Would Universal School Choice be Unconstitutional in Mississippi?

By Douglas Carswell
October 9, 2023

Mississippi could soon be surrounded on three sides by states that have school choice. Arkansas has already passed legislation establishing universal education freedom. Alabama and Louisiana may not be far behind.

Might we see something similar in Mississippi?

Speaking on SuperTalk the other day, Lieutenant Governor, Delbert Hosemann, sounded wonderfully upbeat about school choice. He said that he expected there to be “multiple school choice bills” presented during the 2024 state legislative session.

However, Mr Hosemann then suggested that any such reform may need to be restricted in its scope. Why? Because he said, under Mississippi’s constitution “you can’t put government money into private schools”.

The Lieutenant Governor raises an important point. As the case for universal school choice becomes increasingly difficult to ignore, we need to examine what Mississippi’s constitution actually says. Does our state constitution really preclude Mississippi from implementing Arkansas-type reform?

Section 208 of the Mississippi Constitution states that:

“No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school, or to any school that at the time of receiving such appropriation is not conducted as a free school.”

It could not be clearer, opponents of school choice will say. No public money can be appropriated for private schools.

Except, of course, with Arkansas-type school choice, public money is not appropriated for private schools. It is appropriated to families, who receive 90 percent of the prior year’s net public school aid budget paid into their child’s Education Freedom Account. This they can then spend on a school of their choice, public, private or home school.

Claiming that under such a scheme money is being appropriated to private schools would be like claiming that part of your wages are being appropriated to Target, simply because you chose to spend some of your salary there.

Fortunately, it turns out that the argument that Mississippi’s constitution prevents universal school choice is not a slam dunk after all.

In his interview on SuperTalk, the Lieutenant Governor was also quite right to refer to a case currently before the courts concerning the use of pandemic relief funds paid to private schools.

During Covid, large sums of federal money were provided to states like Mississippi to distribute to eligible recipients for disaster relief and to spur economic recovery. The Mississippi legislature, in turn, authorized a state agency to distribute about $10 million of those federal funds to private schools for infrastructure improvements.

This prompted a legal challenge brought by the activist group Parents for Public Schools, who argued that Section 208 made such payments unconstitutional. A Hinds County chancellor agreed. The Mississippi Supreme Court is now reviewing the case on appeal.

What if the Supreme Court rules that it was unconstitutional to give $10 million of pandemic relief funds to private schools? Would that mean Arkansas-type school choice is now considered unconstitutional in our state, as Mr. Hosemann seemed to imply?

Not at all. In fact, MCPP’s legal arm, the Mississippi Justice Institute, recently addressed that very question in the pandemic relief litigation. Teaming up with our friends at the Institute for Justice, we filed a “friend of the court” brief with the Mississippi Supreme Court to ensure the point was clear.

Here is what we told the Court.

Even if the Court ruled that the provision of $10 million in federal relief funds to private schools was unconstitutional, that decision would not prevent Mississippi from enacting school choice programs, including those available to families using non-public schools.

Why not? Because the Mississippi Constitution only prohibits the appropriation of state education dollars for institutional aid to non-public schools. It does not prevent the state from providing individual aid to students who choose to use those funds for tuition at non-public schools. Indeed, to avoid future confusion on that point, we asked the Court to explicitly say so in its ruling.

Moreover, as our legal brief points out, it is not just the text of the Constitution on our side. Precedent from the Mississippi Supreme Court supports our view as well. Over 80 years ago, the Court decided Chance v. Mississippi State Textbook Rating & Purchasing Board, 200 So. 706 (Miss., 1941). In that case, the Court upheld a law that appropriated funds to purchase textbooks and distribute them to students, including those in non-public schools. Why? Because the program was designed to benefit the students, not the schools.

Far from precluding school choice, Mississippi’s constitutional law is favourable to it.

There are plenty of legitimate (if misguided) arguments against having universal school choice in Mississippi. Claiming that the Mississippi Constitution prevents it is not one of them.

In every single one of the half dozen US states that have now adopted school choice, there was a legal challenge to try to prevent it from happening. There will no doubt be legal challenges to school choice when – not if – it eventually happens here. The fact that such cases will be brought against universal school choice is not a case against passing legislation to allow it.


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