Judge blocks Tennessee from proceeding with school vouchers pending appeal and urges parents to have ‘Plan B’

Davidson County Chancellor Anne C. Martin rules from the bench on Thursday as she denied the state’s motion to lift her earlier order halting Tennessee’s education savings account program.

A Nashville judge on Thursday blocked Tennessee from rolling out its school voucher program while appealing her ruling that overturned the state’s 2019 education savings account law.

Davidson County Chancellor Anne C. Martin also scolded the state education department for “mixed messaging” for not alerting interested parents about the legal status of the program.

Martin said the state could continue accepting applications through Thursday’s deadline from eligible families in Memphis and Nashville who want to use public funding to send their children to private schools. But she ordered the department to post a notice on its application website that the program has been halted pending an appeal.

“Whatever happens on appeal will happen. But the current status is the program is not going forward and parents need to be told to have a Plan B,” she said of the 683 completed applications on track to receive education savings accounts. As of Wednesday, another 1,226 applications were incomplete.

The judge was more forgiving of Gov. Bill Lee, who encouraged parents to continue to apply a day after Martin declared the law unconstitutional. Lee’s comments came on Tuesday during a news conference about the coronavirus when a reporter asked about the judge’s voucher ruling.

“The court does not take offense,” Martin said at the close of a 1½-hour hearing. “Honestly, things are moving very quickly. The decision had just come out the evening before. And the court assumes Gov. Lee was not prepared for the question, particularly at a COVID-19 press conference.”

The judge ruled from the bench after hearing from a dozen attorneys meeting by video conference due to the COVID-19 pandemic

Her decision is another setback for Lee, who said he wants parents to have more education choices for their children and made education savings accounts a legislative priority during his first year in office. 

“While we are disappointed the larger stay was denied, we are pleased that Tennessee families were allowed to continue applying to the program through today’s deadline,” said Gillum Ferguson, the governor’s press secretary. “We are working closely with the Attorney General to pursue an immediate appeal of the ruling.”

The case began with a legal challenge by local governments for Nashville and Shelby County, along with Nashville’s school board, arguing the law arbitrarily targets Tennessee’s two largest cities with a program that would saddle them with an unfair financial burden by transferring state and local funds from struggling public schools to private schools.

On Monday, Martin said the law violated the constitution’s “home rule” provision, which prohibits the legislature from singling out individual counties unless approved by two-thirds of the members of those counties’ legislative bodies, or a majority of voters. Local officials in Memphis and Nashville have consistently opposed private school vouchers. 

The state filed documents on Wednesday seeking to appeal the case to a higher court. It argues the state is responsible for education policy and that local governments don’t have standing to sue. The state also said halting the program now “will result in irreparable injury” to students and parents who have begun the application process and face “the prospect of returning to underperforming schools.” 

Attorneys representing Metropolitan Nashville and Shelby County governments, which challenged the law, noted that Lee ordered the program to launch this fall, a year earlier than required by law. 

“The State has created the so-called ‘irreparable harm’ by rushing the Act’s implementation contrary to legislative intent,” they argued in documents filed with the court. 

Earlier this week, Martin gave the state permission to seek an appeal.

“The court has moved as quickly as possible to hear motions and issue its opinions,” she said Thursday. “While I know the defendants do not agree with the court’s opinions and are appealing it, I … did my best to tee up this case for immediate review.”

But she warned Lee’s administration to be transparent with parents about the legal status of the program.

“It is not helpful when representatives of the state make statements to the public and press that are inconsistent with the court’s ruling and the true status of the program,” she said. “It is confusing to parents and indicates a disregard of the court and the rule of law.”

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