Thick with irony is the Midsouth Association of Independent Schools’ contention that the provision of the Mississippi Constitution plainly stating that public funds cannot go to private schools should be ruled invalid by the courts because of its racist origins.

Perhaps the schools that make up the association should look in the mirror. Many, but not all, of the 125 Mississippi private schools in the association trace their beginnings to the 1950s and 1960s and their founders’ objections to the school desegregation mandated by federal courts. The Midsouth Association of Independent Schools previously was known as the Mississippi Private School Association, which was started in the 1960s by parents and others who did not want white Mississippians to go to integrated schools.

That nugget of truth was omitted by Buck Dougherty, an attorney with the Chicago-based Liberty Justice Center, in arguing last week before the state Supreme Court that Section 208 was enacted as part of the 1890 Constitution for racist reasons and thus should be ruled invalid. Dougherty was making his ironic argument on behalf of the aforementioned Midsouth Association of Independent Schools, which in 2022 received $10 million in public funds now in question before the state’s high court.

Dougherty said in a news release that Section 208 of the Mississippi Constitution “targeted independent schools that dared to teach Catholic immigrants and newly freed slaves to read and write, and there’s no way to sidestep that ugly past. Ultimately, the tension between this discriminatory provision in Mississippi’s Constitution and the U.S. Constitution has been festering for a century, and the Court must resolve that tension.”

It is true that Mississippi is one of more than 30 states with so-called Blaine Amendments that were passed in an effort to keep public funds from going to Catholic schools. But Mississippi is unique in that it is one of only two states with a constitutional provision that prevents not only public money from going to religious or sectarian schools, but also to any school “not conducted as a free school.”

Let’s give the Midsouth Association of Independent Schools the benefit of the doubt. It could be argued that most of the private schools today do not discriminate against Black Mississippians. It also is a fact that Section 208 of the constitution does not cause discrimination against minority students, considering that Black students and other minority groups make up a slim majority of the about 440,000 students in the public schools and white students compose the overwhelming majority of the about 45,000 students attending private schools in Mississippi.

In other words, it is difficult to claim, as the Liberty Justice Center is attempting to do, that the state constitution, which prevents public funds from going to private schools, discriminates against Black students since a narrow majority of public school enrollment is composed of Black and minority groups, while the vast majority of private school enrollment is white. The plain and simple fact is that public money going to private schools is going to majority white schools, while public money going to public schools is going to majority-minority schools.

Perhaps the Midsouth Association of Independent Schools and Section 208 of the state constitution have something in common — maybe they both were created with racist intent, but neither is racially motivated now.

The current lawsuit is not the first involving public money going to private schools and Section 208 of the Mississippi Constitution. In 1964, during the height of efforts to circumvent federal court orders to desegregate Mississippi public schools, the Legislature passed a law that offered tuition for students to attend private schools in clear violation of Section 208.

The U.S. 5th Circuit Court of Appeals found that law unconstitutional in 1969. The federal court said that the “tuition grants have fostered the creation of private segregated schools. The statute, as amended, encourages, facilitates, and supports the establishment of a system of private schools operated on a racially segregated basis as an alternative available to white students seeking to avoid desegregated public schools.”

The ruling pointed out that when the Mississippi law was enacted, there were three non-sectarian private schools in the state. But three years later, thanks in large part to the tuition grants and the efforts to avoid integrated schools, there were 45.

If someone doubts the findings of the 5th Circuit, look at the website of the Midsouth Association of Independent Schools. It points out that the formation of the Mississippi Private School Association, which later changed its name to the Midsouth Association of Independent Schools, was precipitated in large part because of that 5th Circuit court ruling.

“That lawsuit, as well as other seismic political and social revolutions in states and communities orchestrated at the federal level, motivated a group of men to meet in Greenwood, MS, and there to draw up a draft of bylaws and a charter of incorporation for the Mississippi Private School Association,” according to the organization’s own website.

Pot meet kettle.

This analysis was produced by Mississippi Today, a non-profit news organization that covers state government, public policy, politics and culture. Bobby Harrison is Mississippi Today’s senior Capitol reporter.

Read more at https://mississippitoday.org/