NASHVILLE, Tenn. — Tennessee's highest court ruled Wednesday that Republican Gov. Bill Lee's school voucher program does not violate the state's constitution, clearing the biggest hurdle for a program that would let families use taxpayer dollars on private schools.
The Tennessee Supreme Court's 3-2 decision overturns several lower court rulings that had previously determined the program violated the Tennessee Constitution’s “home rule,” which says the Legislature can’t pass measures singling out individual counties without local support. The program has been blocked in court amid those rulings.
However, while Wednesday’s ruling marks a pivotal win for school vouchers to expand in Tennessee, it does not mean the case is over. The Supreme Court ordered the lawsuit to go back to a lower court to determine other lingering challenges. It remains unclear when or how the state would try to get the program up and running.
Under the law, the voucher program would apply only to Nashville and Shelby County, which includes Memphis, the areas with the lowest performing schools and regions with Democratic political strongholds who opposed the measure.
The law squeaked through the GOP-controlled General Assembly in 2019, with Republicans repeatedly tweaking the legislation to ensure it applied only to Democratic-controlled areas after acknowledging it was unpopular among their constituents. The bill's passage was marked by dramatic efforts to get it passed, including House leaders refusing to acknowledge the measure failed to secure enough votes during a floor vote. They instead lobbied various members out on a Capitol patio — where the public and reporters were banned — until a fellow Republican agreed to change his vote when he was assured the bill would be amended once more to exclude his legislative district.
“Every child deserves a high-quality education, and today’s Tennessee Supreme Court opinion on (the voucher law) puts parents in Memphis and Nashville one step closer to finding the best educational fit for their children," Lee said.
Tennessee Attorney General Herbert Slatery called the ruling a “major step forward,” but acknowledged there are “further court proceedings that need to take place.”
Known as education savings accounts, the program would allow eligible Tennessee families to use up to $7,000 in public tax dollars on private schooling tuition and other pre-approved expenses. The goal was to enroll up to 5,000 students the first year, potentially reaching as many as 15,000 students in its fifth year.
Supporters have long argued that ESAs are beneficial to providing families with more options to improve their child’s education when they likely did not choose to live in a poorly performing district.
“For the first time in Tennessee, students from low-income families will have state financial support to attend the school of their choice," said Daniel Suhr, an attorney with the Liberty Justice Center who defended the law, in a statement. “We are proud to have represented parents and schools for over two years in this fight to provide the best educational opportunities for Tennessee students.”
Yet teacher unions, parents and other education advocates have raised concerns that the law does little to improve the state’s failing schools because the program doesn’t address the needs of the students left behind.
Furthermore, local counties — which help fund public schools along with the state — are not allowed to reduce their school funding amounts if students enroll in the ESA program and leave the school district.
“If the Home Rule Amendment doesn’t stop the legislature from singling out 2 of 95 counties for injury, I’m not sure why we have a Home Rule Amendment,” Senate Minority Leader Jeff Yarbro tweeted soon after the supreme court's ruling dropped. “This decision is a real step backwards for Tennessee.”
Nashville leaders were quick to criticize the ruling. Adrienne Battle, director of Metro Nashville Public Schools, argued the decision “undermines the principles of local control” while warning it will harm taxpayers “who will ultimately be on the hook to pay for the state’s voucher scheme.” Meanwhile, a spokesperson for Nashville Mayor John Cooper promised the city would continue to “vigorously fight this law through all possible avenues.”
Another variable remains -- how the school voucher program would mesh with an overhaul to the K-12 school funding formula that Lee’s team managed to get passed this year. The new funding formula won’t kick in until the 2023-2024 school year, but Lee did allocate $29 million in the upcoming budget to pay for the voucher program.
Currently, five states allow some sort of ESA: Arizona, Florida, Mississippi, Tennessee and North Carolina. The Nevada Supreme Court struck down its state’s law after ruling that the funding mechanism was unconstitutional.
In Tennessee, there is an existing program that is fairly small and much more narrowly focused. Parents of students with certain disabilities can withdraw their children from public school and then receive up to $6,000 to pay for private educational services.