The Tennessee Education Savings Account Act (ESA) passed the Tennessee General Assembly and will be sent to Governor Bill Lee for his signature. Lee, a first-term governor, championed a more robust proposal on the campaign trail. Tennessee will become the only state to operate two ESA programs in the nation. This program, when enacted, is likely to meet a few legal challenges.
There are some who questioned the constitutionality of the legislation. The purpose of public education under the Tennessee Constitution is stated:
The state of Tennessee recognizes the inherent value of education and encourages its support. The General Assembly shall provide for the maintenance, support and eligibility standards of a system of free public schools.
Will this program still be considered part of that system? Some critics have argued that because the program targets Shelby County and Davidson County, it should be considered unconstitutional. I would suggest that is a weak argument. The exclusion of immigrant children, in our opinion, is clearly unconstitutional. In 1982, the United States Supreme Court ruled in Plyler vs. DOE that children in our country who are here illegally have the same right to attend public schools as other citizens. In addition, these children are obligated to attend school until they reach a mandatory age. That issue will need to be addressed.
For the most part, the debate this year was fairly civil and the dialogue substantive. Governor Lee has his signature legislation. Senator Johnson, Senator Kelsey, and Senator Gresham, as well as Representative William Lamberth, Representative Bill Dunn, Representative Andy Holt, and Representative Mark White, led the effort on behalf of Governor Lee in the Tennessee General Assembly. There was quite a bit of opposition from groups like the Tennessee Organization of School Superintendents, Tennessee School Boards Association, and Professional Educators of Tennessee. There were ancillary groups, some from outside the state, that engaged for and against the legislation. US Secretary of Education Betsy Devos also made an appearance.
So, what happens next? After the governor’s signature and the effective date of enactment, the state will start to roll out the program. There may be legal challenges to the program. Likely, the most valid issue that may need to be addressed is the lack of inclusion of immigrant children to become compliant with the Plyler case. Whether this goes to the Tennessee Supreme Court or the United States Supreme Court will largely depend on which party brings forth a legal challenge and in what venue. That may necessitate a review of the legislation by a future Tennessee General Assembly.
Supporters of the program wisely never identified ESAs as the solution to all the problems in public education. And clearly, it isn’t. In the end, just like magnet schools, community schools, and charter schools, ESA’s will be viewed as another reform effort. Its success or failure will largely be defined by the students who participate in the program. Regular public schools will remain the choice of the vast majority of children in our state.
For those who opposed the legislation, it is time to move forward. Let’s keep the dialogue going. It means moving forward while we champion innovative approaches that encourage our schools and their communities to work together and design solutions without bureaucratic hurdles. No “one size fits all” strategy will work in every school or district. This is a recurring premise among those of us who believe in local control of public education. It is more important than ever for our state’s children to receive a high-quality education. Schools and districts must be nimble, responsive, equitable, and innovative. For that to occur, we must champion fewer regulations and more freedom and flexibility – especially in our higher achieving districts.
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JC Bowman is the Executive Director of Professional Educators of Tennessee, a non-partisan teacher association headquartered in Nashville, Tennessee. Permission to reprint in whole or in part is hereby granted, provided that the author and the association are properly cited.
Background Photo “Tennessee ESA Voting” by Randy McNally.