Tennessee to proceed with school voucher applications as governor promises to appeal ruling overturning the law

Gov. Bill Lee, a Republican businessman from Williamson County, became Tennessee’s governor in January of 2019. (TN.gov)

Gov. Bill Lee vowed Tuesday that his campaign to give parents more education choices for their children isn’t over after a court struck down Tennessee’s 2019 voucher law.

The Republican governor said the state will appeal a Nashville judge’s decision Monday ordering a halt to this year’s rollout of education savings accounts. 

And he encouraged eligible parents in Memphis and Nashville to continue applying through Thursday, the deadline to seek to participate in the program.

“We believe that it will continue to move forward,” Lee said of education savings accounts, which would give an average of $7,100 annually to help families pay for private school tuition or other private education services.

“I believe that, now more than ever, a high-quality education starting this next year is important for Tennessee students,” he added.

Lee’s comments — responding to reporters’ questions during a daily COVID-19 press briefing — were the first since Davidson County Chancellor Anne C. Martin declared the statute unconstitutional, setting the course for a new round of legal challenges.

They also raised concerns from other attorneys in the case about whether the governor is complying with Martin’s order by continuing the application process.

“The governor’s statement is concerning,” said Bob Cooper, law director for Metropolitan Nashville government and a former state attorney general. “We are talking with the attorney general’s office about what the state needs to do to comply with the court’s injunction.”

Martin said the law, which Lee championed and signed last year, violated the state constitution’s “home rule” provision because it applied only to students in Tennessee’s two largest cities, where numerous government bodies had passed resolutions opposing the program. Both counties subsequently sued the state, followed by a second lawsuit filed by several groups representing parents there.

A spokeswoman for Attorney General Herbert Slatery III confirmed Tuesday that the state will appeal the court’s decision.

In her order, Martin gave the state permission to take its case to the state Court of Appeals. However, it will be up to that court whether to consider the appeal.

The law came out of one of the most contentious legislative battles in Tennessee in recent memory. Weekly, daily, and even hourly revisions gradually narrowed the bill’s application to two counties with low-performing schools after initially applying to six. As they received assurances from House leaders that their counties would be shielded, GOP lawmakers representing other districts with struggling schools changed their votes to support the bill, which narrowly passed in the House of Representatives, where similar proposals had stalled for years.

“The entire process of the General Assembly, including the amendments and ‘horse trading’ associated with changing eligibility criteria to satisfy legislators who wanted their counties excluded, resulted in an act that, in form and effect, is local,” Martin wrote in her 32-page order.

Her decision elicited strong reactions from both sides of the debate.

“I am overjoyed that the Chancery Court recognized the unconstitutionality of this program,” said Stephanie Love, a board member for Shelby County Schools. “Under this proposal, the district would lose millions of dollars in state and local funding. As it stands, we struggle to provide a wide range of educational opportunities to strengthen equity for our students while remaining underfunded.”

Arif Panju, managing attorney at the Institute for Justice, one of three pro-voucher groups that had joined the case, said his organization will appeal the judge’s decision as well.

“In striking down an educational lifeline that will help low- and middle-income children trapped in failing schools, the court had to significantly expand the Tennessee Constitution’s home rule provision and apply it to a law that, on its face, required a county to do nothing — not exercise its power nor fund anything. That ignores the text of the Constitution.”

The leader of one education group challenged pro-voucher groups like the Institute for Justice to raise money to pay for the state’s appeal.

“The cost of the appeal and continuous appeals will be borne by taxpayers. I am not certain, given the state’s perilous finances, this will be popular with voters who continue to support public education,” said JC Bowman, executive director of Professional Educators of Tennessee.

The legislature will take up the state budget again when lawmakers reconvene, possibly after Memorial Day, to address significant revenue losses caused by the coronavirus pandemic. But Lee said approximately $40 million set aside for the voucher program should be preserved.

“If ever we need to be investing in education for kids, now is the time,” he said.

 Asked about the decision in March to slash hundreds of millions of dollars in planned investments in literacy and student mental health, the governor said those needs are still important.

I think we’ll be looking at educational initiatives,” he said. “In the future, the legislature, of course, will determine what the agenda is going to be.”

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