Midsouth Association of Independent Schools v. Parents for Public Schools was a challenge to a Mississippi program authorizing certain public funds to go to private schools.[1] On May 2, 2024, the Mississippi Supreme Court dismissed the challenge on standing grounds.[2] The ruling has implications for Mississippi standing doctrine and, despite the court not addressing the merits, is a reminder of state constitutional barriers to some forms of education policy.

In 2022, the Mississippi Legislature enacted legislation allocating federal funds from the American Rescue Plan Act (ARPA), which Congress had passed in 2021.[3] The ARPA gave funds to the states, requiring they be used for certain goals, most of which were related to the impact of the COVID-19 pandemic.[4] However, it also allowed the funds to be used “to make necessary investments in water, sewer, or broadband infrastructure” without a tie to the pandemic or its economic effects.[5] Mississippi’s resulting legislation allocated $10 million of these funds to be used for infrastructure investment and did so via grants to be made to private schools.[6]

Shortly thereafter, Parents for Public Schools—“a nonprofit organization founded . . . to help facilitate the engagement of parents and other community members in the improvement of public schools”—challenged the program in the Chancery Court of Hinds County, naming the Mississippi Department of Finance and Administration, the State Treasurer, and the State Fiscal Officer as defendants.[7] The complaint alleged that the grants to private schools violated Article 8, Section 208 of the Mississippi Constitution.[8] The section states in full: “No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school, or to any school that at the time of receiving such appropriation is not conducted as a free school.”

The matter quickly moved to trial. Meanwhile, Midsouth Association of Independent Schools moved to intervene as a defendant. Midsouth argued that the named defendants did not sufficiently defend their interests and raised claims that Section 208 violated the First and Fourteenth Amendments to the U.S. Constitution—an issue not raised by either party to the case.[9] At trial, the chancellor denied the motion to intervene and then ruled for the plaintiff, declaring the legislature’s appropriation unconstitutional under Section 208.[10] The chancellor also found the plaintiff had standing. The defendants and the prospective intervenor-defendant appealed.[11]

The Mississippi Supreme Court noted that Mississippi’s standing requirements are more liberal than under federal law.[12] That is in part because Article III’s “cases” and “controversies” requirements are absent from the state constitution.[13] Indeed, unlike federal law, Mississippi allows “taxpayer standing” in certain situations.[14]

More lenient standing rules were not enough for the plaintiffs, however. Reversing the chancellor’s holding, the court concluded there was no associational standing because plaintiff’s members, including parents of public school children, would not have standing on their own.[15] This was because plaintiff had not demonstrated that parent members “would suffer an adverse impact different than that likely suffered by the general public.”[16] The plaintiff’s argument was that giving the infrastructure funds to private schools put public schools at a competitive disadvantage because the infrastructure upgrades made private schools more likely to attract students—and the funding attached to them—away from public schools who suffer from “chronic underfunding.”[17] In response, the court emphasized that standing has to be supported by “a specific, and not merely speculative, future harm” that would result from the competitive disadvantage.[18] And the court said the plaintiff had alleged nothing specific beyond speculation about future loss of students.[19]

The court then considered taxpayer standing. The court did not provide guidance on what might constitute taxpayer standing in Mississippi in general. Instead, it simply analyzed whether its prior decision in Araujo v. Bryant applied.[20] In that case, the court found plaintiff parents had standing to challenge the funding of charter schools because they paid ad valorem property taxes which “were being diverted from the public schools in their district to charter schools” under the challenged statute.[21] The court distinguished the funds at issue in MidSouth because they were federal funds that were not commingled with state funds and were simply being directed by the legislature, not diverted from where they would have gone otherwise as in Araujo.[22]

After disposing of both standing arguments, the court did not address the merits or any other arguments on appeal. It therefore vacated the chancellor’s judgment, ruling for defendants.[23]

Justice Robert Chamberlin authored the majority opinion with six others joining. This included Justice Dawn Beam, who also wrote separately to argue, in a two-paragraph concurrence, that the funds at issue were not “state funds” but federal.[24]

Presiding Justice Leslie King dissented, joined by Presiding Justice James Kitchens. He argued that the link between improved private schools taking students, and thus funds, away from public schools as a prospective matter was not speculative but simply “common sense.”[25] The court’s holding that the loss of funds for public schools is speculative future harm, he continued, “wipes out decades of standing law in which parties challenge government action whose tangible impacts are purely prospective.”[26]

He then addressed the merits of the case and stated that “the plain language” of the challenged legislation meant that “the Legislature appropriated funds toward the support of schools that are not free schools,” thus violating “the plain language” of Section 208.[27] He did not address intervention, nor the prospective intervenor’s arguments that Section 208 violates the U.S. Constitution.

The court’s ruling means the constitutionality of this particular legislation will not be addressed, but the breadth of Section 208 in other contexts is left open. Also left open is the question raised by the prospective intervenor as to whether Section 208 would be unconstitutional under the U.S. Constitution if it was read to interfere with some forms of educational choice.

[1] 384 So.3d 1226 (Miss. 2024).

[2] Id. at 1233-34.

[3] American Rescue Plan Act of 2021, H.R. 1319, 117th Cong. (2021-2022).

[4] Id.

[5] Midsouth, 384 So.3d at 1231 (quoting 42 USC § 802(c)(1)(D)).

[6] The legislation used the term “independent school,” but it defined this as any school that is a “private or nonpublic school operating within the State of Mississippi” and that “is a member of the Midsouth Association of Independent Schools” or “[i]s accredited by a state, regional or national accrediting organization.” Miss. Code Ann. § 37-185-21(4)(e) (West 2022). Thus, even though in other contexts not all private schools are “independent schools,” any accredited private school is eligible.

[7] Midsouth, 384 So.3d at 1228.

[8] Id. See Miss. Const. art. 8, § 208.

[9] Midsouth, 384 So.3d at 1228-29.

[10] Id. at 1229.

[11] The prospective intervenor-defendant also appealed on the intervention question, but the Mississippi Supreme Court did not address it after finding the standing question dispositive. Id.

[12] Id. at 1230.

[13] Id.

[14] Id.

[15] Id. at 1232.

[16] Id. at 1230.

[17] Id. at 1230-31.

[18] Id. at 1232.

[19] Id. at 1231-32.

[20] Araujo v. Bryant, 283 So.3d 73 (Miss. 2019).

[21] Midsouth, 384 So.3d at 1232.

[22] Id. at 1232-33.

[23] Id. at 1233-34.

[24] Id. at 1234 (Beam, J., concurring).

[25] Id. at 1234-35. (King, P.J., dissenting).

[26] Id. at 1235-36.

[27] Id. at 1238.

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