With school about to begin, voucher foes aim to stop program

NASHVILLE, Tenn. (AP) — Opponents to a contentious Tennessee school voucher program on Friday argued the state is acting in a “haphazard fashion” attempting to roll out the initiative ahead of the new school year as they asked a panel of judges to once again block the 2019 law from being implemented.

Tennessee’s highest court in May spiked a key legal roadblock that had prohibited the voucher law from going into effect. Soon after, Republican Gov. Bill Lee — who had championed the statute as it squeaked through the Republican-controlled Statehouse — announced that interested parents would be able to enroll for the 2022-23 school year.

The announcement sparked a mad dash, as state education officials who were previously forbidden from working on the program quickly launched an application and vetting process ahead of when kids go back to school starting Monday. Meanwhile, opposing attorneys scrambled to file motions seeking to block the program once again.

Known as education savings accounts, eligible families would be allowed to use up to approximately $8,100 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. The Tennessee Department of Education has since said that nearly 2,100 families have applied but it is unclear how many will qualify after the ongoing vetting process.

Republicans repeatedly amended the proposal in 2019 to ensure it applied only to Democratic-controlled Nashville and Shelby County, which includes Memphis, after acknowledging it was unpopular among their constituents.

The two counties were among the entities that quickly sued over the program, challenging the legality of the statute, along with several families.

By carving out Nashville and Shelby County, the state violated its constitutional equal protection clause because it treated those two regions differently than the remaining 93 counties, said attorney Allison Bussell.

Attorneys had previously argued that carve-out violated the state’s constitutional “home rule” provision, which says the Legislature can’t pass measures singling out individual counties without local support. Yet ultimately the Tennessee Supreme Court decided that the voucher statute didn’t apply, forcing opponents to revive other arguments.

Supporters, meanwhile, have maintained that the school voucher program does not impact Tennessee’s public education system, but instead provides choices to families stuck in poor school districts. Those low-performing schools are overwhelming located in Nashville and Shelby County, said attorney Brian Kelsey, a former Republican state senator who voted in favor of the bill in 2019.

Kelsey added that the concerns over the equal protection clause should be dismissed because “education is not and has never been declared Tennessee to be a fundamental constitutional right.”

Critics of the program disagreed.

“Defendants are essentially saying we’re failing to provide an equality of educational opportunities through a system of free public schools, so let’s have those kids abandon the system,” said Chris Wood, a separate attorney representing the families opposed to the voucher program. “That is not what the Constitution requires. It requires the equality of educational opportunities to be provided through a system of free public schools, period.”

The arguments were made on Friday before a three-judge panel, which promised to issue a ruling soon but did not say if it would be before Monday, when most public schools begin the new year.