Nashville and Shelby County sue to block school voucher law

Gov. Bill Lee delivers his second State of the State address in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)

The governments of Metropolitan Nashville and Shelby County have filed a lawsuit seeking to block Tennessee’s school voucher bill from going into effect.

The lawsuit filed in Nashville Chancery Court on Thursday claims the law violates home rule provisions of the state constitution by “unilaterally and arbitrarily” having the Education Savings Account, or ESA, Atc affect only students in Nashville and Shelby County.

“The General Assembly cannot impose its will on only two counties without their approval,” according to the lawsuit. “If the legislature believes that education savings accounts are good policy, it may pass a bill of general application so that all counties share the purported benefits of the program. If the legislature prefers to limit the bill’s application to two counties, it must include a local-approval option and hope the program’s merits will convince the affective counties to choose to participate. The ESA Act does neither and is the very model of such prohibited legislation.”

Lawmakers narrowly passed the voucher last year after the Lee administration agreed to back away from initial efforts to have the bill apply to the state’s four largest counties. Lawmakers from other parts of the state felt so strongly about excluding (or “protecting,” as some put it) their districts from the bill that they included a provision stating that if a judge were to rule that limiting the bill to just Nashville and Shelby County were unconstitutional, the whole program would be canceled rather than have it apply statewide.  The “reverse severability clause” has become a major focus of efforts to defeat the voucher legislation in court.

Supporters of the legal challenge point to a  2012 ruling by U.S. District Judge Hardy Mays that struck down a state law allowing six Shelby County municipalities to hold referendums on creating new school systems. Mays, a onetime chief of staff to former Republican Gov. Don Sundquist, found the legislation paving the way for those votes violated the state constitution because it affected just one county.

In examining the legislative history of the bill, Mays determined it “never would have passed had it not been intended to apply only to Shelby County.” Opponents of the voucher bill say the same applies to last year’s legislation, with the caveat that the measure also included low-income students enrolled in Nashville.

Mays noted in his 2012 ruling that the state Supreme Court had upheld the power of the General Assembly to have laws apply to a certain class of counties (e.g., those with a population of 300,000 or more), but only if it was based on “reasonable, rational and pragmatic rules [of construction] as opposed to theoretical, illusory, or merely possible considerations.” The judge determined that the municipal school bid had been passed with “a wink and a nod” about its intentions.

The voucher bill didn’t use population brackets to tie the law Nashville and Shelby County, instead basing eligibility on how many schools have fallen among the state’s worst in the past — a static measure, meaning no other district could join the ranks of voucher eligibility in the future.

Gov. Bill Lee in his State of the State address this week pledged to press ahead with implementing the voucher law.

“We created the Tennessee Education Savings Account Program, which will serve low-income students in districts with the highest number of low-performing schools,” he said. “Disruption is hard and sometimes controversial. But we cannot expect extraordinarily different outcomes without extraordinarily different inputs, so I’m proud of these initiatives, and I look forward to their success.”

19 Responses to Nashville and Shelby County sue to block school voucher law

  • James White says:

    Good, it Should apply to all. We need it.

  • MARLE says:

    Why can public money in the form of scholarships be applied to public, private, and parochial colleges and not k-12 other than the overwhelming objection of teachers and administration who form a significant voting block?

  • Beatrice Shaw says:

    we need free education. for college and students should also have to be accepted to private schools if they live close to them.

    • James White says:

      Beatrice, that is Communistic. We do NOT need that.

    • MARLE says:

      Free education for college? We practically have that for community colleges. What we really need is to drive the cost down. And we can do that with Technology.

      Cost of all education, given that we still deliver it as we did in the 1800’s, is THE problem. I’m frankly surprised we didn’t insist on keeping the horse and buggy like the Amish still do.

  • Not Stuart Anderson says:

    Good. Vouchers of any sort, whatever they are called are unconstitutional, divisive, and just plain stupid. ZERO evidence they work, and just plain bad public policy to boot.

  • Tom says:

    Vouchers will inevitably reduce funding for public schools. That is not a good goal.

    • MARLE says:

      So is the goal to throw good money after bad propping up failing public schools OR is the goal to educate children using the confiscated money of the state’s taxpayers in the most efficient way possible.

    • Beatrice Shaw says:

      Amen to that!! It would be unconstitutional to reduce funding for private schools, which is why I am sure the suits are filed

  • CollegeGrover says:

    Force private schools to accept students based on where they live? Does Ms. Shaw understand the meaning of the word private? Would she like to force private schools to also provide free education?

  • Josh Wilkins says:

    This bill isn’t good, but the legislature can make a law that affects just two counties. You just can’t single out a county.

    I hope they repeal it, but they are legally able to do it.

    The lawyers are the only ones benefiting.

  • Karen Bracken says:

    What you all do not understand is that ESA (vouchers) is a funding SCHEME to get all students in private school into the same system (standards/assessments) as the public school and get them into the data pipeline. The eventual goal via Charters and Vouchers is have ALL students in the same system of education (indoctrination). Recent research in several states that have had vouchers for a long have all said vouchers did not deliver as promised. Charters have not either. This is because the promises were based on lies. Parents will end up with a false choice of location only. If they told people the truth no one would have ever supported the Charter/voucher scheme to eliminate elected school boards, shut down parents, get all kids into the same system and data pipeline. There is an agenda and it is not about improving education opportunity. The problem is Lee does not understand the education reform movement and the agenda of the players and his Commissioner of Education and his Policy Director BOTH are in with the players and Lee is a puppet. WHATEVER the government funds the government controls and for every carrot they give out there are 2 sticks to beat you over the head with attached strings.

    • Lenny says:

      Indoctrination is a good thing. Put prayer back in public schools and we don’t have a problem. Education by the government should be for Christians – not Atheists, Muslims, or Catholics. Jews might be ok because they are the chosen people of Israel but they should probably be segregated and reindoctrinated.

    • Bill says:

      You are right on with this comment.

  • James White says:

    Vouchers should have nothing to do with private schools, that is charter schools as you say. Vouchers should be used by a parent to choose and hire the best teacher they want to basically home school their children. That is the way it should be done.

    • Karen Bracken says:

      Charter schools ARE public schools funded with public tax money they do not take vouchers. Only private schools and religious schools get vouchers and that is how they will suck private schools into the same failed system. Charter schools are MANDATED to teach the same standards and give the same assessments as the traditional public schools. No vouchers needed. Charters are publicly funded just like the traditional schools. BUT Charters do not have unions (yet) and they do not have an elected school board. The use of Charters to replace the traditional school is all about getting rid of elected school boards and those pesky parents and of course pulling profits for investors because although publicly funded they are privately owned. Now private and religious schools add a different twist and the only way they can get them into the state/federal system is by the use of public funds in the form of vouchers. People better do some homework and learn the truth instead of listening to talking heads that have motives outside education to push these schemes.

      • James White says:

        Agreed. Private schools should NOT accept government money. The whole idea of ‘public’ education is wrong. Federal and State governments should not be in the ‘education’ business. Tennessee should not be accepting Federal money, thus federal control.
        The government/public education system is so broken that it can not be fixed.

  • Bill says:

    It appears to me that various misleading and deceitful arguments have been employed over the years to use public money to fund private and religious schools. One source of this thinking has been the Heritage Foundation, a think tank in DC with a clearly religious agenda and considerable influence within the GOP, especially in TN. I oppose my tax monies going to support private education be it Catholic schools or other religious organizations. The tax dollars to not belong to the student to use as he or she might choose. The dollars are public monies to use for public schools.

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