Appeals Court Rules Lee’s School-choice Program Unconstitutional; State Considers Appeal

(photo courtesy of Mark Humphrey/AP)

The Center Square [By Vivian Jones]-

A pilot program that would provide state-funded scholarships for low-income students in Shelby and Davidson counties to attend private schools is unconstitutional, a panel of three appeals court judges ruled Tuesday in upholding a lower court’s ruling.

State officials signaled Tuesday that in light of the ruling, the state is considering appealing the case to the Tennessee Supreme Court. The attorney general’s office confirmed to The Center Square it is reviewing the ruling and will consult with its clients on next steps, including an appeal.

“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 Sen. Brian Kelsey, R-Germantown, who serves as vice chairperson of the Senate Education Committee and argued on behalf of several appellants in Shelby County. “We remain confident in our legal arguments and plan to appeal to the Supreme Court.”

Gov. Bill Lee’s Education Savings Accounts pilot program, passed by the General Assembly in 2019, would provide $7,000 scholarships for students in low-performing school districts in Davidson and Shelby counties, where Nashville and Memphis are located, to attend a private school of their choice.

“We’re seeing first hand how school choice could have been tremendously impactful for the thousands of low-income kids who have no available in-person learning option,” Lee spokesperson Gillum Ferguson said in a statement. “Today’s ruling is disappointing, and we will appeal it so families have options for their children.”

The city of Nashville, Nashville Public Schools and the Shelby County Government filed suit in February against the Tennessee Department of Education, claiming the pilot program was unconstitutional under the home rule provision of the state constitution. Under that provision, the General Assembly is prohibited from passing laws that apply narrowly to a particular county without local approval.

A Davidson County Chancery Court ruled the program unconstitutional in May, and the state appealed, hoping to roll out the program for the 2020-2021 school year. The Supreme Court declined to hear the case directly in June, and the Court of Appeals heard the case last month.

Judges Andy Bennett, Michael Swiney and Neal McBrayer affirmed the lower court’s ruling Tuesday.

“The trial court found that both counties had standing and that the act was unconstitutional under paragraph 2 of article XI, section 9 of the Tennessee Constitution. The State and intervening defendants appealed. We affirm,” the opinion reads.

Advocates of the governor’s school-choice program said the court’s ruling is a disappointment to students and families whom the public school system has failed.

“While we respect the court’s ruling, we look forward to taking this case to the Tennessee 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,” said Justin Owen, president and CEO of the Beacon Center of Tennessee. “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.”

“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,” said Shaka Mitchell, state director of the American Federation for Children. “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.”

Nashville officials praised the court’s decision.

“This is an important victory for local government in Tennessee,” said Metro Legal Director Bob Cooper, who argued before the court on behalf of the city of Nashville. “It reaffirms that the State cannot impose burdens on a select few counties or cities without their permission.”

“Metro Nashville students deserve a high-quality, well-resourced education,” Mayor John Cooper said. “To achieve that important goal, public schools in Nashville need more investment, not less.”

Democrats in the House and Senate pointed out the constitutional questions had been raised during legislative debate, and were glad to see the court affirm.

“The Court of Appeals got it right: Governor Lee’s voucher plan is unconstitutional. You can’t have laws that place huge burdens on just two counties,” said House Minority Caucus Chairperson Mike Stewart, D-Nashville.

“This is BIG,” Senate Minority Caucus Chairperson Raumesh Akbari, D-Memphis, tweeted Tuesday evening. “[Senate Democrats] made it clear during debate on this bill that this legislation was unconstitutional. I support educational options with a record of success – vouchers have failed in IN, WI, & AZ. Let’s fully fund our public schools. Our kids deserve more.”

Fewer than 1 in 5 students in Shelby County Schools are performing at grade level, according to the latest Tennessee Comprehensive Assessment Program assessments. In Nashville, fewer than 1 in 4 students are performing on grade level.

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