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Appeals Court Revives Mississippi Suit Asserting Federal Right to Education

By Mark Walsh — April 07, 2020 5 min read

A federal appeals court has revived part of a lawsuit that raises a novel claim to a federal right to education by asserting that Mississippi’s lack of a “uniform” education system violates the 1868 federal law that readmitted the state to the Union after the Civil War.

Under the Mississippi Readmission Act passed in 1870, Congress imposed conditions on the former Confederate state, as it had with similar readmission laws for other states, including “that the constitution of Mississippi shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the constitution of said state.”

In 1868, Mississippi adopted a new constitution that required the state legislature to establish “a uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years.”

The state amended its education clause four times since then, with the current language, adopted in 1987, calling for “the establishment, maintenance and support of free public schools upon such conditions and limitations as the legislature may prescribe.”

The plaintiffs in the suit, a group of African-American women whose children attend poor schools Jackson and Yazoo City, Miss., assert that the removal of the uniformity clause has caused significant disparities in the educational resources, opportunities, and outcomes for Mississippi children based on their race.

Their lawsuit against various Mississippi officials, backed by the Southern Poverty Law Center in Montgomery, Ala., seeks a judgment that the current education clause of the state constitution violates the federal Readmission Act, and that 1868 constitution’s uniformity clause remains legally binding on state officials.

A federal district court dismissed the suit on the grounds that it was essentially filed against the state, which had sovereign immunity.

In an April 2 decision in Williams v. Reeves, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, unanimously reinstated the claims in the suit based on the Readmission Act, but it said it could not revive the claim that the 1868 education clause was still legally binding.

“Because this request impermissibly asks a federal court to instruct state officials on how to conform their conduct to state law, it is barred by” Supreme Court precedent, the appellate court said of the second claim.

But the 5th Circuit’s ruling on the first claim is significant, legal observers say. It recognizes a theory of a federal right to education that derives from recent work by a number of academic thinkers.

Kimberly Jenkins Robinson, a law professor at the University of Virginia, published a book late last year that examines recent scholarship and legal activity surrounding the issue. A Federal Right to Education: Questions for Our Democracy looks at, among other cases, suits filed in Michigan, Connecticut, and Rhode Island that are based on claims of access to literacy, liberty, and civics education to become capable citizens. (She discussed it with Education Week’s Daarel Burnette II in January.)

Derek W. Black, a law professor at the University of South Carolina, has a chapter in Robinson’s book, and has written more extensively about the potential of federal right of education claims involving the Southern states readmitted to the union.

In particular, for Texas and Virginia in addition to Mississippi, Congress adopted similar language requiring that as a condition of their readmission, their state constitutions could not be amended to deprive their citizens of the school rights and privileges included in those state charters.

“By the end of Reconstruction, Congress made explicit what had been implicit all along: Education was a condition of readmission. Moreover, education was a condition because education was central to a republican form of government,” Black wrote in a 2018 article in the Stanford Law Review, “The Constitutional Compromise to Guarantee Education.”

Black, in an interview, said he was encouraged by the 5th Circuit’s decision in the Mississippi case. The plaintiffs’ case is a narrow version of the theory he laid out in his Stanford article, he said.

“But I read the [5th Circuit] opinion to affirm that this is a valid theory, that [the plaintiffs] can enforce the [federal] readmission provision,” Black said. “I found it to be an important first step to unlocking the door to the constitutional theory that I lay out in my paper.”

Black has a book coming out in September that will expand on his theory of a federal right, called Schoolhouse Burning: Public Education and the Assault on American Democracy.

Black said he was heartened that the panel was unanimous and had little trouble concluding that the plaintiffs suit could go forward on the theory that Mississippi had backtracked on the guarantee of a uniform education from its 1868 constitution.

“What the 5th circuit is saying is there was a deal cut for education, and you need to provide for it in your constitution,” he said. And by extension, under the terms of the Readmission Act, the state could not backtrack.

A spokeman for the Mississippi attorney general’s office, which is defending the officials named in the suit, said he was checking with lawyers who worked on the case for any reaction.

In a brief filed with the 5th Circuit, the attorney general’s office argued, among other things, that there is no private right to sue to enforce the Readmission Act and that the plaintiffs are seeking to have a federal court order state officials to “conform their conduct to state law as it was in 1868.”

The brief says “there is always room for improvement” in education “in Mississippi, but this court should not entertain [the plaintiffs’] attempt to refashion Readmission Acts into privately-enforceable mandates prohibiting states from amending their constitutions.”

Pending further appeals, the SPLC’s suit will return to a federal district court for additional proceedings. The suit alleges that because of the lack of the uniformity requirement, the plaintiffs’ children attend schools that are 95 percent African-American in enrollment, with 95 percent eligible for free or reduced-price lunch. Fewer than 11 percent are proficient in math and reading, and the schools are rated D by the state education department.

The suit does not specify a remedy beyond the declaratory judgment that the state has violated the Readmission Act.

Christine Bischoff, a senior staff attorney with the SPLC, said in a statement that the 5th Circuit’s decision allowing the case to move forward “is welcome news for families impacted by Mississippi’s violation of the Readmission Act and establishment of a shockingly disuniform public school system that greatly disadvantages African-American students.”

A version of this news article first appeared in The School Law Blog.


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