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Initiative 42 & Alternative 42A: Proposed Constitutional Amendments

Regarding Public Schools


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 years
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 Initiatives 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 Initiatives 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., Mississippis Constitution currently does not require that children be provided an adequate
education, only a free one.
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[BSBJ Response, continued] 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 BSBJs 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, BSBJs 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 BSBJs 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: BSBJs statement about whether a lawsuit in chancery court can
include damages is not accurate. For example, the states 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 Judges 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 lowperforming 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: Theres no fear-mongering. Its simply the truth. BSBJ offers no
dispute as to the potential outcomes we listed. We arent 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 doesnt 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 thats 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 ballots
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.
The Initiatives title appears on the ballot in the form of a question that is supposed to describe the
amendment. But 42s 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.
BSBJs contention that the legislature would retain 100 percent discretion is addressed in items 1 & 5.

5. What Would Be Left of the Legislatures 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 legislatures 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 Alternatives 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 Educations 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 sponsors 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 sponsors 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 legislatures 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 legislatures 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 legislatures 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 42s 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.