school vouchers

Voucher law ruled unconstitutional, Lee vows quick appeal

Gov. Bill Lee speaks at a press conference on Tennessee’s coronavirus response in Nashville on March 16, 2020. (Erik Schelzig, Tennessee Journal)

A Nashville judge has ruled Tennessee’s school voucher law violated the Tennessee Constitution because it was written in a way to only apply to two of the state’s counties and passed without residents’ consent.

Debate over the the school voucher bill dominated the 2019 legislative session, with the Lee administration starting out with a bill applying to at least five counties. The bill was successively whittled down affect fewer and fewer counties, ending up with just Nashville and and Shelby County in order for the bill to be narrowly approved.

Chancellor Anne Martin found that based on “the legislative history detailing the extensive tweaking of the eligibility criteria in order to eliminate certain school districts to satisfy legislators (rather than tweaking to enhance the merits of the Act) that the legislation is local in form and effect.”

Gov. Bill Lee’s office is promising a prompt legal challenge.

“We strongly disagree with the court’s ruling and will swiftly appeal on behalf of Tennessee students who deserve more than a one-size-fits-all approach to education,” Lee spokesman Gillum Ferguson said in a statement.

Vouchers vs. teacher pay? Lawmakers gear up for budget battle

Finance Commissioner Stuart McWhorter presents budget cuts to the Senate Finance Committee on March 18, 2020. (Erik Schelzig, Tennessee Journal)

Tennessee lawmakers are gearing up for a long day Thursday in which they hope to come to an agreement over deep budget cuts before going into recess until the coronavirus crisis subsides.

One of the biggest sticking points is Gov. Bill Lee’s plan to keep funding in the budget to launch his school voucher program this fall while cutting a planned 4% teacher pay raise in half.

The word around the largely deserted hallways of the Cordell Hull Building is that the House will go first on trying to pass the budget, with the Senate to follow suit later.

Second lawsuit seeks to block school voucher law

Another lawsuit has been filed in Nashville Chancery Court aiming to block Gov. Bill Lee’s signature school voucher law from going into effect.

The lawsuit was filed behalf Nashville and Shelby County parents by lawyers representing the state chapter of the American Civil Liberties Union, the Southern Poverty Law Center, and the Education Law center.

A previous lawsuit was filed by the governments of Nashville and Shelby County.

Here’s the press release announcing the latest litigation:

Nashville, Tenn., March 2 – Public school parents and community members in Nashville and Memphis today filed suit in the Chancery Court for Davidson County challenging the Tennessee Education Savings Account (ESA) voucher law as an unconstitutional diversion of public education funding to private schools.

In the lawsuit, McEwen v. Lee, the plaintiffs contend that diverting millions of dollars intended for Memphis and Nashville public schools to private schools violates public school students’ rights to the adequate and equitable educational opportunities guaranteed under the Tennessee Constitution. The lawsuit also charges that the voucher law violates the constitution’s “Home Rule” provision, which prohibits the state legislature from passing laws that apply only to certain counties.

The Tennessee voucher program would siphon off over $7,500 per student – or over $375 million in the first five years – from funds appropriated by the General Assembly to maintain and support the Metro Nashville Public Schools (MNPS) and Shelby County (Memphis) Schools, according to the lawsuit. The controversial state law could go into effect as early as the 2020-21 school year.

The voucher law passed by a single vote in May 2019, over the objections of legislators from Shelby and Davidson Counties, as well as others.

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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.”