Initiative 42: The (Supposed) Legal Implications

“The power of real debate is in the language and intellectual honesty of the debaters…”
-Ruzwana Bashir

I am not a lawyer.  I am not a paralegal or even a law school dropout.  In fact, I did not even stay at a Holiday Inn Express last night.  However, there are some things about the law that I believe many of us are able to sort out using logical thinking and looking at legal precedence.  Perhaps it is this general love of honest logical thinking that makes me find it irritating when those who might technically have a law degree (although judging from the personal injury commercials on television simply having such a degree may or may not really be that big an accomplishment) attempt to use it to imply that even the most outlandish, untrue assertions somehow have merit simply because a lawyer stated them.  While I have tremendous respect for those who have completed the course of study to obtain a law degree, such a degree does not necessitate the person is correct or even being intellectually honest in his or her arguments or opinions.  Today, I read an article by an attorney who was attempting to make the case that Initiative 42 was nothing short of being “Pandora’s box” ready to unleash evil upon the great state of Mississippi and its unsuspecting public.  I have heard some of the same points from the article being used by some lately as factual and the basis of their issues with Initiative 42.  While I in no way mean to cast doubt upon the character of the individual doing the writing, the more I read, the more I found the article so full of faulty logic, half-truths, and fear mongering examples that I thought its “arguments” worthy of a response, even from an untrained legal mind such as my own.

The first terrible consequence the author points out is in the Initiative 42 phrase, “To protect each child’s …”  According to those using the article’s logic, this use of the verb protect in the proposed state constitutional amendment would immediately invoke the dreaded 14th Amendment of the US Constitution since it guarantees, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  The argument made is that, since the 14th Amendment of the US Constitution gives equal protection to all persons whether citizens or not, Initiative 42 would cause our Mississippi Constitution to give even illegal immigrants the right to a public education!  The article first states, “nothing about this amendment would prevent a principal or teacher from reporting undocumented students to Immigration and Customs Enforcement (“ICE”).”  Now, I can tell you for a fact that I doubt if anyone is more against illegal immigration than me.  I am all for anyone who comes to our country legally to live and work, but have never advocated being here illegally.  Additionally, I also respect the fact that many immigrants are here legally and outwork many of our native born citizens.  While I am against illegal immigration, I cannot imagine any principal or teacher reporting a child for simply enrolling at school into law enforcement.  Thankfully, to keep from anyone being placed in such a position no administrator or teacher is required by law to report any child enrolling in school to such law enforcement.  Of course, this is merely a matter of principle and has nothing to do with the main point the author goes on to make.  He follows with (as a consequence of Initiative 42 potentially being passed), “if a principal or teacher were to disregard a child’s lack of documentation, that child would be entitled to a free public education just like every other child in Mississippi.”  It seems clear from this statement that the author is plainly asserting that passage of Initiative 42 with its dreaded word of “protect” included would result in illegal immigrants being given a public school education (Gasp!).

The reason I am being facetious about the assertion of the author that Initiative 42 would cause the children of illegal immigrants to horrendously be able enroll in public school for an education is that this is now and has been the settled law of the land for the past, oh say, thirty years!  In 1982, the United States Supreme Court in the case of Plyler v. Doe held that children of illegal immigrants who themselves were not citizens of the United States could not be excluded from public schools.  In fact, in the majority opinion written by Justice Brennan the Court specifically cited (wait for it) the 14th Amendment as the basis of this decision! Quoting the majority opinion:

“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” (https://www.law.cornell.edu/supremecourt/text/457/202#writing-USSC_CR_0457_0202_ZO)

Wait, I bet the state in question (Texas) must have the dreaded “protect” word in its state constitution in regards to education?  No, there is no dreaded “protect” word at all in reference to education in the state constitution of Texas (http://www.statutes.legis.state.tx.us/Docs/CN/htm/CN.7.htm).  My friends, either the author is unaware of this landmark case which establishes that illegal immigrants are entitled to a public school education or there is a deliberate intent to mislead the reader by pushing the hot button issue of illegal immigration in reference to Initiative 42.  This would be akin to me saying for you not to vote for Donald Trump or abortion will be legal in every state, when I already know full well that abortion is already legal in every state!  Would such an assertion not be an insult to your intelligence, a falsehood on my part, or perhaps both?

The author and those using the same point go on to build upon this faulty foundation by referencing the subsequent text of the initiative referring to a “fundamental right to educational opportunity.” According to the author’s argument, this would potentially result in a stripping away of the autonomy by presumably the dreaded “one judge in Hinds County” to do such things as, according to the article, require a school district to build a “state-of-the-art physics lab” instead of having a “football program.”  Again, the author builds this house of cards argument based upon the fact that Initiative 42 would “create” this new right for all Mississippians including illegal aliens as opposed to our present time and situation where presumably there is no such right.  I will once again quote the settled law of the land in the Plyler v. Doe decision in reference to the state of Texas simply having a free public school system, “Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”  To summarize, the author is stating that presumably football would potentially be taken away as a result of Initiative 42 creating a “new right” to a public education in our state.  But, Mississippi is at present exactly like Texas in 1982 and already has a provision for a system of free schools, and the Supreme Court already ruled that in such a state a free public education is ALREADY A RIGHT in regards to 14th Amendment protection.  So why have we or Texas not already seen the courts make such decisions?  The argument simply does not hold water in light of existing law.

The author goes on to state that the proposed amendment with its language of “an adequate and efficient system” opens the door for the “judge” to potentially disband local school boards and districts all together!  Why?  Naturally, because it refers to “system” in the singular.  I mean, of course, this lack of an “S” on the end of “system” would open the door for any judge to make such a decision!  See, there it is, the conspiracy, all in that sneaky little singular word “system” that would allow the court to take this new part of the state constitution and wipe away boards, abolish districts, and by implication who knows what else because it now abolishes local autonomy by referring to our Mississippi schools officially in the constitution as a singular “system.”  Hmmmm….well let’s see.

I am quoting the constitution of our neighbor to the east Alabama in reference to education in their state constitution which currently says, “establish, organize, and maintain a SYSTEM of public schools.”  Ouch, those liberals in Alabama had better look out, with language like that added to their state constitution there are bound to be such decisions ending football and eradicating local districts.  But, wait…. it seems this language was added to Alabama’s constitution over 100 years ago! Yet, amazingly, they somehow do not have state judges eradicating local districts or abolishing local school district’s autonomous decision making.  Then of course there is Alaska’s constitution’s wording, “general law establish and maintain a SYSTEM of public schools open to all children of the State.”  It seems Arizona is apparently twice as likely to have their whole system eradicated at any moment because for quite some time it has read, “shall provide for the establishment and maintenance of a general and uniform public school SYSTEM, which SYSTEM shall include.”  Arkansas reads, “the State shall ever maintain a general, suitable and efficient SYSTEM of free public schools.”  California, “provide for a SYSTEM of common schools.”  Colorado, “thorough and uniform SYSTEM of free public schools.”  Delaware, “a general and efficient SYSTEM.”  How about Florida surely with it being the state that apparently everyone in the upper levels of our Mississippi government wishes to emulate in regards to education surely has a simple, concise education section without the dreaded singular “system” or the convoluted language the proposed Initiative 42 would add to our own constitution, right?  I mean its constitution had to be worded in such a way not only to prevent some judge from obliterating its local districts and choosing football somehow over a physics lab, correct?  After all, Gov. Bush was able to work such magic with his reforms under the Florida Constitution so it surely must not have such wording, right?  Let’s see, Florida’s constitution reads, “The education of children is a fundamental value of the people of the State of 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 and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.” My friends, I daresay there is nothing in Initiative 42 that even comes close to Florida in its complicated wording or the guarantees it gives in regards to public education, and Florida does indeed include the ominous singular “system” as well.  I could quote many, many more state constitutions that all have the singular “system” (all can be viewed readily at http://pabarcrc.org/pdf/Molly%20Hunter%20Article.pdf) and surprise they all are somehow still able to exercise local autonomy in spite of the apparent “liberal power grab” that has somehow been happening undetected in some of these states since those “liberal” times of the late 1800’s and early 1900’s when many of these documents were drafted!  Again, is this simply an argument designed to scare us based upon our perceived ignorance and inability to apparently do a Google search in regards to the wording of other states’ constitutions?  Do such individuals think that we in Mississippi love football so much that somehow giving a football vs. physics lab analogy would cause us not to research the actual topic at hand and literally run out with pitchforks and torches to find the pro-Initiative 42 supporters like some sort of stereotypical football frenzied mob of rednecks?  Or have those who propose such scare tactics and have actually had the brazenness to put them into print honestly not even looked it up?  Regardless, the argument is blatantly false.

The final “legal” argument is also built upon the before mentioned faulty assertion that Initiative 42 somehow brings the 14th Amendment into play in education allowing all sorts of evil consequences, in spite of the fact that it is indisputable as demonstrated above that the 14th Amendment already applies to our public schools in Mississippi.  The crux of the argument concedes that the Chancery Court decision on any subject can be appealed through various other courts and ultimately to the Mississippi Supreme Court.  However, the proposed issue is that the appellate courts “typically do not rehear the cases.”  It is further proposed that the only thing the appellate courts and ultimately the Mississippi Supreme Court “usually look at the record to see if the chancellor abused his or her discretion in making the decision.” Apparently, this fact is supposedly something to scare us by, I suppose, suggesting that the “one judge” will not be overturned when he takes over the schools on his mad path to power based upon the supposed singular “system” and the “new” fact that the 14th Amendment actually applies to public education of children.  However, the author says absolutely nothing that is inaccurate and at the same time states absolutely nothing that suggests anything out of the ordinary happens in these appeals cases versus any others that our appellate courts engage in and sometimes overturn decisions in every year.  Yes, the appeals courts and the Mississippi Supreme Court “usually” do not rehear cases; they “usually” look at the testimony given, evidence presented, and the law to see if they agree with the lower chancery or other lower court decision.  Most of the time, they do agree and do nothing.  But, sometimes they do not agree and hear or take action on the case.  I do not know what exactly is supposed to be scary or ominous about this.  Sometimes the higher court might also look at what the lower judge decided and will send the case back down (remand) to the lower court judge to be reheard with some new instructions as to how the judge should proceed. Other times the higher court will disagree with the decision altogether and make a new ruling after a hearing.  There are many other ways in which the court might choose to act or not to act in regards to a case that is appealed.  Yet, somehow the author is attempting to lead us to believe that without a rehearing of the case the court will not act against some implied dreaded ruling by the “one judge in Hinds County?”  Does the author expect us to believe that the United States Supreme Court does not significantly alter lower court decisions while it too does not typically “rehear” the cases?  The job of the higher court is to review and then if a problem is found take some action as might be warranted.  This process is nothing new, yet has been the process that resulted in all of the famous US Supreme Court cases we know by name.  The author presents no real evidence to back up his implied assertion that somehow the higher courts’ “hands will be tied” and they will be incapable of overturning some outlandish decision by the “one judge” presumably getting rid of football or some other radical act of judicial activism.

Perhaps we should look at an example of how our elected Mississippi Supreme Court might overturn an elected Chancery Court on appeal to demonstrate how minute the disagreement with the lower courts might truly be in cases where all or part of a Chancery Court’s decision is overturned.  Take the following case of Cuccia v. Cuccia (http://courts.ms.gov/Images/Opinions/CO77325.pdf), where the Mississippi Supreme Court overturned part of a ruling and affirmed other parts.    Here is a quote from the decision with an example of how the court was able to act on a Chancery Court decision which the Court of Appeals has already reviewed, “The judgment of the Court of Appeals is affirmed in part and reversed in part.  On remand, the chancery court is instructed to determine the demarcation date for dividing marital property, consider marital debt in that division, consider whether alimony is appropriate after making that division, reevaluate the custody matter, and craft an appropriate custody arrangement with the best interest of the children in mind.”  Does this sound like an appeals process in which the higher court has its hands proverbially tied in regards to changing the decision?  Did they technically rehear the case or did they simply review the information and remand it back to the lower court?  Did this action not have extremely significant changes to the Chancery Court’s decision?  Perhaps we should also look at one of the areas in which they reversed the lower court to see if it has to be some sort of unreasonable abuse of power for the higher court to become involved as, I suppose, the author must be implying is the case with appealed Chancery Court decisions.  In reversing the Chancery Court ruling, the Mississippi Supreme Court states, “we agree with the Court of Appeals that the chancery court erred by not issuing an injunction (i.e. the scary “injunctive relief”) against Julie Anne, restricting the number and size of any dogs she may have in her residence with the children.  The chancery court’s order is devoid of any consideration regarding the children being around the dogs that Julie Anne sometimes has in her home through her dog-rescue operation.  Accordingly, we agree that the chancery court must revisit this issue and make findings that are in the best interest of the children.”  Wow! The Supreme Court certainly seems to have its hands tied unless the Chancery Court judge abused his or her power.   My friends, they literally told the lower judge to change the decision because they thought having a lot of dogs in the house due to an animal rescue operation was worthy of injunctive relief.  I will simply stop there as I really do not think I can add anything to that example.

In summary, real debate and research is something to be desired and something which is necessary for a democracy to work.  While I disagree with those making the arguments mentioned above or even publishing them, I do not know their intent.  But, this need for honest debate is especially true when considering a change to the law in regards to an issue of such vital importance as adequate funding for the education of our state’s children.  The legislature long ago defined the amount of this funding and there seems to be an all-out effort in place to make sure that this funding continues to be diverted to other pet projects and pet tax cuts instead of educating our children.  This is the reasoning behind Initiative 42 and why it was placed on the ballot by the common everyday people of Mississippi (over 200,000 of them).  In this effort, honest discussion based upon facts is extremely important.  However, it is disappointing when in place of such honest debate we end up with arguments being made which use false information that is at best ill informed and at worst misleading which also conveniently manage to bring in every hot button issue from school consolidation to illegal immigration and even to threatening the existence of high school football!  I hope that the information here has cast some light on the way in which the battle is being waged against this initiative, and how, in my opinion, good and honest Mississippians are being manipulated to think that this is an epic struggle against good (continuing to underfund education) and evil (passing an initiative to make the legislature follow its own funding law).  When, in fact, it is simply a question of having a lot of money and a group of people wishing to continue to spend hundreds of millions as they please rather than how the law requires it to be spent in the education of our young people in the schools which need it.  Again I simply hope that we all might ask ourselves the question, regardless of the individuals’ who make these arguments intent, if these are the type falsehoods and scare tactics being used by those opposed to Initiative 42 instead of facts, what does it really say about the merits of their position?

-Clint Stroupe

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