vouchers

New TNJ edition alert: Mugwumps, vouchers, and the death a player in the Rocky Top bingo scandal

The Tennessee Supreme Court building is seen in Nashville on Dec. 8, 2021. (Erik Schelzig, Tennessee Journal)

The latest print edition of The Tenenssee Journal is out. Here is what’s in it:

— Revenge of the mugwumps? Party purity tests dog Republicans.

— From the courts: Nashville asks Supreme Court for redo on school voucher decision, $1M price tag for robocalls in mayoral recall effort.

— Political roundup: Harwell endorsed by anti-abortion group as poll tests lines of attack.

— Obituary: Former state Sen. Jim Lewis, top bingo advocate before FBI’s Rocky Top crackdown.

Also: Tax conviction may cost Joe Armstrong his radio license, Jack Johnson is getting ready for BBQ & Beans fundraiser, the TBI is taking applications for director, and a deep dive into what languages Tennesseans command.

As always, access the your copy of the TNJ here.

Or subscribe here.

Programming note: The Tennessee Journal is on summer break next week. We will be back with a new edition on June 17.

Nashville to Supreme Court: You blew it on voucher ruling

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

Nashville Mayor John Cooper’s administration is asking the state Supreme Court to review its 3-2 decision upholding Gov. Bill Lee’s signature school voucher law. The high court ruled the Education Savings Accounts didn’t violate the home rule provision in the state constitution that protects jurisdictions from being singled out without local buy-in because the law applies to school districts and not county governments. But the Cooper administration says the justices didn’t take into account that both school systems were merged into the new metropolitan government when voters approved the merger of Nashville and Davidson County in 1962.

“Because Nashville’s public schools are part of Metro, the ESA Act applies directly to Metro, and the state constitution’s Home Rule Amendment therefore also applies, even under the Court’s reasoning,” according to the Cooper administration.

It’s unclear whether the high court will entertain Nashville’s push for reconsideration. Appeals Judge Skip Frierson was sitting in on the case after the death of Justice Connie Clark and turned out to be the tiebreaker in the case.

Here’s the release from Mayor Cooper’s office:

NASHVILLE, TENN. – Today, Metro Nashville filed a petition asking the Tennessee State Supreme Court to review its recent 3-2 decision that found the state’s school voucher program, known as the Education Savings Account Act (ESA Act), to be constitutional, effectively clearing the way for it to move forward. Metro Nashville previously challenged the law’s constitutionality based on the “Home Rule Amendment,” which says that an act of the Legislature that is local in its form or effect, applicable to a county or municipality in its governmental or proprietary capacity, is void, unless approved by a two-thirds vote of the local legislative body or by local referendum.

Alongside key Nashville leaders for our public schools, Mayor John Cooper will host a press conference tomorrow to talk more about this filing and supporting Metro Nashville Public Schools (MNPS). Details are below.

“Great public schools require consistent prioritization, because our kids’ future is our most critical investment,” said Mayor John Cooper. “The state already provides Metro Nashville Public Schools far less funding per student than almost every other county in Tennessee, and now a state voucher program threatens to syphon off even more money away from improving public schools and into the hands of private schools. We hope the Court will consider MNPS’ status as the public school system for both Nashville and Davidson County, and not allow the state to direct taxpayer money away from our schools without our consent.”

The court’s majority opinion, issued on Wednesday May 18th , found that the ESA Act doesn’t violate the “Home Rule Amendment” because “the Act regulates or governs the conduct of the local education agencies and not the counties.” In other words, the court ruled that the ESA Act applies to school districts, not counties, and therefore local-government protections in our state constitution do not apply.

Metro Nashville is asking the Court to review the ruling because the reasoning provided by the majority opinion is wrong, particularly as it applies to Nashville. The newly filed petition argues that as a metropolitan government, Nashville and Davidson County included their combined school systems in the new metropolitan government when our citizens voted in 1962 to consolidate and adopt the Metro Charter.

Because Nashville’s public schools are part of Metro, the ESA Act applies directly to Metro, and the state constitution’s Home Rule Amendment therefore also applies, even under the Court’s reasoning.

“Metro Nashville, through the Metro Council or its voters, has the legal right to say whether taxpayer funds should be spent on private schools,” said Wallace Dietz, Director of Law for Metro Nashville.  “Our state constitution demands no less. We don’t believe the Court’s reasoning for allowing the state’s voucher program to proceed should apply to Nashville, since we are a metropolitan government with a combined city and county school system.”

Dietz continued: “Additionally, The Court concluded that the Home Rule Amendment does not apply to the ESA Act because the face of the Act addresses school districts only and does not impose obligations on counties. Instead, the Act triggers existing county funding obligations by forcing school districts to include students participating in the ESA program in their enrollment counts, even though the students are not attending public schools. This ruling conflicts with other Tennessee Supreme Court cases applying the Home Rule Amendment to bills that did not on their face require counties to do anything, but triggered obligations in existing law.”

Additional background: For much of Tennessee’s history, local governments were viewed simply as creatures of the Legislature, subject to its control at will. That one-sided balance of power shifted dramatically in 1953 when Tennessee held a limited Constitutional Convention that focused primarily on state encroachment on local prerogatives.  The main concern was the Legislature’s historic abuse of local legislation, the passing of laws that impacted only one or a small number of counties.  The Convention overwhelmingly approved the Home Rule Amendment to the Tennessee Constitution.  The Home Rule Amendment was approved by Tennessee voters in 1953 and has been a part of our state constitution ever since.

Lee: Unclear when voucher program can get off the ground following high court ruling

Gov. Bill Lee delivers his State of the State Address on Jan. 31, 2022. (Erik Schelzig)

Republican Gov. Bill Lee is hailing the Supreme Court’s decision upholding school vouchers but says “a lot of steps” are still required before the program allowing parents in Nashville and Shelby County to spend taxpayer dollars on private school tuition can go live.

“Once we determine the speed with which the court will make its final decisions, then we can move forward with the particulars to make sure this works and fits, and how it is that we roll it out,” The Associated Press quoted the governor as saying on Friday.

The Supreme Court ruled in a 3-2 decision that the voucher program doesn’t violate the state constitution’s home rule protections, which prevent the General Assembly from passing bills targeted at specific counties without local buy-in. The voucher law affects school districts — which aren’t covered by the home rule provision — and not the counties that fund them, the high court ruled.

Despite the voucher program being frozen since 2019, the Lee administration has included a recurring $29 million item in the budget to cover its costs in the event legal challenges were turned back. But the money has been dedicated toward other priorities, including for the spending plan for the budget year beginning on July 1.

It remains to be seen how much appetite lawmakers have to revisit the voucher question. Of the 51 House members who voted for the final version of the bill in 2019 (just one more than the constitutional minimum), only 37 are up for re-election this fall. Here’s the list of voucher backers who will no longer be around next year:

Mike Carter (R-Ooltewah). Died of pancreatic cancer in May 2021.

Glen Casada (R-Franklin). Not running again this year. Lost bid for Williamson County clerk earlier this month.

Michael Curcio (R-Dickson). Not running again this year.

John DeBerry (D-Memphis). Lost re-election bid as an independent in 2020 after state Democrats decided he couldn’t run in their primary. Now in the Lee administration.

Bill Dunn (R-Knoxville). Didn’t run again in 2020. Now in the Lee administration.

Mark Hall (R-Cleveland). Running for state Senate this year.

Matthew Hill (R-Jonesbough). Lost Republican primary in 2020.

Timothy Hill (R-Blountville). Didn’t run again in 2020. Lost bid for Congress.

Andy Holt (R-Dresden). Didn’t run again in 2020. Now in the Lee administration.

Bill Sanderson (R-Kenton). Stepped down in August 2019.

Jerry Sexton (R-Bean Station). Not running again this year.

Robin Smith (R-Hixson). Resigned in March after pleading guilty to participating in a kickback scheme.

Rick Tillis (R-Lewisburg). Lost Republican primary in 2020.

Micah Van Huss (R-Gray). Lost Republican primary in 2020.

Two other representatives abstained when the vote was initially recorded, but later changed asked the clerk to have their votes changed to yes. The moves are considered a formality because they only be accepted if it doesn’t change the outcome. Neither won’t feature in the next General Assembly:

Martin Daniel (R-Knoxville). Didn’t run again in 2020.

Brandon Ogles (R-Franklin). Not running again this year.

New TNJ edition: Lee’s signature bill and Lee’s unsigned bills

Gov. Bill Lee speaks at a press conference in Nashville on Jan. 23, 2020. (Erik Schelzig, Tennessee Journal)

The latest print edition of The Tennessee Journal is out. Here is what’s in it:

— Lee’s signature voucher law gets Supreme Court win. Now what?

— Unsigned, Bill: Governor avoids vetoes but increasingly turns to refusing to sign measures.

— From the campaign trail: Winstead runs first ad and gets a conservative endorsement, Ortagus launches a PAC, and The Tennessean lets ousted GOP candidate Starbuck attend forum anyway.

Also: The big Legislative Plaza overhaul gets the green light, a potential defense witness for Brian Kelsey’s federal trial dies, Nashville mayor’s office blames “clerical error” for missing $200 million in cost projection for football stadium, and a “satisfied customer” gets escorted out of a Registry meeting.

As always, access the your copy of the TNJ here.

Or subscribe here.

Supreme Court finds Lee’s school voucher program doesn’t violate home rule protections

Gov. Bill Lee speaks in the Old Supreme Court Chamber of the state Capitol in Nashville on March 22, 2021. (Erik Schelzig, Tennessee Journal)

Three years after lawmakers narrowly passed Gov. Bill Lee’s signature school voucher program, the state Supreme Court has overturned lower courts’ findings it violated home rule protections against laws targeted at individual counties by applying only to Nashville and Shelby County.

The 3-2 decision released Thursday came after the high court decided to rehear arguments following the death last year of Justice Connie Clark. Court of Appeals Judge Skip Frierson sat in on the case and sided with Chief Justice Roger Page and Justice Jeff Bivins. Justices Sharon Lee and Holly Kirby dissented.

UPDATE: When the voucher bill passed it was tied to moving dollars calculated through the Basic Education Program to cover private school tuition. Lawmakers this year approved an overhaul of the school funding formula called Tennessee Investment in Student Achievement, which funds individual students rather than districts as a whole. The Lee administration included a provision in the law to change the funding mechanism for the voucher program from the old formula to the new one:

SECTION 53. Tennessee Code Annotated, Section 49-6-2603, is amended by deleting the language “basic education program” wherever it appears and substituting “Tennessee investment in student achievement formula (TISA)”.

Here’s the release from the Administrative Office of the Courts:

In an opinion released today, the Tennessee Supreme Court determined that, while two Tennessee county governments had standing to challenge the Education Savings Account Pilot Program (the “ESA Act”), the Act is not rendered unconstitutional by the Home Rule Amendment, article XI, section 9, of the Tennessee Constitution.

In 2019, the Tennessee General Assembly enacted ESA Act. The Act establishes a program allowing a limited number of eligible students to directly receive their share of state and local education funds, which would ordinarily be provided to the public school system they attend, to pay for a private school education and associated expenses.

The Metropolitan Government of Nashville and Davidson County, Shelby County Government, and Metropolitan Nashville Board of Public Education filed a declaratory judgment action that named as defendants Governor Bill Lee, the Tennessee Department of Education Commissioner, and the Tennessee Department of Education. The trial court also allowed additional parties to intervene and participate as defendants. The complaint alleged that the ESA Act violates several provisions of the Tennessee Constitution, including the Home Rule Amendment, the equal protection clauses, and the education clause.

Defendants filed separate motions challenging Plaintiffs’ standing to pursue the claims presented and the legal sufficiency of those claims. Plaintiffs, in turn, filed a motion for summary judgment with respect to their Home Rule Amendment claim. The trial court determined that the two county plaintiffs had standing to pursue the claims, but it dismissed the Metro School Board as a plaintiff for lack of standing. The trial court also granted the motion for summary judgment concluding that the ESA Act violates the Home Rule Amendment and enjoined the State from implementing the Act. The trial court reserved ruling on Defendants’ challenges to the equal protection and education clause claims.

The trial court granted Defendants permission to seek an interlocutory appeal, and the Court of Appeals granted Defendants’ applications for appeal. The intermediate appellate court affirmed the trial court, holding that Metro and Shelby County had standing to challenge the ESA Act under the Home Rule Amendment and that the Act was unconstitutional pursuant to the Home Rule Amendment.

The Tennessee Supreme Court granted Defendants’ applications for permission to appeal. Because it is an interlocutory appeal, the issues before the Court were limited to the constitutionality of the ESA Act under the Home Rule Amendment and Plaintiffs’ standing to bring that challenge. The Supreme Court agreed with both the trial court and the Court of Appeals that Plaintiffs Metro and Shelby County had standing to bring their Home Rule Amendment Claim. However, the Supreme Court, after reviewing the applicable constitutional language, held that the ESA Act is not rendered unconstitutional by the Home Rule Amendment because the Act is not “applicable to” the Plaintiff counties for purposes of the Amendment. The majority concluded that the ESA Act is not applicable to the Plaintiff counties because the Act regulates or governs the conduct of the local education agencies and not the counties. Thus, the Act does not violate the Home Rule Amendment. The Supreme Court therefore affirmed, in part, and reversed, in part, the judgment of the Court of Appeals and remanded the case to the trial court for the dismissal of the Home Rule Amendment claim and for consideration of Plaintiffs’ remaining claims.

Justice Sharon G. Lee and Justice Holly Kirby joined in a separate opinion, concurring in part and dissenting in part. They agreed with the Court that Metro and Shelby County had standing to challenge the ESA Act but concluded that the Act violates the Home Rule Amendment. In their view, the ESA Act substantially affects Metro and Shelby County’s ability to self-govern and decide school funding issues. Under the ESA Act, only Metro and Shelby County and no other counties in the state must pay for students who leave public schools and use their vouchers for private school tuition. Because the ESA Act is local in effect and application, and because the Act gives Metro and Shelby County no choice in the matter, it violates the Home Rule Amendment.

To read the majority opinion in Metropolitan Government of Nashville and Davidson County, et al. v. Tennessee Department of Education, et al., authored by Chief Justice Roger A. Page, and the separate opinion authored by Justice Sharon G. Lee, visit the opinions section of TNCourts.gov.

Brandon Ogles won’t seek third term in state House

Rep. Brandon Ogles attends a House floor session in Nashville on Jan. 31, 2022. (Erik Schelzig, Tennessee Journal)

Rep. Brandon Ogles says he won’t seek a third term in the Tennessee House.

The Franklin Republican was elected in 2018 on a platform that included opposing school vouchers. But upon arriving at the Capitol, Ogles became a key ally to then-House Speaker Glen Casada (R-Franklin) and his chief of staff, Cade Cothren, and voted for the voucher measure in a controversial 50-48 floor vote in 2019.

Casada and Cothren have been implicated by former Rep. Robin Smith (R-Hixson) of participating with her in a scheme to drive business to shadowy campaign vendor called Phoenix Solutions, which they allegedly controlled. Ogles has not been named as part of the investigation, but he has been a vocal defender of Casada, speaking out at a Williamson County chamber of commerce event recently against a Registry of Election Finance subpoena issued for the former speaker and other current and former lawmakers to testify about another mystery political action committee involved in defeating Republican Rep. Rick Tillis (R-Lewisburg). The Registry has since referred its probe to prosecutors in Williamson County.

Ogles missed about four weeks of last year’s session with what he said was a severe case of COVID-19. The lawmaker says he will work as advocate for victims of violent crimes.

Here is Ogles’ Facebook statement on his retirement:

Report: Calfee says he heard Casada offer generalship during voucher impasse

Rep. John Mark Windle (D-Livingston) speaks with Rep. Susan Lynn (R-Mt. Juliet) in the House chamber on April 23, 2019. (Erik Schelzig, Tennessee Journal)

Rep. Kent Calfee tells the Tennessee Lookout’s Sam Stockard he heard then-House Speaker Glen Casada propose a generalship to Democratic Rep. John Mark Windle in return for backing a controversial school voucher proposal in 2019.

With a vote knotted at 49-49 in 2019, Casada infamously kept the board open for 45 minutes to try to persuade someone to switch their position and keep first-year Gov. Bill Lee’s signature bill from an embarrassing defeat.

Calfee (R-Kingston) said he was standing on the balcony outside the House chamber when he heard Casada (R-Franklin) make the pitch to Windle, a Livingston Democrat who is a colonel in the Tennessee National Guard.

“I heard Casada say, ‘I can’t promote you, but the governor can. I’ll call the governor,’” Calfee told the Lookout.

“Now, the governor and I have discussed that, because he also, he called me up to the office,” Calfee recounted. “He said, ‘You know, you’re kind of talking bad about me.’ I said I told the truth.”

Lee was asked by reporters this week about the alleged offer of a generalship to Windle. He said he didn’t know anything about it.

Windle didn’t change his opposition to the voucher bill. But the measure passed after Rep. Jason Zachary (R-Knoxville) agreed to flip in favor of the bill after being assured his home county would be exempted from the measure.

Read Stockard’s full report here.

New TNJ edition alert: Redistricting lawsuit, oral arguments over vouchers, 5th District field grows

The latest edition of The Tennessee Journal is out. Here’s what’s in it:

— Democratic lawsuit claims GOP remap unlawful for county splits, district numbers.

— Likely swing vote silent in Supreme Court rehash of voucher arguments.

— Harwell, Winstead join 5th District race despite Trump endorsement.

— Slatery slams legislative proposal to move consumer advocate office.

— After pandemic-related stagnation, lobbying spending on rise in 2021.

Also:

Lee unveils details of proposed overhaul of school funding formula, Juneteenth holiday runs into House roadblock, HBO’s John Oliver mocks John Ragan, and a fee to access to the Sunsphere observation deck.

As always, access the your copy of the TNJ here.

Or subscribe here.

Senate deals setback to effort to block local governments from suing state

The Tennessee Senate meets on June 1, 2020. (Erik Schelzig, Tennessee Journal)

The Senate on Monday rejected a proposal by Sen. Brian Kelsey (R-Germantown) to ban local governments from filing lawsuits to challenge the constitutionality of laws passed by the General Assembly.

Kelsey said his bill would only apply to lawsuits filed after the bill went into effect. But he cited recent legal challenges over school vouchers, voter ID, and funding for large school districts as examples of litigation he is seeking to outlaw.

Kelsey’s bill went off the rails when Republicans like Sens. Ken Yager of Kingston and Page Walley of Bolivar began questioning why local governments should be prevented from challenging the constitutionality of measures that may bring them fiscal harm.

Walley noted that when he was a state House member in the 1990s, 77 small school districts successfully sued the state for more equal education funding. Kelsey argued that instead of the lawsuit filed by the late Lewis Donelson, the small school districts should have pursued their aims by “talking to the legislature.”

Walley agreed it would have been better for the General Assembly to act on its own accord, but recalled “an intransigence” on the part of lawmakers that prevented a solution at the time.

The vote on Kelsey’s amendment failed 14-14, with three Republicans and two Democrats missing the vote. Kelsey asked to move his bill to Wednesday, at which point he is expected to introduce another amendment seeking similar restrictions.

Kelsey’s amendment failed on a 14-14 vote on April 26, 2021.

Voucher supporters’ poll indicates wide backing for school choice

House members attend a floor session in Nashville on Jan. 12, 2021. (Erik Schelzig, Tennessee Journal)

School voucher supporters are out with some new national polling showing wide support for school choice. Opponents have long argued the polling questions are loaded to turn out the most favorable results.

The polling comes as a faction of state Republicans take their latest run at ending automatic paycheck deductions to pay union dues to the Tennessee Education Association, the state’s largest teachers’ union. Similar efforts have foundered in committee and on the Senate floor in prior years.

The TEA’s political action committee is one of the most generous donors to state lawmakers of both parties.

Here’s the release from the American Federation for Children:

Parents and families have been on a rollercoaster when it comes to K-12 education in the time of COVID-19. A new poll from Real Clear Opinion Research finds overall support for school choice is increasing as parents need more options than ever.

Major findings:

— 71% of voters back school choice. This is the highest level of support ever recorded from major AFC national polling with a sample size above 800 voters.

— 65% support parents having access to a portion of per-pupil funding to use for home, virtual, or private education if public schools don’t reopen full-time for in-person classes.

Statement from John Schilling, President of the American Federation of Children:

“The continued very strong support among voters for school choice and spending flexibility for parents of school-aged children is a clear message for policymakers. Parents and families are demanding greater choice in K-12 education and they expect policymakers to put the needs of students ahead of the special interests who are bound and determined to protect the status quo.

“The need for education freedom is at an all-time high and it’s reaffirming to see many state policymakers stepping up and supporting school choice across the country. Thirty-two states have introduced 36 bills to create or expand educational choice and we urge policymakers in these states to get these bills over the finish line on behalf of families and students.”

Full Details:

Question: School Choice

School choice gives parents the right to use the tax dollars designated for their child’s education to send their child to the public or private school which best serves their child’s needs. Generally speaking, would you say you support or oppose the concept of school choice?

Support:

All: 71%

Race & Ethnicity:

White: 73%
Black: 66%
Hispanic: 68%
Asian: 66%

Party ID:

Democrat: 69%
Republican: 75%

Question: Funding students vs. funding systems

On average, American taxpayers spend $15,424 per student nationwide on K-12 public education. Would you support or oppose giving parents a portion of those funds to use for home, virtual, or private education if public schools do not reopen full-time for in-person classes?

Support:

All: 65%

Race & Ethnicity:

White: 65%
Black: 63%
Hispanic: 60%
Asian: 69%

Party ID:

Democrat: 66%
Republican: 67%

Question: Faith in teachers’ unions

In many states, teachers’ unions have advocated to keep public schools closed and continue virtual learning instead of reopening school buildings. Meanwhile, 92% of private Catholic schools were operating with in-person learning in September. Does this make you feel more or less favorable towards teachers’ unions that oppose re-opening?

More Favorable: 36%

Less Favorable: 47%

Date: March 12-17, 2021
+/- 2.44%

More school choice polling can be found at www.SchoolChoicePolling.com