The Tennessee attorney general’s office urged a judicial panel Monday to dismiss remaining legal challenges to the state’s private school voucher law after a string of court victories cleared the way for the program’s launch this school year.
But attorneys for several plaintiffs, including county governments based in Memphis and Nashville, argued for a full hearing on several remaining constitutional claims over a 2019 law that applies to only two of the state’s 95 counties.
The plaintiffs also charged that after July, when the court lifted a 2020 order blocking the program’s start, the state “rushed” the rollout in a way that violates the law.
This week’s court hearing kicked off a new phase in the nearly 3-year-old legal dispute over the education savings account law, part of a nationwide tug-of-war between those wanting to use taxpayer money to give parents more education choices and others who say that approach strips funding from already underfunded public schools.
Meanwhile, Republican Gov. Bill Lee’s administration continues to approve vouchers worth about $7,000 annually to eligible families for their children to attend private schools in the state’s two largest cities.
As of Friday, the state education department had approved 128 student applications in Memphis and 131 in Nashville to apply toward tuition at 39 private schools. In all, the state has received 857 applications, with 134 deemed ineligible so far.
The Tennessee Supreme Court upheld the voucher law in May, rejecting the argument by Davidson and Shelby counties that the statute was unconstitutional because it applied only to them, without local approval.
But several legal claims remain in two lawsuits that the court consolidated. The state constitution says Tennessee is obligated to maintain a system of free public schools that provides for equal educational opportunities for its residents. Plaintiffs say vouchers would create unequal systems and divert funds from traditional public schools to private schools.
Arguing to dismiss the case altogether, the state’s attorneys said none of the plaintiffs have legal standing to challenge the law — nor have they demonstrated local harm from the law, which also establishes grants to offset any financial losses to the districts during the program’s first three years.
Attorneys for the plaintiffs balked at those arguments.
“The state’s position boils down to: They don’t think anybody has standing. They don’t think anybody has the ability to challenge what the General Assembly has done,” said Allison Bussell, associate law director of Metro Nashville, representing both counties.
While the program’s financial impact remains to be seen, Bussell said the two county governments — which help fund local schools — ultimately will bear a financial burden that other counties are shielded from under the law.
But Stephanie Bergmeyer, a lawyer for the state, countered that Tennessee lawmakers had their reasons for applying the law to families in the state’s two largest school systems, where more students and private schools were likely to participate.
“It (would yield) a good metric to see how the program will help these students with their educational opportunities in the first few years of the program,” Bergmeyer said.
Also at issue is the state’s speedy rollout of the program within weeks after July 13, when the court lifted its order blocking the launch. To accommodate the governor’s order to get the program up and running in time for the new school year, the education department opted to disburse state funds directly to participating private schools, rather than set up education savings accounts for individual students to deposit money in, as directed by the law.
“The ESA act does not permit direct reimbursement to private schools; it doesn’t even contemplate that concept,” Bussell said.
Chancellor Anne Martin, who is hearing the case with Judges Valerie Smith of Memphis and Tammy Harrington of Maryville, asked Bussell whether that difference ultimately matters.
“I think the General Assembly has told us what the potential injury is,” Bussell responded. “The reason they set it up this way is because they wanted to ... set up very specific processes for how to prevent fraud, to make sure that funds are spent effectively, to make sure this is being managed in an appropriate way.”
Martin said the panel will issue its rulings later.
But with the program already under way, rolling it back becomes harder. Students who’ve already received vouchers could have their school year disrupted. According to the education department, 81 approved student applicants had submitted proof of enrollment in a participating private school as of late Monday.
Chris Wood, a Nashville attorney representing parents and taxpayers in a second lawsuit opposing the law, said such disruptions aren’t the point.
“If it’s unconstitutional, it’s unconstitutional,” Wood told Chalkbeat after the hearing. “We tried very hard to get the state to hold off on any launch while the case is still being argued, but the state has insisted on pressing on.”
An attorney for the Arlington, Virginia-based Institute for Justice, one of several pro-voucher groups that have intervened in the case, said the “bigger disruption” is for families whose public schools are “failing to meet the needs of their students.”
“The ESA program is a godsend for them,” said Arif Panju, the institute’s senior attorney.
Research on the effectiveness of vouchers is mixed. Recent studies have found that switching to private education using a voucher tends not to help — and may even harm — students’ test scores, especially in math. Other studies, though, have found neutral or positive effects of vouchers on high school graduation and college attendance.
Tennessee is among more than 20 states that have either started or expanded voucher-type programs in the last two years.
West Virginia and Arizona have gone the furthest on school choice, creating options to provide so-called education or empowerment scholarships to most or all of their public school students. Both face hurdles, with a legal challenge blocking West Virginia’s program and an effort to put Arizona’s measure to voters.
Voucher laws are also being legally challenged in Kentucky, Ohio, and North Carolina.
“A lot of the claims come down to voucher programs violating duties and guarantees under the education clauses of their state constitutions,” said Jessica Levin, deputy litigation director at the Education Law Center, one of several anti-voucher groups involved in Tennessee’s case.
This story has been updated to include the number of approved ESA applicants who have submitted proof of private school enrollment to the state.
Marta W. Aldrich is a senior correspondent who covers the statehouse for Chalkbeat Tennessee. Contact her at firstname.lastname@example.org.