Tennessee high court listens to school voucher arguments

June 3, 2021 GMT

Tennessee’s highest court will soon decide whether a contentious school voucher program is constitutional after attorneys made their final arguments before the justices Thursday.

The program, which has never been implemented, has faced legality questions ever since the GOP-controlled General Assembly narrowly advanced the measure and Republican Gov. Bill Lee signed off on the law in 2019.

Last year, a lower court decided that the program violated the Tennessee Constitution’s “home rule,” which says the Legislature can’t pass measures singling out individual counties without local support. An appeals court later upheld that decision.

According to 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. Those Democratic lawmakers largely opposed the measure while Republican lawmakers repeatedly tweaked the legislation to ensure it didn’t apply to their regions.

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Tennessee’s attorney general office and school choice advocacy groups have countered that the state is in charge of providing education and thus the “home rule” measure does not apply.

On Thursday, attorneys also argued that voucher opponents — which include Nashville and Shelby County officials — do not have standing to sue because any concern of harm was speculation since the program had not been given a chance to be implemented.

Known as education savings accounts, the program would allow eligible Tennessee families to use up to $7,600 in public tax dollars on private schooling tuition and other pre-approved expenses.

Supporters argue 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 poor-performing district. 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.

“This ESA act is like the Hotel California — students check out of the school district but financially they never leave,” said Bob Cooper, Nashville’s law director.

“Because of the county requirement in the ESA statute, then that keeps the enrollment artificially high and keeps the county from taking advantage of then reducing its maintenance of effort,” Cooper added.

Cooper noted that more than 700 applicants applied in the ESA program before the lower court blocked its implementation. That means Nashville and Shelby County would have been forced to fund those children even though they weren’t enrolled at the public school districts.

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The justices did not indicate when a ruling may be issued. However, Lee told reporters earlier this week that should the high court uphold the law, Tennessee would be ready to implement the program in January.

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.