42A has no definition of "effective," but as with most Constitutional provisions, the legislature would have the authority to define that term, because 42A would retain legislative power to define that term in a "general law." Still, this would likely be the subject of much litigation.

Initiative 42 removes all three references to the legislature or its authority in Section 201 of the current Constitution. Alternative 42A removes only one.
Initiative 42 replaces "Legislature" with "State"; it deletes the legislature's authority to provide for schools "by general law"; and it deletes the authority of the legislature to set the "conditions and limitations" for how taxpayers' money is to be spent in the schools. Alternative 42A removes only the "conditions and limitations" clause. Because 42A would retain the legislature's authority to provide for schools "by general law," it is likely that the "conditions and limitations" clause is redundant, since a general law is where "conditions and limitations" may be established.

Initiative 42 would transfer power over schools from the legislature to a chancery court judge in Jackson (or some other location if the legislature were to change the current law on jurisdiction for cases against the state). Alternative 42A retains the power in the legislature elected by voters throughout the state.

After removing the power from the legislature, as described above, Initiative 42 expressly grants the power to "the chancery courts of this state" to enforce this newly revised section of the Constitution. Because our current law specifies that a case against the state must be filed in Hinds County, the practical effect of this provision of Initiative 42 is that a judge in Jackson would determine how much and how taxpayers' money would be spent on public education. Even if the legislature changed the location for filing such cases (which would make little sense), the point would remain the same: a small number of voters in one county would choose, in effect, an education czar to dictate the actions of the legislature - and the state department of education AND the local school districts - because of his or her unfettered power over the school "system." (See our full analysis of Initiative 42 for further explanation.)

Initiative 42 establishes a "fundamental right" to "educational opportunity" for "each child." Alternative 42A does not.

As mentioned above, caution is critical before enacting Constitutional amendments. But an extreme abundance of caution is required when establishing a fundamental right, as it invites the enormous danger of unintended consequences. Initiative 42's sponsors define this as a right "through 12th Grade," with no beginning. This could be interpreted as a right to a government-provided "education" beginning as early as birth. As extreme as that sounds, it is clear from recent court rulings that ideas which were once considered extreme can become Constitutional rights in only a short time. Such a "fundamental right" could be interpreted by some courts to supersede parental rights.


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