Shelby County government, Nashville sue state over 'unconstitutional' voucher program
Memphis and Nashville are taking on the state government, saying in a new lawsuit that Tennessee Gov. Bill Lee's Education Savings Account program is unconstitutional.
In a petition filed Thursday in Davidson County chancery court, attorneys for Nashville, Nashville's school board and Shelby County government argued the law creating the savings accounts put an illegal burden on only two counties. They want a judge to halt the controversial program’s rollout and consider eliminating it permanently.
The new lawsuit argues that because the law mandates policy in only two counties it violates the "home rule" in the state constitution. That rule says any law that affects isolated counties must also require local approval.
"The General Assembly cannot impose its will on only two counties without their approval," the lawsuit argues. "If the legislature believes that education savings accounts are good policy, it may pass a bill of general application so that all counties share the purported benefits of the program. If the legislature prefers to limit the bill’s application to two counties, it must include a local-approval option and hope the program’s merits will convince the affected counties to choose to participate.
"The ESA Act does neither and is the very model of such prohibited legislation."
Education Savings Accounts, a voucher-style program, use taxpayer funds deposited for families who withdraw their children from public school. The program is limited to Memphis and Nashville.
In an emailed statement, SCS said it supports "the challenges to the state’s Education Savings Act. Vouchers in Tennessee are an unfortunate roadblock on the path toward serving students in our state’s two largest cities. Shelby County Schools will persist in our mission to serve children and families and provide our students with excellent options for their education."
Lawsuit alleges vouchers are unconstitutional, as districts have said before
Superintendent Joris Ray has been vocal in his opposition to the program. In the midst of Ray's official appointment to superintendent position in April, SCS and Metro Nashville Public Schools issued a news release that stated that if the ESA bill became law, the districts were "prepared to evaluate and pursue all legal remedies."
“If the governor and legislature are determined to pass a general law that would apply arbitrarily only to us or a limited number of school systems, we will be sure to exhaust all of our legal options,” Ray said in the April statement.
Board member the Rev. Althea Greene said Thursday she and board members Michelle McKissack and Joyce Dorse-Coleman voiced opposition to the voucher program in meetings with Sen. Marsha Blackburn, as well as Congressmen Steve Cohen and David Kustoff in Washington, D.C. last week for the National School Board Association's advocacy and equity symposium.
“It’s my prayer that we as a district follow Nashville in filing a lawsuit against school vouchers,” Greene said.
The law says school districts may not challenge the legality of the ESA program. Neither Shelby County Schools nor the SCS board were co-plaintiffs in the suit filed Thursday.
Tennessee Rep. Bo Mitchell, D-Nashville, said the provision was included because the bill's sponsors "knew what they were doing was wrong."
"This was wrong from the beginning, it's still wrong and I can't wait for the courts to tell them it was wrong," Mitchell said.
Shelby County Schools board member Stephanie Love said she supports the county's position as a co-plaintiff, noting that if funding is diverted from the district for the program, the county may be forced to fill in those gaps. She said the board is "pursuing and considering all options."
“Until we begin to address the real challenges" for students, Love said, "we’ll continue to have the inequities we see.”
The lawsuit is the second dispute related to the state's education funding. The Nashville board, along with Memphis schools, is involved in a separate lawsuit that alleges the state is underfunding the district through the Basic Education Program.
Supporters of the ESA program expressed disappointment in the lawsuit even before the filing became public.
State Rep. Mark White, R-Memphis, who chairs the House education committee, said Thursday morning that he hates seeing an attempt to deny the program. White also said he hopes the lawsuit won't stop the state from moving forward with the program's implementation.
"So many young people in failing schools will be denied the opportunity to have the best education and that’s all the ESA bill was trying to accomplish," he said. "It was the will of the General Assembly to pass it in that manner.”
For the first three years of the program, the state will provide the two counties money to help offset any loss in per-pupil funding for those opting to leave public schools and participate in the program.
Based on BEP per-pupil funding, the lawsuit alleges SCS would lose around $21.6 million in funding during the first year of implementation. Nashville public schools would lose $16.3 million, according to the suit.
American Federation for Children Tennessee Director Shaka Mitchell, whose organization supports Education Savings Accounts, said the program is meant to serve some of the most struggling students and the hope from his organization is to see the program expanded statewide.
"To waste a bunch of money on litigation on a program that has been found constitutional time and time again in other states is unbelievable to me," Shaka Mitchell said.
And the Liberty Justice Center, a Chicago-based nonprofit law firm, released a statement saying it is preparing legal action on behalf of families that are planning to use the program.
The Education Savings Accounts
The ESA program is on schedule to begin next school year after Gov. Bill Lee pushed for the program to begin a year ahead of what was originally expected.
Rules were approved last week by lawmakers and will go into effect Feb. 25. In his 2020-21 budget, Lee is setting aside $15.3 million to begin the program.
When it begins, students in Metro Nashville Public Schools, Shelby County Schools and students zoned to attend a school in the state-run Achievement School District will be able to enroll in the program. In its first year, 5,000 students will be eligible. It will eventually expand to 15,000 students in Nashville and Memphis.
The program will shift $7,300 on average from schools for parents to use. Students will be able to attend approved private schools.
A controversial program
The lawsuit is yet another development for a controversial program.
The program looks substantially different from the proposal first introduced by Lee last year, which would have impacted several districts statewide. Lawmakers narrowed its scope to just the two counties and needed a compromise in both the House and Senate in order to secure enough votes.
Even then, the program passed in the House by one vote and only after former House Speaker Glen Casada, R-Franklin, held open a tied vote for over 40 minutes to find a member to change positions.
The House vote also has drawn criticism amid reports circulating about a possible federal investigation into whether improper incentives were offered to ensure the law's passage.
Soon after the vote, two Republican lawmakers who voted against the bill told The Tennessean they were offered incentives to support the program.
Casada has denied anything improper took place in the House vote.
Meanwhile, some lawmakers, including new House Speaker Cameron Sexton, R-Crossville, have called for the ESA program's implementation to be delayed until the following year, given the questions that remain.
A bill has also been introduced to repeal the program.
Rep. Bruce Griffey, R-Paris, and Rep. Bo Mitchell, D-Nashville, are co-sponsoring a bill that would end the program.
Joel Ebert and Natalie Allison contributed.
Laura Testino covers education and children's issues for the Commercial Appeal. Reach her at laura.testino@commercialappeal.com or 901-512-3763. Find her on Twitter: @LDTestino
Reach Jason Gonzales at jagonzales@tennessean.com and on Twitter @ByJasonGonzales.