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.”