Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed Grassroots Engagement Director of Americans for Prosperity-Tennessee Grant Henry and Mayor Andy Ogles in studio to discuss why ruling by executive order is wrong and how states could bypass federal education funding and implement ESAs.
Leahy: Of course, we had the big Williamson County School Board meeting here. It’s a big mess. And to me, I think it is really illustrative of the problems we have with the federal government trying to tell everybody how to do schooling.
And they’re not very good at it. Here in Tennessee, if you track what various school districts are doing, here are the different dynamics.
The urban areas largely, although I think there are about eight county school districts that have imposed mask mandates. Shelby County in Memphis, Metro Nashville is another one. Williamson county had imposed a mask mandate.
They are complying with the governor’s executive order. Franklin Special School District last week put a mask mandate into effect. Although the governor’s executive order, he claims that his executive order allows school districts to impose mask mandates.
I don’t think he’s right about that. But he also says it allows parents to opt out. Generally speaking, the idea that parents have liberty is the right choice. I think it’s also what the law says, ultimately. I don’t think they have to have permission to opt out.
But nonetheless, that’s what the executive order says. Here are the dynamics of this, Andy Ogles, Mayor of Maury County. So you’ve got the urban liberal school districts saying we’re going to force everybody to lose their individual liberty and force the non-science-based mask mandates on kids.
Then you’ve got the governor saying, well, no, the parents can opt out. Now you’ve got the federal government saying, we’re going to sue you, Governor Bill Lee.
We’re going to sue you, Governor Ron DeSantis because you don’t have the authority to prohibit or, in the case of DeSantis, prohibit mask mandates. In the case of Bill Lee, to allow parents to opt out. I think the federal government has no role in telling schools what to do. What do you think about this, Andy?
Ogles: This is a good example of why ruling by executive order is a bad idea. Call a special session of the General Assembly. Let them address this through the proper process, pass a law, codify it, and state statute. And then now we have a place to stand from.
But instead, we’ve had 18 months of executive orders. We’re on what, 84 now? And so I would argue that the governor’s executive order doesn’t have a lot of teeth. And relative to Joe Biden’s, especially considering they hold the purse strings, they being the federal government.
Leahy: Well, they hold some purse strings. My whole pitch has been this, and I’d actually talked to a couple of state legislators. I’ve been pushing this for months. And that is the Tennessee General Assembly should pass a law that says we’re not going to take any federal money.
Take your federal money and put it where the sun don’t shine. That’s my idea, right? Because with money comes strings. And I will tell you, I’ve talked privately to several state legislators who actually think because of this overreach now, that’s not a bad idea.
And I think people are thinking of doing that. I know, Grant Henry with Americans for Prosperity, education reform is a big theme. How does this all play into the AFP agenda?
Henry: I completely agree with Mayor Ogles there when he said this sort of one-size-fits-all approach doesn’t work for most things. Whether it’s clothing or some type of public policy. Open enrollment is one key policy that we look to.
It will enable families to select the best public school for their children, instead of forcing them into their assigned school. Open enrollment is essentially a public school choice. Now, last year, we passed this bill. Rather, I’m sorry, it was House Bill 1305.
Mark White actually passed this bill. It allows public school choice within the same school district. I’m here saying like, hey, let’s expand that out. Let’s consider expanding that enrollment into neighboring school districts as well.
Leahy: So you know what’s wrong with that premise? I mean, I understand that. But the assumption is I am not a big fan of what’s happened to K-12 public schools anywhere in the country and in Tennessee.
I mean, you look at performance. Performance is plummeting in every public school district here. It’s not necessarily the case in some private schools. COVID had a lot to do with it as well.
But in my view is – I think the public schools are as currently constituted not salvageable because their main goal is to provide income to the teachers’ unions and income to the school administrators. And their main goal is no longer to teach kids how to read, write, and do arithmetic. That’s my view. Your thoughts?
Henry: Look, I think that’s where something like this educational savings account bill that’s currently stuck within the Tennessee Supreme Court, something like that could provide an avenue for parents.
Leahy: So let’s just stop here for a moment. Educational savings account bill. Let’s go back. This would be to 2019, right? Pre-pandemic America. I remember those good old days. Pre-pandemic America.
The state legislature passed the law, which in essence, allowed for educational savings accounts or vouchers in failing school districts in certain counties. And I think the only counties where they ended up applying were Shelby County and Davidson County. Do I have that right?
Henry: Yeah, that’s right.
Leahy: So that was a challenging court. The lower courts called it unconstitutional. Now it’s on the docket for the Tennessee Supreme Court.
Henry: Oral arguments have been held.
Leahy: When will that decision come out?
Henry: I’m not exactly sure. I was looking at updates on this the other day, but I’m still not sure when those will come down.
Leahy: Where do you think the Tennessee Supreme Court will come down on it?
Henry: I can tell you right now, I hope they come down, that they’ll still let this supply even on just some type of provisional basis.
There’s been a multitude of data suggesting that these issues, the policies work in other states that have tried this. And it’s about funding students, not bureaucracy. That’s what we’re getting here.
Leahy: We had positive things to say about the bill as a first step. But the problem was just isolating a couple of school districts that were underperforming in Shelby County, Davidson County, as the only places where it could happen.
I can see the argument there that it may not be constitutional. Andy, have you looked at this issue at all? What are your thoughts?
Ogles: The state legislature is prohibited from passing legislation that could be perceived as punitive towards a particular county or counties. And so that’s what happened. And so all it takes is one of those three counties or four counties to file a suit saying, hey, we don’t want that to occur.
And then immediately it becomes deemed unconstitutional. Whereas, say, Maury County, we may need a carve-out for something because of growth or whatever. And we can request the legislature do something on our behalf.
Leahy: It’s not punitive. It’s a positive thing for Maury County.
Ogles: That’s right. It’s being done at our request. And so that’s really the only time that the legislature can or should do anything specific to a county or counties. And that’s one of the things that a lot of people understand.
In your counties, in your cities, all of our authority is derived from the Tennessee General Assembly. We sometimes need them to act on our behalf to give us the authority to take action. The voucher plan was viewed as punitive by some of these districts.
Leahy: I think that legal principle to me has been established throughout the state of Tennessee that you can’t punish one county over the others.
I know there was a lot of discussion in the Lee administration to try to finesse that whole thing. I publicly said that was probably a bad idea back then.
Ogles: It was doomed from the start. All it took was one parent from one school district to file a lawsuit, and it was dead on arrival. They knew that.
They shouldn’t have done it. And I just shake my head at the time and energy and the political capital that was spent on that.
Leahy: Yes. Huge political capital. I share your view, and that kind of a bill with a punitive element in it for two counties was kind of doomed from the start. We do have some recent precedent.
Not at the Supreme Court, but a similar law for recall was passed that allowed the recall for school board members in one county only. We have 95 counties.
The law passed in 2019. They could only get it passed so it would only apply to counties with a population of between 90,000 and 99,000. That was Madison County, Jackson area. They tried to recall a school board member. That was the only county they could do it. And a judge – rightly so – said, this is unconstitutional. You cannot single out one county for this to apply. My guess is the same principle will apply in this case when we hear from the Tennessee Supreme Court. Grant.
Henry: Yeah, on the way out, I’ll say, look, I think ideally we should begin to start working towards fixing the basic education funding formula so that the funding will follow the child to whatever education option best meets their need.
It’s about funding students, more parental choice, not funding the bureaucracy itself. I think that’s one of the best solutions we can look to right now.
Leahy: We’ll have more when we come back.
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