Nashville and Memphis threatened legal action before the bill was signed into law.
But that did not stop Gov. Bill Lee, who — with an assist from Republican leaders in the House and Senate — pushed through his plan for education savings accounts. The ESA program would give qualifying students in Davidson and Shelby counties more than $7,000 in public school money to spend on private-school tuition and other costs.
Lee’s plan originally would have applied to five counties, but it was whittled down to appease skeptical lawmakers — the crux of what the two counties left in the final version argue is unfair and unconstitutional treatment.
Now, more than a year after the Tennessee General Assembly approved the plan, the state’s two most populous counties emerged victorious after the opening salvo in the legal battle over the voucher program. Davidson County Chancellor Anne Martin ruled Lee’s program unconstitutional because it targeted the two counties, and she ordered implementation to stop.
“The way that it was enacted, targeting just two counties for a policy that they were not willing to inflict on the rest of the state, of course means you have to go to court and enforce your rights,” Nashville Mayor John Cooper said.
It’s not the end of the story, though. Lee’s administration quickly pledged to appeal the decision, and did so late last week. The litigation will continue before the Tennessee Court of Appeals and, perhaps down the line, the Tennessee Supreme Court.
But the local court’s decision threw a wrench in Lee’s plan to launch the program a full year before required by statute. The governor wanted the signature accomplishment from his first year in office to be operational in time for students enrolling in the fall of this year — rather than in 2021, as allowed by the legislation.
To accomplish that, according to statements by litigants during the court proceedings, students would need to be accepted into the ESA program and enrolled at their new private schools by around June 15, in part so that the new schools could hire enough teachers and otherwise prepare for new students. Defendants in the case — separately representing the state and interested parents and private schools — argue that dragging the proceedings beyond that deadline would do irreparable harm to students who would miss out on the opportunity for the forthcoming school year. Davidson and Shelby counties, though, argue that the deadline is self-imposed and that the students have other options — like magnet and charter schools — if they are unhappy with their zoned schools.
Until and unless a higher court overturns the Davidson County chancellor’s ruling, the state remains enjoined from implementing the program, right as the Department of Education would otherwise be processing applications in time for fall enrollment. Lee caused a stir the day after the ruling when he encouraged parents to still apply.
Martin said she thought the governor was not prepared for the media question about her ruling. She ordered the Department of Education to make clear on its website that the program was not actively processing applications and that parents should consider other options for the upcoming school year.
The state’s lawyers argue that education falls within the legislature’s purview and thus the law cannot violate the state constitution’s Home Rule Amendment.
Largely left out of the proceedings is the debate over school choice as policy. Cooper echoed most leaders in Nashville and Memphis when he called vouchers bad public policy, but Lee and his Republican allies continue to evangelize for the idea’s efficacy — at least in Nashville and Memphis.
That support could be tested, however, when the legislature returns to Nashville in June. Lee decided to keep first-year funding for the voucher program in an emergency budget hurriedly passed in March despite cutting planned raises for public school teachers and making about $1 billion in other cuts.
The House and Senate are expected to make further adjustments to the budget upon their return, and the ESA program could be on the chopping block, at least for the upcoming year.
As House Republican Caucus Chair Jeremy Faison told The Tennessean, “Bring your popcorn.”
