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Tennessee High Court Hears Bid to Reinstate School Voucher Program

At issue is an amendment to the Tennessee Constitution intended to limit the power of the Legislature.

(CN) — Three attorneys representing private schools, parents of school children and the state of Tennessee sought to convince the state’s top court Thursday the two most urban counties in the state cannot invoke so-called home rule to invalidate a school funding pilot program created by the Legislature in 2019.

Held over Zoom due to the pandemic and livestreamed to YouTube, the case pits a highlight of Republican Governor Bill Lee’s legislative agenda to provide state funding for some students wishing to attend private schools against Davidson and Shelby counties, who argued the law unconstitutionally targeted their school districts.

“At its core, this case is about enhancing educational opportunity for low-income children in Tennessee's lowest performing schools,” said Andrée Blumstein, the state’s solicitor general, who argued to reinstate the program blocked by a Davidson County judge.

The Tennessee Education Savings Account Pilot Program was intended to go into effect in the 2020-2021 school year at the districts in the counties home to Memphis and Nashville. Independent schools began planning expansions and the state collected applications before Davidson County Chancellor Anne Martin ruled last year that the program was unconstitutional and enjoined the state from launching it.

The Tennessee Court of Appeals agreed last September, writing in a 12-page opinion that the legislation ran afoul of home rule amendment to the state’s constitution because it was written only to apply to Davidson and Shelby counties.

The home rule amendment, created during the state’s 1953 constitutional convention, said a piece of legislation that singled out a Tennessee county in its governmental capacity needs approval from that county to take effect.

Arif Panju, an attorney with the Institute for Justice who represents two parents who intervened in the case to support the pilot program, told the justices the appeals court relied too much on the fiscal effects that the counties would experience, and argued upholding that court’s decision would lead to an expansion of the approval requirement.

“Appellants' entire case … hinges on persuading this court to treat the term applicable in a governmental capacity as requiring nothing other than showing that there's mere effects on a county and that has no root or foundation in the text” of the home rule amendment, Panju said.

Early into his arguments, Robert Cooper, Jr., director of law for the Metropolitan Government of Nashville and Davidson County, launched into what he said was the basics of state education law: The state is obligated to offer a student enrollment in a public, not private, school. The state and county share the costs of that public-school education. And – a key point for Cooper – the public-school funding is based on the number of students in public school.

Allowing some students to use funds from Tennessee's Basic Education Program to enroll at private schools “takes this general law and throws it out the window for these two counties," Cooper argued.

While Cooper said the two counties will break even, the law shifts the financial burden of funding a public education to them. And in a “deviation from general state law,” he said, the program mandates that students who utilize it must be counted as if they were enrolled in the local public school.

“This ESA act is like the Hotel California. Students check out of the school district but financially they never leave,” Cooper said, referencing The Eagles' 1977 hit "Hotel California."

Quoting from the constitutional convention that created the home rule amendment, Cooper concluded the amendment was needed to reign in the state’s Legislature, which could not be trusted to limit its own power.

The three attorneys arguing for the pilot program shared the 30 minutes allocated to them. Cooper argued his 30 minutes alone.

In the two minutes Panju reserved at the end for rebuttal, he said the idea fiscal effects can apply to the home rule amendment could wind up meaning just about anything as there’s no limiting principle to it.

In her rebuttal, Blumstein said the case’s record has little to say on how much the pilot may cost the counties and dollar amounts cited by the county were based on speculation.  

After the clock on the screen ran down to zero for the last time, Chief Justice Jeffrey Bivins thanked the attorneys for their arguments “on a very difficult and a very important case.” It is unclear when the court will rule.

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