Tennessee Supreme Court rules in favor of Gov. Bill Lee's controversial school voucher program

·8 min read

In a major win for Gov. Bill Lee, the Tennessee Supreme Court on Wednesday struck down arguments that his controversial school voucher program violated the state constitution by only applying to districts in Davidson and Shelby counties.

Under the education savings account program, eligible students could choose to take public money for their education and apply it to private school tuition instead.

But only some students — specifically those in Metro Nashville and Shelby County public school districts — are part of the three-year pilot program approved narrowly by the Tennessee General Assembly in 2019.

The county governments argued the law violated the "home rule" provision of the Tennessee Constitution since it was narrowly tailored to their jurisdictions without their consent.

The state disagreed and instead argued that education policy is the state’s responsibility. As a result, they made the case that the local constitutional protections don’t apply in this case.

In the 3-2 ruling, the state's highest court agreed with the Lee administration.

The state Supreme Court sent the case back to the trial court to resolve whether the program violates the constitutional equal protection clause and public school students’ rights to adequate and equitable educational opportunities.

It is unclear when the trial court will hear the other claims raised by Davidson and Shelby counties or when the education savings account program could start up.

Lee on Wednesday celebrated the court's decision and supporters have long heralded it as a way to give families much-needed choice on where their children learn.

“Every child deserves a high-quality education, and today’s Tennessee Supreme Court opinion on ESAs puts parents in Memphis and Nashville one step closer to finding the best educational fit for their children," Lee said in a statement.

The court's decision

The majority opinion, written by Chief Justice Roger Page, said the justices ruled against Davidson and Shelby county because the state’s "home rule" provision doesn’t apply to school districts.

“County boards of education themselves are not bestowed with home rule authority,” the majority opinion said. “In the absence of home rule authority, LEAs cannot logically be deemed to be endowed with the protection of the home rule amendment.”

Previously: Tennessee Supreme Court grills attorneys in second hearing on Gov. Bill Lee's school voucher program

But in a dissenting opinion, Justices Sharen Lee and Holly Kirby said the majority's decision ignored the purpose of the home rule amendment, and instead elevated “form over substance.”

“The ESA Act causes a distinct and palpable injury to (Davidson County and Shelby County’s) sovereignty — their right to control their local affairs — as guaranteed by the Home Rule Amendment,” Lee wrote in the dissenting opinion.

“The fact that the ESA Act names the LEAs and not the Plaintiffs should not be the end of our review … This Court has long disfavored such a formalistic analytical approach to the Home Rule Amendment.”

Senate Minority Leader Jeff Yarbro, D-Nashville, said the court reached this ruling on a “hyper-technical basis and seemed to ignore precedent."

“Tennessee adopted the Home rule amendment to affect this type of meddling by the legislature with local governments,” Yarbro said. "While the decision itself is bad, the worst result of the decision is the school vouchers. In state after state, vouchers lead to worse education outcomes."

Nashville Mayor John Cooper vowed to continuing fighting the law.

"The Mayor strongly believes that diverting scarce state school funds away from our public school system and into the hands of private schools is directly against the interest of Nashville’s children and families," Cooper spokesperson TJ Ducklo said in a statement. "That is especially true when state law arbitrarily and unjustly singles out a few counties, including ours, to effectively receive less money for public schools."

Supporters praise decision

The education savings account program was the centerpiece of Lee's 2019 legislative agenda. Lawmakers narrowly approved the program but only after removing other counties from it.

It remained a top priority for legislative Republicans.

“I am grateful to the Tennessee Supreme Court for recognizing this pilot program does not violate the home rule amendment," Lt. Gov. Randy McNally, R-Oak Ridge, said in a statement. "It is critically important parents have as many choices as possible in educating their children."

Attorney General Herbert Slattery, whose office defended the state in court, said the program challenged the status quo.

“While there are further court proceedings that need to take place, this is a major step forward,” he said in a statement.

John Patton, state director for the American Federation for Children — Tennessee, which has long backed Lee's voucher push, praised the court's decision.

"We are heartened by the decision and look forward to the next steps for the program. School choice programs work," Patto said in a statement. "They empower parents with the resources to find schools that better fit their unique needs and they foster innovation."

Other groups, such as the Beacon Center of Tennessee, The Institute for Justice, a public interest law firm, the Liberty Justice Center and TennesseeCAN, also praised the court's decision.

Opponents remain wary

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Still, opponents argue the law will unfairly divert scarce public funding in some of the state's most cash-strapped districts to private schools and remain worried about what's ahead.

Students who take part in the program could attend private schools, but the local school districts would still pass along funding for that student because of the way their enrollment is tallied.

“Private school vouchers undermine our public schools and have failed to support the learning needs of students who have used them in other states where they have been tried," Adrienne Battle, director of Metro Nashville Public Schools, said in a statement.

"We strongly disagree with the court’s opinion which undermines the principles of local control and will harm Davidson County taxpayers who will ultimately be on the hook to pay for the state’s voucher scheme.”

Memphis-Shelby County Schools board chair Michelle McKissack said she was disappointed in the ruling.

“I wish that there would be as much full-throttle support for public education and bending over backwards to make things work and to do all that we can for students who are attending traditional public schools as we are, as it seems, with the voucher system,” McKissack said in a telephone interview.

Sending public dollars to private school systems doesn’t seem fair, but rather is detrimental to public school systems, she said.

McKissack criticized the governor for vowing to boost funding for public schools with his new Tennessee Investment in Student Achievement Act while also backing the education savings account program.

"It undermines what TISA is supposed to accomplish,” McKissack said. “It’s sending a message that, ‘Yeah, we’re kinda supporting public education, but not really.’”

The original legislation allocates up to $7,300 for families to use toward private school tuition under the program but it is unclear if more dollars could now follow a student since a new administration-backed school funding legislation cleared the General Assembly this spring.

The new Tennessee Investment in Student Achievement Actallocates funding per pupil based on specific student needs.

Some groups took a more cautious approach to the court's decision.

J.C. Bowman, executive director and CEO of the Professional Educators of Tennessee, a nonpartisan statewide teacher association headquartered in Nashville, said the program will ultimately be defined by the students who take advantage of the vouchers.

“Legal experts will continue to debate this case on its merits for many years, and it may still face additional legal challenges, but the Tennessee Education Savings Account will ultimately be defined by the students who participate in the program and their academic success or failure, " Bowman said in an email. "Public schools will remain the choice of the vast majority of parents in our state who believe their child is receiving a high-quality education.”

High court heard arguments twice

Davidson County Chancellor Ann Martin blocked the law in May 2020, ruling that the state improperly imposed the program on the two counties without their consent, thereby violating the "home rule" provision. The Court of Appeals upheld that decision in September 2020.

The Tennessee Supreme Court first heard arguments in the case in 2021 before the death of Justice Cornelia A. Clark in September. Clark died after the court heard oral arguments on the case in June but before a ruling could be handed down.

In December, Chief Justice Roger A. Page said the court would hear arguments again and appointed a temporary fifth judge to hear the case.

Page tapped Judge Thomas R. Frierson II of the Tennessee Court of Appeals to fill out the panel for the arguments and work on the case throughout its duration.

The chief justice's decision to appoint Frierson came before the governor appointed Justice Sarah Campbell to the bench. Still, she has recused herself, since she previously worked at the attorney general's office.

The court heard arguments again in February.

Reporters Laura Testino and Mariah Timms contributed to this report.

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Adam Friedman is The Tennessean’s state government and politics reporter. Reach him by email at afriedman@tennessean.com.

Meghan Mangrum covers education for the USA TODAY Network — Tennessee. Contact her at mmangrum@tennessean.com. Follow her on Twitter @memangrum.

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This article originally appeared on Nashville Tennessean: Tennessee Supreme Court rules in Lee's education savings account program