Gov. Bill Lee’s education savings account program took another hit Tuesday, with the Tennessee Court of Appeals upholding a lower court’s decision that the controversial plan is unconstitutional.
A three-member panel of the Court of Appeals upheld a previous decision by Davidson County Chancery Court Judge Anne Martin, who ruled against the school-voucher law because it only applies to Memphis and Nashville.
The state attorney general quickly appealed that decision, hoping to kick off the program with the 2020-21 school year, but the courts blocked the state from receiving applications and preparing for the program’s kickoff for this academic year.
In its appeal, the state argued that education policy is the state’s responsibility — and that the local constitutional protections, known as “home rule,” don’t apply in this case. Martin had ruled that the law violated the home rule provision since the legislature imposed the program on just two counties without their say.
The program would allow students in Davidson and Shelby school districts to attend private schools and pay for it, in part, by with public funds. The General Assembly passed the controversial law in 2019 over the objections of officials in Davidson and Shelby counties. The education savings account program is one of Lee’s signature education initiatives.
After a remote hearing in May, Martin ruled the state could no longer accept applications and ordered the program’s website to say that applications were closed, and since the program’s fate was undetermined, parents should seek a backup plan. Even returning a phone call or email about the program was prohibited.
In June, the state Supreme Court declined to take up the case directly.
Opponents say the law will unfairly divert “scarce” public funding in some of the state’s most cash-strapped districts to private schools. Supporters of the law insist it’s a win for parents and their ability to choose where their children get an education, especially in areas with historically low test scores and schools considered failing by the state.
“Davidson and Shelby counties sued the State of Tennessee to challenge the constitutionality of the Tennessee Education Savings Account Pilot Program. The trial court found that both counties had standing and that the act was unconstitutional,” said Judge Andy Bennett, who delivered the court’s opinion Tuesday. “The State and intervening defendants appealed. We affirm.”
A spokesperson for Lee’s office confirmed that the state will appeal Tuesday’s decision.
“We’re seeing firsthand how school choice could have been tremendously impactful for the thousands of low-income kids who have no available in-person learning option. Today’s ruling is disappointing and we will appeal it so families have options for their children,” said spokesman Gillum Ferguson in an email.
Nashville, Memphis officials praise ruling
The Shelby County school board met for a regularly-scheduled meeting shortly after receiving the news of the court ruling Tuesday.
“We’re so excited that the Tennessee Court of Appeals upheld the decision announcing that the education savings accounts — as we call it, the voucher law — was ruled unconstitutional,” Superintendent Joris Ray said. “This is excellent news as we continue to champion public education and equitable funding.”
Stephanie Love, a Shelby County board member, said she is also grateful for the latest ruling.
Nashville Mayor John Cooper said the city’s “students deserve a high-quality, well-resourced education.”
“To achieve that important goal, public schools in Nashville need more investment, not less,” he said in a statement. “The challenges of COVID-19 require all of us to work together, more than ever, on behalf of students and their families. Our office remains committed to providing all young Nashvillians with equitable access to an excellent education.”
Metro Law Director Bob Cooper, a former state attorney general who argued the case on behalf of Nashville and Shelby County, called the ruling “an important victory for local government in Tennessee.”
“It reaffirms that the State cannot impose burdens on a select few counties or cities without their permission,” he said.
Metro Schools spokesperson Sean Braisted said it is now “plainly evident and affirmed by two courts that the voucher law, passed under questionable circumstances, is unconstitutional and a targeted attack on Metro Nashville and Shelby County Schools.”
Democrats in the legislature also quickly praised the appellate court decision.
“I support educational options with a record of success – vouchers have failed in IN, WI, & AZ,” state Sen. Raumesh Akbari, D-Memphis, said on Twitter. “Let’s fully fund our public schools. Our kids deserve more.”
House Democratic Caucus Chairman Mike Stewart, D-Nashville, said the court “got it right.”
“Governor Lee’s voucher plan is unconstitutional,” he said in a statement. “You can’t have laws that place huge burdens on just two counties.”
Backers vow to press ahead to state Supreme Court
Backers of the law vowed to press ahead.
Shaka Mitchell, the Tennessee state director of the American Federation for Children, previously characterized the lower court’s decision as putting “putting the educational futures of thousands of kids in jeopardy.”
In an email Tuesday, Mitchell said he looks forward to the state appealing the latest decision.
“The Education Savings Account program is, and always has been, a program to benefit kids and parents and empower them to make the best decision for their family,” Mitchell said in an email to The Tennessean. “Ultimately, all parents want their child to go to a good school — one that is right for them. We disagree with the conclusions reached by the Tennessee Court of Appeals and look forward to the State and our partners taking the next and final step of appealing to the Tennessee Supreme Court.”
Justin Owen, president and CEO of The Beacon Center of Tennessee — which previously sought to intervene in the lawsuit filed — said the organization looks forward to taking the case to the state Supreme Court.
“We are confident the Supreme Court will find that the state’s careful attempt to throw a lifeline to parents stuck in the worst-performing schools is in fact constitutional. These families are hurt every day that the status quo remains in place and we hope the Supreme Court will give them the educational options they so desperately need and deserve,” Owen said in a statement.
State Sen. Brian Kelsey, R-Germantown, who voted in favor of the law as a member the legislature, represented several groups in support of the program during the ongoing legal fight.
“If this ruling is allowed to stand, it would be a remarkable disservice to low-income children who are fighting for the prospect of a brighter future,” said Kelsey, a senior attorney at Liberty Justice Center. “We remain confident in our legal arguments and plan to appeal to the Supreme Court.”