There is little in the entirety of my life – yea, short of
my faith in Jesus Christ, I dare say nothing – that I have ever supported and
believed in as much as I support and believe in public education. I spent twelve
years in Mississippi public schools, followed by four more years in MS public higher
education. My father spent that much or more as a public school educator, later
going on to become the President of the local school board, followed by a stint on an advisory committee to the state Board of Education. My son is in his
6th year of Mississippi public schools; my continued residence in
Oxford is premised in large part on the quality of the public education system.
But even deeper than my own and my family’s participation, I’ve always held a
deep-seated belief that the very foundation of our free society depended upon the
public education system, the idea that it is there for our consumption, and the
knowledge that our abandonment of it would ultimately destroy it and the future
it promised for every citizen.
That belief could encompass its own dissertation, but for
today, it is the reason that I have dedicated many hours, days, weeks, studying
the potential of amending our state Constitution for education’s sake through
Initiative 42. My study has been independent of political influence, but rather
is based on the text of the Initiative(s) (42 and 42A), the text of the MS
Constitution, my own legal education, and the facts and history of our current
(and past) legislative bodies, as documented in the public record. In other
words, I didn’t just go take talking points from the “pro42” and “anti42”
webpages as the basis of my opinions; I have done my own homework and put
together my own position.
My desire is to address the concerns and misconceptions that
I have seen voiced, as well as issues that seem important to my understanding.
I hope to do this in language that every voter can read and understand, because
I believe that confusion and rhetoric are currently ruling the day.
Before I delve into the issues, one at a time, a few preliminary
matters of importance:
- This is NOT a partisan issue. I have friends on both sides of the aisle who support, and friends on both side of the aisle who oppose. In addition, the MS Legislature has failed to fund the Mississippi Adequate Education Program (MAEP) during both Republican AND Democrat reign. Rather, this is (quite sadly) a POLITICAL matter. Politicians of all variety putting their own projects and/or the projects of their backers in a place of higher importance than our children and the future of our State.
- Initiative 42 was sponsored by Luther Munford. Luther has undergraduate degrees from Princeton and Oxford (England) University and a law degree from the University of Virginia. Before returning to Mississippi to devote his life to the practice of law in our state (almost 40 years, to-date), he clerked for the United States Supreme Court and the United States Court of Appeals for the Fifth Circuit (the federal appeals court that covers the state of MS, along with LA and TX). He is not only a brilliant attorney; he is a very thoughtful and articulate one as well. There are few people, if any, whom I would choose over Luther in drafting such an important initiative.
- I have said this before, and I will reiterate. I wish that this was not an issue. I wish that the lawmakers in our state would follow their own law (MAEP), passed by them in 1997. However, in the past 18 years, that has only been done twice. Which brings us to today. My very fervent hope, despite whatever becomes of Initiative 42, is that each of us will more carefully select our Senators and Representatives going forward, and that we will put into office those individuals who realize that funding education is the springboard from which all great things in our state will come.
The push by proponents and supporters of Initiative 42 is to
“fully fund education.” And of course, who wouldn’t want to do that, right?
(Don’t answer that.) However, the opponents are quick to point out that the
proposed language of the amendment to the MS Constitution mentions neither
funding nor MAEP. THIS IS TRUE.
This is by no means, however, a
deal-killer. Have you ever read the MS Constitution? I mean, the whole thing,
beginning to end? I’ll be honest. I’m pretty sure I had not before last month,
even through three years of law school. But I have done so several times
recently. If you’re interested, you may find the full text of it here. My point is this: the Constitution makes big-picture provisions. In general, it
doesn’t mention specific laws or state programs. There is a reason for that:
the Constitution leaves to the Legislature the ability to enact (and repeal) laws
that will fulfill the objective of the Constitution. When that provision is enforced in a court of law, the judge can look to the "framework language", the MAEP itself, or any other "clues" that might help them to interpret and enforce the law. Judges do this every day, with every statute or constitutional provision that is interpreted.
So what does this mean? In sum, it means this: It is not
unusual at all that the language of the amendment doesn’t mention funding MAEP.
The language proposed by Initiative 42:
Section
201: Educational opportunity for public school children
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.
This amendment simply mandates that the State provide an “adequate and efficient” public school system. Not exceptional, but adequate. Something that we would expect would already be mandated, no? Many other (higher-ranking-in-education) states already do so in their constitutions. In Georgia, "The provision of an adequate public education for the citizens shall be a primary obligation of the State of Georgia". In Florida, "It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education". Idaho requires that it shall be the "duty of the legislature of Idaho to establish and maintain a general, uniform and thorough system of public, free common schools." In Montana, "Equality of educational opportunity is guaranteed to each person of the state."
You can read all 50
states' language here.
But, this allows for
a chancery court to enforce, right? Yes. However, this isn’t the judicial power
grab that the Chicken Littles are fretting over. Although the amendment itself
doesn’t specify what “adequate and efficient” means, the framework submitted
with the Initiative language, coupled with the current law (MAEP) provide a
chancery judge with more than enough information from which to make an
appropriate ruling. In other words, the judge can look at the law already passed, and the wording submitted with the Initiative to determine whether the Legislature is doing what they are supposed to be doing. Injunctive relief, by its very definition, simply orders a
party to do that which it is already required to do (for example, in this
instance, requiring the legislature to fully fund education, as they ordered
themselves to do under MAEP in 1997).
Just today, I heard
Governor Bryant say that Initiative 42 would “take power away from elected
officials in the House and in the Senate and give it to a judge in Hinds County.”
This is simply not true. The Legislature enacted a law in 1997 (MAEP) that ordered
them to do a particular act (fully fund education). Initiative 42 simply holds
them accountable for following the law that they enacted. A Constitutional
amendment in no way takes legislative power away from elected officials; the
House and Senate are still fully empowered to make and pass laws to comply with
the Constitutional requirement that they provide an “adequate and efficient”
system of public education. In addition to the power of enacting and enforcing
laws, they also have the power (and will still have the power under Initiative
42) to repeal any law that they feel is not a viable solution for provision of
an “adequate and efficient” educational system. Thus, any argument that “MAEP
is just not a viable piece of legislation” is easily remedied by repealing
(and/or amending) that legislation.
Lots of folks are
concerned that this “liberal Judge in Hinds County” will make all sorts of
crazy rulings: taking money from Oxford and sending it to Mantachie, sua sponte
consolidating Hattiesburg and Oak Grove school districts, etc. Y’all. Come on.
When did we get to the point that we truly believe elected Judges wholly
abandon their duties and oaths for some crazy agenda? Not only are these fears
unreasonable, they are offensive to our judiciary. In the first instance, there
are four chancellors in Hinds County. Random case assignments dictate that any
of those four might be assigned a particular case. IF, and that is a huge IF, a
particular judge assigned decides to “go rogue” and not only order something
other than pure injunctive relief (as dictated by the Constitution), but begin
to create law on his/her own, that decision would most certainly be appealed to
the Mississippi Supreme Court, a body of (at least for now, rather
conservative) judges elected from all corners of the state.
Additionally, many of
the naysayers are convinced that Initiative 42 will serve only to pad the
pockets of the trial lawyers. If anything, the proposed language restricts
that. As stated in the language, the amendment vests jurisdiction in the chancery court to enforce with injunctive relief. I’ve never
known a lawyer to get rich by practicing in chancery court. The MS Trial
Lawyers Association has not given a penny to the campaign to adopt Initiative
42. Trial lawyers, in general, get rich from the deep pockets of corporate
defendants, and usually as a result of punitive damages assessed to those deep pockets.
There are no deep pockets here, nor are there punitive damages in a case such
as this. There will be no lawyers getting rich off of a case pleading our
elected officials to follow the law.
In addition, the
right to sue the legislature to fully fund education was not created with
Initiative 42! In 2014, Ronnie Musgrove filed a lawsuit on behalf of 14 MS
school districts requesting a chancery court require the legislature to fully
fund MAEP. Unlike the framework provided with I42, which suggests a 10-year
phase in of funding, that lawsuit, if it had resulted in a favorable ruling to
the school districts, would have required immediate full funding of MAEP,
producing a much harsher result for our state coffers.
And finally, (and
most importantly to me personally), let’s talk about where this money is coming
from. Many people are concerned that funding education will detract from other
things. This is absolutely true. For a few years, some matters may get less
funding than they have in the past. Many of those matters (like education,
should 42 be adopted), have protection in the Constitution. Those things will
not be underfunded to the point of failure. Even more of those matters,
however, are the projects of those who hope to defeat 42. Tax breaks for
corporations, business incentives, agendas that fund their reelections. These
aren’t bad people; they don’t hate our schoolchildren or want our schools to
fail; they just believe that the status quo is acceptable. I disagree.
I firmly believe (and
this is played out in other communities around our country) that if we
concentrate on improving our public school system, the economy, the job market,
the things that matter will follow suit. I believe that there are very few ills
that cannot be cured with a more valuable education.
I do agree that “throwing
money at a problem” is not always the best solution. I’ve seen the materials
discussing per-student spending, and rankings, and their correlation. I agree
that there are teachers and administrators who just do not care, and all the
extra money in the world probably won’t change that. BUT: for every teacher or
administrator that “doesn’t care”, there are a half dozen or more who are
buying supplies out of their own pockets, emailing parents at 9pm because they
are concerned about a kid who had a bad day, asking their friends and
colleagues on Facebook for help on how to explain a term paper without an
appropriate library and no internet access for students. These are the heroes
and the sufferers. If we want to attract more heroes, we have to SHOW them that
we care. Our legislators are our voice to the outside world; if they show the
world that education is the paramount concern, that teachers are more important than tax breaks, and children are more valuable than corporations, it will only attract the
educators and administrators who are like-minded.
