TRANSCRIPT: Judge says no offense taken at Lee comments, but declines to lift stay on vouchers

Gov. Bill Lee delivers his first State of the State address in Nashville on March 4, 2019. (Erik Schelzig, Tennessee Journal)

Nashville Chancellor Anne Martin said Thursday she didn’t take offense at Gov. Bill Lee’s comments earlier this week that he was still encouraging parents to apply for school vouchers even though she had ruled the program unconstitutional. Events were moving quickly, Martin said, and she assumed the governor “was not prepared for the question, particularly at a COVID-19 press conference.”

Martin took greater affront at the state Department of Education for not including any hint of the pending litigation or her ruling finding that the program was unconstitutional on its website.

“It is confusing to parents and indicates a disregard of the court and the rule of law,” she said.

The judge declined the state defendants’ motion to lift a stay on processing voucher applications while her decision is appealed.

Here is Martin’s full ruling from the bench:

“The court has before it a motion filed by the defendants to stay implementation of its injunction against the operation of the ESA program pending appeal. Both the plaintiffs in the Metro case and those in the McEwan case object to this request. In their filings, they provided the court information regarding the state defendants’ failure to honor the injunction, specifically based upon the Department of Education’s continued acceptance of applications through its website, its failure to notify families of the true status of the program, and the statements of Gov. Lee at a COVID-19 press conference the day after the injunction was issued.

Those issues were not discussed as much today as much as I anticipated. But I did read everything that was submitted, including the caselaw. The defendants have tried to assign blame to the plaintiffs for the unfortunate and necessarily expedited nature of these proceedings in relation to the upcoming school year. It has put pressure on families, the private schools that wish to participate in the program, the public-school systems affected, and the state. But the rulemaking on the ESA Act did not finish until mid-February. The state decided to implement the program for the upcoming school year. Lawsuits had to be prepared and motions filed to intervene and for relief. We are where we are, and the court does not believe that anyone has unreasonably sat on their rights.

The court has responded by moving as quickly as possible to hear motions and issue its opinions. While I know the defendants do not agree with the court’s opinion and are appealing it, I thought it important to act quickly, cover the issue thoroughly, be clear in my reasoning, and cite the authorities to support my decision. I believe that I did that, and it is up to a higher court to decide if I got it right.

I also did my best to tee up this case for immediate review by approving interlocutory appeal to the Court of Appeals without the necessity of a motion and identifying the basis upon which defendants could seek to skip that process if the Supreme Court were willing to reach down and take the appeal.

In the meantime, there is the issue of what, if anything, the state defendants can do in relation to the ESA program and also, very importantly, what the public is being told about the status of the program and what applicants should be doing to plan for the 2020-2021 school year. It is not helpful when representatives of the state make statements to the public and the press that are inconsistent with the court’s ruling and the true status of the program. It is confusing to parents and indicates a disregard of the court and the rule of law. However, in addressing the governor’s statements at a state conference on May 5, 2020, the court does not take offense. Honestly, things are moving very quickly, the decision had just come out the evening before, and the court assumes Governor Lee was not prepared for the question, particularly at a COVID-19 press conference.

The court is more concerned about the mixed messaging from the Department of Education since there is not reference to the lawsuit or the status on the website. The current status is the program is enjoined as enacted, because it was enacted in an unconstitutional manner. Whatever happens on appeal will happen. But the current status is the program is not going forward and parents need to be told and to have Plan B.

The court is going to deny the relief requested under Tennessee Rule of Civil Procedure 6203. The court will allow the state to continue taking applications through today, which is the newest deadline. That deadline has moved several times, but Deputy Commissioner Amity Shuyler said in her declaration that the deadline is now today.

The state remains enjoined, however, from using state resources otherwise to process applications, engage parents in schools, and remit any funds in support of this program.

Further, the court is ordering the state to post on the ESA website a notice to the public that the program is currently enjoined, that the ruling is appealed, that the state is hopeful of success on the appeal and to put the program into effect for the upcoming school year. But that remains uncertain at this time and families need to have a backup plan for school next year. And it sounds like what you said, Ms. Bergmeyer, that’s already in process. But the state defendants should file a notice with the court regarding its compliance with that requirement and a copy of the website notice. The court also expects the state defendants to be consistent with that message in speaking to the public.