Supreme Court formally lifts injunction on voucher program
The state Supreme Court has formally lifted the injunction in place on Gov. Bill Lee’s signature school voucher law since 2019. Lee’s office says it will immediately begin implementing the Education Savings Account program.
According to a statement from Lee:
Today the court removed the final roadblock to getting Memphis and Nashville families additional options for high-quality education. Starting today, we will work to help eligible parents enroll this school year, as we ensure Tennessee families have the opportunity to choose the school that they believe is best for their child.
The case now heads back to Chancery Court for further proceedings, but Nashville Chancellor Anne Martin, who issued to the original ruling, will be joined by two further jurists under a new law requiring a panel of three elected judges to preside over cases challenging state laws. The other two are Circuit Judges Tammy Harrington of Blount County and Valerie Smith of Shelby County. Both were first appointed to the bench by Republican Gov. Bill Haslam.
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.
Lee backs off of keeping voucher applications going after judge’s ruling
Gov. Bill Lee speaks at a press conference on Tennessee’s coronavirus response in Nashville on March 16, 2020. (Erik Schelzig, Tennessee Journal)
Gov. Bill Lee is backing down from a pledge to keep encouraging parents to apply for the state’s school voucher program even after a judge declared the law unconstitutional and enjoined the state from implementing the Education Savings Account Act.
Lee told reporters on Tuesday that applications would still be processed while the state sought an appeal. Late Tuesday night, the attorney general’s office submitted a legal filing asking Nashville Chancellor Anne Martin to lift her order to allow the state to keep taking applications. A hearing has been scheduled for Thursday.
Lee spokesman Gillum Ferguson issued the following statement on Wednesday afternoon:
While we disagree with the court’s ruling, we respect it and believe we are in full compliance. If there are differences of opinion regarding the specific terms of the court’s order, we expect further clarification, soon. In the meantime, the Department of Education has not and will not be taking any action to process, administer, review applications, or further implement the program until this matter is resolved in the courts.
Asking for permission after the fact? State seeks judge’s OK to keep taking voucher applications
Gov. Bill Lee speaks at an event in Nashville on April 2, 2019. (Erik Schelzig, Tennessee Journal)
Gov. Bill Lee on Tuesday declared the state would plow ahead with laying the groundwork for school vouchers while appealing a judge’s ruling that the program is unconstitutional. The governor’s declaration raised eyebrows in legal circles because Nashville Chancellor Anne Martin had explicitly enjoined the state from “implementing and enforcing” the Education Savings Account Act.
Attorney General Herbert Slatery’s office appears to be trying gain some post hoc approval for the governor’s plan to keep encouraging parents to apply for the program while the state appeals the decision. In a court filing submitted to Martin at 10:21 p.m. Tuesday, the defendants “respectfully move to stay the injunction ordered by this Court,” WPLN-FM’s Sergio Martínez-Beltrán reports.
“The trial court’s injunction preventing state officials from implementing and enforcing the ESA Program will result in irreparable injury,” according to the filing. “… Participating students and parents who have begun the application process for participation in the ESA Program are now facing the prospect of returning to underperforming schools.”
Left unsaid in the filing is that nothing in the voucher law limits eligibility to students attending failing schools. The law allows families meeting income requirements whose children attend any public school in Nashville and Shelby to apply.
The Lee administration has pressed ahead with launching the program this fall, much to the consternation of Republican leaders like House Speaker Cameron Sexton. While the controversial state law allows the governor to launch the program this year, it doesn’t actually require the program to go online until the academic year starting in August 2021.
The state’s filing argues that putting a hold on the school voucher program while the appeals are pursued would negatively affect the families of more than 2,500 students who have already applied and could lead private schools to lay off teachers they had hired in anticipation of growing their enrollment.
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.
