vouchers

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

Supreme Court won’t intervene in voucher appeal

Gov. Bill Lee delivers his second State of the State address in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)

The Tennessee Supreme Court won’t reach down to hear appeal of Nashville judge’s ruling that Gov. Bill Lee’s school voucher law is unconstitutional. The state’s highest court also said it won’t lift injunction on implementing the program while the legal challenge is underway.

That means the case stays with the intermediate Court of Appeals, which isn’t scheduled to hear oral arguments until school is scheduled to resume in August.

Here’s the order:

On May 20, 2020, Intervening Defendants Ciera Calhoun, Greater Praise Christian Academy, Alexandria Medlin, Sensational Enlightenment Academy Independent School, and David Wilson, Sr. filed in this Court a motion to assume jurisdiction pursuant to Rule 48 of the Rules of the Tennessee Supreme Court and Tennessee Code Annotated section 16-3-201(d). On that same date, Intervening Defendants Natu Bah, Star Brumfield, Bria Davis, and Builiguissa Diallo filed a motion to assume jurisdiction. On May 21, 2020, Defendants the Tennessee Department of Education, Commissioner Penny Schwinn, in her official capacity as Education Commissioner, and Governor Bill Lee, in his official capacity, filed a motion to assume jurisdiction. On May 21, 2020, Defendants the Tennessee Department of Education, Commissioner Penny Schwinn, in her official capacity as Education Commissioner, and Governor Bill Lee, in his official capacity also filed a motion for review of orders denying a stay of injunction pursuant to Rule 7(a) of the Tennessee Rules of Appellate Procedure and Rule 62.08 of the Tennessee Rules of Civil Procedure. On May 29, 2020, Roxanne McEwen, David P. Bichell, Terry Jo Bichell, Lisa Mingrone, Claudia Russell, Inez Williams, Sheron Davenport, Heather Kenney, Elise McIntosh, Tracy O’Connor, and Apryle Young (collectively the “McEwen Plaintiffs”) filed a motion for leave to file an amicus brief and tendered their brief pursuant to Rule 31 of the Tennessee Rules of Appellate Procedure.

The McEwen Plaintiffs’ motion for leave to file an amicus brief is GRANTED, and the brief lodged by them shall be accepted as filed as of the date of this order.

The Court has carefully considered each of the motions to assume jurisdiction, the motion for review of orders denying a stay of injunction, Plaintiffs’ responses in opposition to those motions, and the brief of the amicus. Based upon the current totality of the circumstances, including the relevant timeline and the procedural posture of this case, the Court concludes that this case does not warrant the extraordinary action of the exercise of the Court’s authority to assume jurisdiction. As a result, the motions to assume jurisdiction must be DENIED. For similar reasons, the Court further concludes that the motion for review of orders denying a stay of injunction is DENIED.

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 applications go live amid coronavirus crisis

Applications are going live for the state’s new school voucher program amid the ongoing coronavirus crisis that has caused public schools to close their doors for several weeks.

Applications for the education savings accounts, or ESAs, will be accepted through April 29 — five days after Gov. Bill Lee’s current recommendation for schools to remain closed.

Lee caught many lawmakers off guard when he announced he would seek to launch the voucher program this coming August rather than wait to do so in 2021, a non-election year. But he nonetheless pressed ahead this year, even while making deep cuts to other proposed new programs amid the COVID-19 pandemic.

Here’s a video explaining the applications process:

House GOP leaders: ‘Trust us’ on secret budget discussions

The state Capitol was closed to visitors on March 16, 2020. (Erik Schelzig, Tennessee Journal)

After the House Republican supermajority holed up behind closed doors for 75 minutes to discuss the massive overhaul of the state’s budget in response to the coronavirus crisis, Majority Leader William Lamberth (R-Portland) and Caucus Chairman Jeremy Faison (R-Cosby) spoke to reporters about their justifications for the secret meeting.

Here’s a partial transcript of what was said:

Lamberth: We’re doing everything we can to make sure it’s a transparent process. That includes, from time to time having a caucus meeting that is a closed caucus meeting so they can merely have the information, but no decisions were made.

Q: Just to clarify, a closed caucus meeting is transparent?

Lamberth: Absolutely. It will be prepare us to be able to discuss this later. And everything that was said in that room will be said again on the record. We emphasized that to the members. No decisions were made, no votes were taken whatsoever, and none will be taken in there. What was done was to lay out a schedule for what will happen for the rest of the day, and to lay out the information they have that will be provided to anyone else who wants it.

Q: How will the public know what that schedule is?

Lamberth: What we’re asking is for you to trust us right now. We will continue to get that information out there every single day.

[….]

Q: The Senate rules dictate that when the caucus meets, because they have a majority of the chamber, they must be open. Why have you guys not followed suit, and why should the House supermajority be able to talk behind closed doors?

Faison: Obviously, we don’t follow what the Senate does. We do what we believe is right for our people and our members.

Q: And it’s right to meet behind closed doors when you have a supermajority?

Faison: If we were making a decision, or taking a vote, or whipping a vote or anything like that, I would be vehemently against closing our doors.

[…]

Q: What about the funding for the Education Savings Account law. Was that discussed?

Faison: We discussed what is currently in the budget that deals with ESAs, and the lack of it dealing with ESAs. There’s appropriation in this budget that a lot of people erroneously thought had something to do with implementing ESAs or making ESAs happen. In fact, the money that’s appropriated in this current budget is money that will go to the public schools in Nashville and Memphis.

Q: But that’s for the implementation of the ESA program.

Faison: It does not have anything to do with the implementation of the program. What it has to do with is if a student and their guardian chooses to come out of a public school, the money that follows them goes to the new school they’re going to and we have created a whole separate pot of money that holds that public school harmless. …. We’re in a place right now that we’re not going to get into the politics of what we did with the bills we passed last year.

[…]

Q:  Surely the money could be used to go toward the raises for teachers whose raises are going to be cut?

Faison: We do have a 2% raise for teachers. We’ve dialed back on a lot of stuff.

Q: Why not use the $37 million for the ESA program for teacher raises? If the program isn’t funded, it can’t go forward.

Lamberth: That is absolutely not true. And as my friend, you know that is not true. You are well aware what this money is for. Whatever talking point you got from the Democratic caucus is not accurate. This money in this budget goes to public schools. You know it and I would appreciate it you get that information out there.

Q: As a reminder, 20 Republicans voted against this legislation, so it’s not just Democrats.

Lamberth: That is a Democratic talking point, and you know it. This money goes to public schools. The ESA program can go forward without this money. It is our preference is to backfill any of that money to a public school.. That’s what this money goes to. Period.

About that whole voucher tax thing…

Gov. Bill Lee speaks to reporters on March 19, 2019, about his proposal to introduce an education savings account program in Tennessee. (Erik Schelzig, Tennessee Journal)

The revelation that Tennessee’s new school vouchers could well be considered taxable income by the IRS set off a furor at the statehouse among both supporters and opponents of the “education savings account” law.

Education Commissioner Penny Schwinn’s statement to the House Finance Committee appeared fairly unequivocal when asked during a Monday hearing: “My understanding is this is taxable, yes.”

Voucher supporters were quick to pounce, noting that the law includes a provision that states the more than $7,300 vouchers would not be considered income. But the caveat there is the state can only write legislation affecting Tennessee law. The IRS might have different ideas.

Schwinn told reporters she had come to that determination in consultation with state Attorney General Herbert Slatery’s office. But a spokeswoman for the AG said his office would not be in a position to weigh in on federal tax matters.

Schwinn’s spokeswoman later issued a new statement seeking to clarify matters:

The Commissioner’s comments at the budget hearing today were intended to reflect the possible need for the program’s filing and issuance of federal information reporting returns rather than taxability. We are continuing to work through the details of what will be required for ESA program implementation.

So where does that leave things for parents concerned about being hit with a big tax bill if they take the vouchers? It remains unclear. And now Democratic lawmakers are (perhaps inevitably) asking for a delay in the bill’s implementation so it can all be figured out.

Feds could consider school vouchers taxable income

Gov. Bill Lee speaks at the state Capitol on Sept. 16, 2019. (Erik Schelzig, Tennessee Journal)

Education Commissioner Penny Schwinn told lawmakers Monday that the federal government may consider money families receive under the Gov. Bill Lee’s school voucher program as taxable income.

(Update: There may be some backtracking going on.)

That may come as a surprise to lawmakers who voted for the bill that includes a provision stating that: “Funds received pursuant to this part …. do not constitute income of a parent of a participating student under title 67, chapter 2 or any other state law.”

As enacted, families in the Metro Nashville and Shelby County school districts earning up to 2.6 times the federal poverty level will be eligible for the program offering debit cards worth $7,376 — the equivalent of the average amount provided per student under the state’s school funding formula — to spend on expenses related to private school education. For a family of five, the income limit would be set at $76,500.

Schwinn told reporters after a House budget hearing that the tax determination was reached in consultation with the state Attorney General’s office.