On May 18, the Tennessee Supreme Court ruled in favor of Gov. Bill Lee’s Education Savings Account program. The ESA program would allow certain students in Nashville and Memphis to use public education funds to attend private schools — an extremely divisive idea.
The ruling follows years of litigation from Davidson and Shelby counties against the state. The plaintiffs’ primary argument was that the program violates the Home Rule Amendment of the Tennessee Constitution because it targets specific counties. Initially, the Davidson County Chancery Court and the Tennessee Court of Appeals sided with the plaintiffs regarding ESAs and the Home Rule. The state appealed to the Tennessee Supreme Court, which heard the argument in 2021 but was delayed due to the death of Justice Cornelia Clark in September. Ultimately, the court ruled in favor of the state in a 3-2 decision (with a specially appointed judge filling in for Clark).
The court’s majority opinion stated that local education authorities are not counties, so the Home Rule does not apply to them. The decision marks a win for Gov. Lee, who’s been trying to implement this program since he took office in 2019. The legislation passed very narrowly in the state House that year.
Reactions to the high court’s ruling were swift and heated. Representatives from several school-choice organizations supported the ruling, and Republican state Attorney General Herbert Slatery issued a favorable statement. And the governor, of course, was pleased.
“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,” Gov. Lee tweeted after the ruling.
Critics of ESAs — including public education advocates, education leaders from Nashville and Memphis, and Democrats across the state — condemned the ruling.
“Metro Schools are already significantly underfunded by the State of Tennessee under the BEP and TISA,” said MNPS director of schools Adrienne Battle in a statement. “If the private school voucher law goes into effect, this underfunding will only be worsened to the detriment of the children of Nashville.”
The Tennessee Investment in Student Achievement Act — which Battle references in her statement, and which changes how schools in the state are funded — is set to replace the Basic Education Program in the 2023-2024 school year. But it’s not yet clear how that could affect the ESA program.
Mayor John Cooper released a statement via a spokesperson, saying, “We’re disappointed by today’s ruling but will continue to vigorously fight this law through all possible avenues.”
Despite the Tennessee Supreme Court’s ruling, the ESA program still has more legal hurdles. The case brought on by Davidson and Shelby counties argued that the ESA program violates several aspects of the Tennessee Constitution, including the equal protection and education clauses — arguments that still need to be addressed in court. There’s also a similar but separate lawsuit from parents represented by the Education Law Center, Southern Poverty Law Center, American Civil Liberties Union of Tennessee and Robbins Geller Rudman and Dowd LLP.
The parent-driven lawsuit argues a number of points, touching on the education and equal protection clauses. “The basis for that claim is that the voucher law takes money out of the pockets of Shelby County and Metro Nashville, but not any other counties in the state,” says Chris Wood, an attorney for the plaintiffs.
Much remains to be seen for the future of the ESA program. Though Gov. Lee has said he wants to get the program up and running “as soon as possible,” he hasn’t laid out a specific time frame for when the ESA program could go into effect. With the remaining court challenges, it’s unclear whether that will even be possible.
“It’s still to be seen exactly what’s going to happen next in the litigation,” says Wood. “We don’t know if the state is going to try to implement the voucher program for the fall of this year. Nothing surprises me, although it seems like it will be pretty hard to do at this point.”
