Tennessee’s controversial school voucher program in Nashville and Memphis can be implemented without court intervention, a three-member panel ruled Wednesday.
The program, which allows families in Nashville and Shelby County schools to use public funds for private school expenses and tuition, has been in legal limbo since it squeaked past lawmakers in 2019.
It was the most high-profile case tried before the nascent three-judge Super Chancery court, created by lawmakers last year to remove challenges to state law from Nashville’s bank.
“This controversy is merely a public policy disagreement and unfit for a judicial decision,” the majority wrote on Wednesday.
The panel’s chief justice, Davidson County Chancellor Anne Martin, partially disagreed with her peers, Justices Tammy M. Harrington and Valerie L. Smith.
Program suspended for two years until this summer
That summer, the panel allowed the program to continue this school year after the Tennessee Supreme Court overturned a previous stay of the initiative.
In Friday’s decision, the majority found the school district’s arguments that they would be harmed if public funds were taken from their budgets unproven, especially since the three-year pilot program is to be funded by the state, not local school districts.
Only after an actual budget gap would the districts have legal recourse to court.
Controversial from the start
The state argues that the program is designed to give students in underperforming schools a chance to attend private schools in hopes of a better education.
But districts say taking money away from underperforming school districts doesn’t help anyone. Also, a key point of their argument is that other counties that underperformed those in Nashville and Memphis are not part of the program and cite a possible violation of the same protections.
“We are not convinced,” wrote the majority. “As the county plaintiffs themselves state, their money is ‘the heart and soul of the ESA Act’ and therefore of this dispute. Any differential treatment between the county’s plaintiffs and the other districts of that state must result in differential treatment in funding.
“But the loss of money has already been remedied by the ESA law itself.”
Attorneys for certain defendants included former state senator Brian Kelsey, R-Germantown, who voted in favor of the law in the General Assembly and on Tuesday pleaded guilty to two counts of federal corruption in what prosecutors have described as campaign finance conspiracy to conspire to to benefit his failed bid for a seat in the US Congress.
Dissent: The shortage is real, also when it comes to financing
Martin, in contradiction, would have allowed the right to equal protection to continue, she wrote.
The counties claim that even if the funding for the pilot years is approved annually, it is insufficient to operate their counties under state law and other regulations.
Although the majority believed that the alleged lack of funding and the resulting damage were hypothetical at the time, Martin found sufficient basis in the districts’ arguments to support the case’s continuation.
The reported issue “is caused by a law that is in effect now, not three or more years from now,” she wrote.
Tennessee’s Attorney General celebrated the victory in a post on social media.
“The court’s decision secures access to additional educational opportunities for thousands of children in Shelby and Davidson counties,” wrote Attorney General Jonathan Skrmetti’s office.
The Institute for Justice says it is the nation’s leading advocate for school choice and was assisted by the Beacon Center of Tennessee in intervening in the case.
“Parents in Tennessee, like parents across the country, are embracing educational choice programs because choice empowers parents,” IJ executive director Arif Panju, senior attorney for parent representatives, said in an emailed statement.