BOBBY HARRISON: Could constitutional issues arise form charter school law?

By Bobby Harrison/NEMS Daily Journal

JACKSON – Many believe language in the Mississippi Constitution would prevent the state from developing a voucher program to pay tuition for students to attend private schools.
The language is Section 208 of the Constitution, which reads in part “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.”
Section 208 of the Mississippi Constitution is generally referred to as the Blaine Amendment, and similar language can be found in 36 state Constitutions, according to a 2007 report by the U.S. Commission on Civil Rights. According to various accounts, the amendment dates backs to the late 1800s as the growing number of Catholic immigrants coming to the United States began to start their own schools because of their dissatisfaction with the strong Protestant influence in the existing schools. The amendment was designed to ensure Catholic schools did not receive any public funds.
Many now do not see the Blaine language as an attack on Catholicism, but simply as a roadblock – for better or worse – preventing public funds from going to private entities.
Louisiana is one of the few states in the nation that does not have similar language in its state Constitution. Yet, the Louisiana Supreme Court by a 6-1 ruling has found that state’s school voucher program unconstitutional.
In essence, it appears the court found it unconstitutional to take money earmarked to fund Louisiana’s public school funding formula and direct it toward private schools.
This past session Republican Gov. Phil Bryant tried to get around any constitutional issues by proposing a program where people could receive state tax credits by making donations to a scholarship program to pay for private school tuition.
Bryant predicted that the program would withstand any court challenge because it did not appropriate directly to private schools, but instead, in essence, collected less money for the state by rewarding people who helped to send children to private school.
Whether that proposal would withstand a court challenge is a battle for another day, since the Legislature rejected the governor’s Opportunity Scholarship Program.
Another substantial change to the state’s educational system, supported by Bryant and the Republican legislative leadership, did pass during the 2013 session and will be enacted during the coming months.
The Legislature passed a comprehensive charter school law that allows public funds to be spent on charter schools that do not have to adhere to many of the guidelines and governance of traditional public schools. In return, the schools agree to a charter to meet certain goals.
On the surface, there does not appear to be any legal issue surrounding charter schools. The Legislature also created a whole new state agency – the Mississippi Charter School Authorizing Board – to oversee and to approve charter schools, which also does not appear to create any legal issues.
It is of interest to note, though, that the state Board of Education is one of the only boards established in the Mississippi Constitution. Most boards and commissions that oversee state agencies are created only in law – at a lower level than the Constitution.
But the Board of Education and the Board of Trustees of state Institutions of Higher Learning, notably, are created in the state Constitution.
The Constitution states specifically that the Board of Education “shall manage and invest in public schools, according to law,” and “formulate policies according to law” for the public schools.
Could it be argued that since the Authorizing Board will be managing money and setting policy for charter schools, which have been described as public schools, that it is usurping the constitutional authority of the Board of Education?
That could be an issue for the courts to decide here in Mississippi at some point.
BOBBY HARRISON is the Daily Journal’s Capitol Bureau chief. Contact him at bobby.harrison@journalinc.com or call (601) 353-3119.