by Vivian Jones
State officials are asking the Tennessee Supreme Court to allow a school-choice program to move forward after being ruled unconstitutional by lower courts earlier this year.
Tennessee Attorney General Herbert Slatery III filed an appeal to the state Supreme Court on Tuesday afternoon, appealing decisions of district and appeals courts.
The Education Savings Accounts (ESA) pilot program would provide state funded scholarships for low income students in Davidson and Shelby counties to attend private schools.
Nashville and Shelby County filed suit against the Tennessee Department of Education in February, claiming the program violated the state constitution’s home rule amendment. Under that provision, the state Legislature is prohibited from passing laws that apply narrowly to localities without local approval.
A Davidson County Chancery Court ruled the program unconstitutional in May, and the state appealed, hoping to roll out the program for the 2020-2021 school year. The state Supreme Court declined to hear the case directly in June, and the Court of Appeals ruled the program unconstitutional in September.
Attorneys defending the program are optimistic the Tennessee Supreme Court will rule in favor of the ESA program.
“The Home Rule amendment is designed to protect localities like cities and counties: it has no application to state agencies,” said Braden Boucek, vice president of legal affairs at the Beacon Center of Tennessee, which has intervened in the case. “The interpretation of the lower court that they attach to the home rule amendment is totally without precedent.”
Gov. Bill Lee has said he hopes to include funding for the program in his budget proposal next year if the court allows the program to move forward.
If the program is launched and is found to be successful over the first three years, the state has indicated it will expand the program to other school districts.
“It is the intent of the legislature that this ESA legislation, if proven successful after three years of implementation as a pilot program in LEAs in the state’s two most populous counties with the state’s poorest performing schools, is subject to future expansion to other LEAs statewide,” the state’s application for appeal reads.
Metro Nashville Public Schools has announced it will return all students to all-virtual learning after the Thanksgiving break for the remainder of the semester.
“Now, in the age of pandemic, when the schools aren’t even able to provide education period, it’s more necessary than ever for the school districts to be giving parents options,” Boucek said. “These are an educational lifeline for parents trapped in some of the worst school districts in the state.”
Legislation authorizing a five-year ESA pilot program in Shelby and Davidson counties narrowly passed the state Legislature in 2019.
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Vivian Jones reports on Tennessee and South Carolina for The Center Square. Her writing has appeared in the Detroit News, The Hill, and publications of The Heartland Institute.
Photo “Tennessee State Supreme Court” by Thomas R. Machnitzki. CC BY 3.0.