by Tyler Arnold
A judge has blocked Tennessee from processing applications for a school-voucher program while the state appeals a ruling that said the program is unconstitutional.
Davidson County Chancellor Anne Martin ruled the state cannot remit funds for the program or engage with parents or schools about the program. The court also ordered the Tennessee Department of Education to post the current status of the lawsuit and encourage parents to have a backup plan in a statement on the program’s website in case the appeal fails.
“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 a Plan B,” Martin said Thursday in her ruling from the bench. “The court is going to deny the relief requested.”
Lawyers for the state and parents who would partake in the program cautioned the judge that if the state could not continue to process applications the program likely would not be able to run by next school year even if the appeal is successful. Attorney James Newsom had requested the judge allow the state to process applications as long as they inform the parents their acceptance is conditional on a successful appeal.
“The stop order … if it remains, will make it difficult, if not impossible, for the state defendants to provide the educational benefits to the children who are the intended beneficiaries of the ESA program for the upcoming school year,” Newsom said.
Tim Keller, an attorney for parents who planned to partake in the program, said preventing the state from processing these applications will cause irreparable harm to the parents because it ensures they will be unable to use the program next year even if it is deemed constitutional in an appeal.
“The parents may suffer real substantial and irreparable harm, your honor, if a stay isn’t put in place that could effectually allow them to take advantage of [the ESA program],” Keller said.
Newsom also argued the state is likely to succeed in this appeal.
The judge, however, sided with Davidson and Shelby county attorneys who argued the state should not be able to use any state resources for a program that was ruled unconstitutional. Attorney Allison Bussel said the state is unlikely to succeed with its appeal on the merits and said this does not constitute irreparable damage.
Bussel said parents already have school-choice options if they believe the public school system has failed them, such as charter schools. Bussel said none of these parents has provided evidence they’ve pursued these options.
“It is not irreparable harm that you don’t get to have your first choice,” said Bussel, who also said the defendants would have to show substantial irreparable harm and they are likely to succeed in their appeal, but they were unsuccessful in doing both.
House Democrats, who opposed the voucher program, have urged the Department of Education to reallocate the money.
The program, called the Education Savings Account program, would allow parents in low-performing schools to apply for public money to be used to send their children to state-approved private schools.
Martin ruled the program unconstitutional and in violation of home rule because all of the low-performing schools are in two counties with home rule, and the state is not allowed to target specific home-rule counties through legislation. The state argues the law targets low-performing schools based on a certain criteria that does not include location, which it says it is allowed to do.
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