JACKSON, Miss. (AP) — A federal appeals court has affirmed that Mississippi parents may pursue a lawsuit that says the state allows grave disparities in funding between predominantly Black and predominantly white schools.

The 5th U.S. Circuit Court of Appeals ruled 9-8 Monday to support a ruling that three of its own judges handed down in April.

In 2019, U.S. District Judge William H. Barbour dismissed the lawsuit filed against state officials by the Southern Poverty Law Center. The three-judge panel revived the lawsuit in April. Mississippi officials, including Gov. Tate Reeves and state Superintendent of Education Carey Wright, asked the full appeals court to reconsider the ruling by the three-judge panel. The vote Monday was to reject that request.

The suit was filed in 2017 on behalf of low-income Black women who said their children and other Black children attended schools that were in worse condition and had lower academic performance than some wealthier, predominantly white schools.

Barbour said state officials were immune from being sued. The appeals court panel said in April that sovereign immunity “is not limitless” and people may sue a state as long as the suit seeks changes going forward and not compensation for past practices.

Southern Poverty Law Center attorney Will Bardwell said in a statement Tuesday that more than 80% of Mississippi’s highest performing school districts are majority-white, and all of its failing school districts are majority-Black.

“More than 100 years since Reconstruction and 66 years after Brown v. Board, Mississippi continues to operate two types of schools: high-performing schools for white children and failing schools for Black children,” Bardwell said.

The lawsuit said Mississippi has been violating a federal law that allowed the state to rejoin the union after the Civil War. The 1870 law said Mississippi could not change its 1868 state constitution in a way to deprive any citizen of “school rights and privileges.” The state now has a constitution that was adopted in 1890 and has been amended several times.

“From 1890 until the present day, Mississippi repeatedly has amended its education clause and has used those amendments to systematically and deliberately deprive African Americans of the education rights guaranteed to all Mississippi schoolchildren by the 1868 Constitution,” the lawsuit said.

The Mississippi attorney general’s office argued in court papers in 2018 that the plaintiffs were seeking to “refashion” the 1870 federal law “into a contorted federal mandate that would place the State of Mississippi in a straitjacket so far as the educational provisions of the State’s Constitution are concerned.”

The plaintiffs’ children in 2017 were attending elementary schools that were 95% Black and where 95% of students were receiving free or reduced price lunches — an indicator of poverty.

The suit said that fewer than 11% of students at their children’s schools were proficient in reading and math, and the schools had a D rating from the state. They contrasted that to three higher-income, mostly white schools in Madison County, DeSoto County and Gulfport, where more than 65% of students were proficient in reading and math and the schools had an A rating.

The lawsuit also said that schools attended by the plaintiffs’ children had wet ceilings, chipping paint and inexperienced teachers, compared to the other schools with extensive resources and extracurricular activities and experienced teachers.

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