Tennessee can begin rolling out private school voucher program, court rules, ending 2-year block

A gavel casts a shadow on top of a white table.
An order from a new three-judge panel allows Tennessee to proceed with its education savings account program, which has been on hold since 2020. (Catherine McQueen / Getty Images)

Tennessee can resume work on its mothballed private school voucher program after a judicial panel lifted a 2-year-old order blocking it.

On Wednesday, a three-judge panel cleared the way for Gov. Bill Lee’s education savings account program to proceed in Memphis and Nashville based on the recent Tennessee Supreme Court ruling upholding the 2019 voucher law.

Now the question is how quickly the state can roll out vouchers to provide eligible families with taxpayer money to attend private schools or to pay for private education services. 

In a statement, the governor said his administration will work “starting today” toward enrolling eligible students for the upcoming school year.

And at a court hearing on Wednesday, one of the state’s lawyers suggested Tennessee would pursue a launch soon, even as school starts next month and the law still faces other legal challenges.

A spokesman for the state education department declined to give a timetable, but said that the state “is excited to restart work to plan for implementation of the ESA program.”

The voucher program, which originally was to start in the fall of 2020, was the signature legislation of Lee’s first year in office after he had campaigned to give parents more choices for their children’s education. But it has been mired in legal battles for almost three years and has yet to provide a single student with voucher funds. 

During a court hearing on the status of the case, state officials were vague about a start date. But when pressed for a timeline by Chancellor Anne C. Martin, attorney Stephanie Bergmeyer suggested Tennessee could pursue a launch sooner than the 2023-24 school year.

“Those decisions haven’t been made because some of the analysis and the work within the department — contacting schools and parents — has not occurred because of the [previous] injunction,” said Bergmeyer, representing the state attorney general’s office.

Bergmeyer said launching the program at the beginning of a school year would be “an ideal implementation and time frame.” But she suggested the state could look to other points in the school year after checking with interested families and participating private schools.

“The state has not had any communication with potential participating schools to see if those deadlines could be amended for the 2022-23 school year,” she told the judges.

Experts say a program with the complexities of vouchers cannot be rolled out quickly. Private schools have application deadlines months before the school year starts — often by April or May — in order to make hiring decisions during the summer. The state also needs to receive, review, and approve applications from potentially thousands of families.

Martin told Bergmeyer she was surprised the state would consider deviating from the 2023-24 school calendar and warned state officials about setting “artificial timelines” that could rush either the department or the court.

“If we … go on some sort of incredibly sped up, incredibly expedited basis, we’re only going to do that if that’s really necessary because we want to do it right, of course,” said Martin, the chief judge of the new judicial panel that includes Judges Valerie Smith of Memphis and Tammy Harrington of Maryville.

Chris Wood, an attorney in a second lawsuit opposing the program, said his clients likely would ask the court to block the launch if the state pursues a swift path.

“School starts in less than a month,” Wood said. “If the state really is intending to do that, we would obviously have to consider whether we’re going to file for another injunction.”

The program has been stuck at the starting gate since mid-2020 when Martin overturned the law on the grounds that it violated the Tennessee Constitution’s “home rule” clause, since it was imposed on only two counties without their approval. But on appeal, the high court disagreed in May and said the home rule clause governs the actions of local school districts, not the counties that sued, even though they help fund those schools.

The law still faces other legal challenges based on a 2020 lawsuit filed by the Metropolitan Nashville and Shelby County governments, as well as a second lawsuit filed on behalf of 11 public school parents and community members in those communities. Those two cases likely will be consolidated soon by the judicial panel.

Among remaining complaints is that the law violates the state constitution’s “equal protection” clause, under which the state is obligated to maintain a system that provides for substantially equal educational opportunities for its residents. Attorneys for the plaintiffs argue that vouchers would create unequal systems by targeting two counties and diverting funds from their public school systems to private and home schools. 

Another issue is Tennessee’s transition to a new funding formula for the 2023-24 school year. The voucher law was created under the current formula that ends June 30, 2023. But the legislature revised the voucher law to use the new formula for determining the amount of taxpayer money awarded for vouchers.

Allison Bussell, an attorney representing Nashville and Shelby County, argued that the funding transition has “effectively delayed the implementation of the ESA Act” until after next July 1.

Later Wednesday, some education leaders asked why Lee is rushing a rollout.

“This could create more bureaucracy or use of outside contractors,” said JC Bowman, executive director of Professional Educators of Tennessee. “We know that there are also likely to be capacity issues and tuition challenges with some private schools, as well as not enough certified teachers.”

He added that a botched launch won’t bode well for the future of Tennessee’s pilot voucher program.

“Where tax dollars go, accountability must follow,” Bowman said.

Brandon Puttbrese, spokesman for the Tennessee Senate Democratic Caucus, seized on the new developments to slam the supreme court’s recent decision, which he said “circumvented years of judicial precedent for political expedience.”

Puttbrese added that voucher allocations “won’t come close to covering tuition at the best private schools, but it will steal real resources from public school students in need.”

Lee’s program originally designated about $7,300 annually to each eligible student who moves from public to private or home schools in Memphis and Nashville. But that amount likely would be higher when the state’s new funding formula takes effect. By law, the voucher program can start with up to 5,000 students in its first year, potentially reaching 15,000 students by the fifth year.

Marta W. Aldrich is a senior correspondent and covers the statehouse for Chalkbeat Tennessee. Contact her at maldrich@chalkbeat.org.  

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