Institute of Justice client Builguissa Diallo plans to use education savings account funds to send her kindergartener to Pleasant View School in Memphis, saying her zoned public school doesn’t meet her daughter’s needs.

Editor’s note: Some of the parties mentioned in this post, such as the Southern Poverty Law Center, have expressed interest in suing to stop the Family Empowerment Scholarship, a program administered by Step Up For Students, which hosts this blog.

The legal battle over Tennessee’s new education savings account (ESA) program is causing families and educators alike to choose sides.

On one side are nine parents, a legal guardian and a retired public school principal represented by the American Civil Liberties Union, Southern Poverty Law Center and Education Law Center, who argue the new program is unconstitutional on a plethora of grounds. On the other side, two parents represented by the Institute for Justice are arguing the program is constitutional and beneficial to their children.

The cities of Memphis and Nashville filed similar suits earlier in February.

The program in question, the Tennessee Education Savings Accounts Pilot Program, offers scholarships to low-income and working-class students to attend private schools. Qualified students must live in households not earning more than two times the threshold for the free or reduced-priced lunch program ($66,950 for a family of four) and be assigned to low-performing public schools in districts with at least 10 such struggling schools. Scholarships are worth up to $7,300 and can be spent on tuition, fees, textbooks, tutoring and more.

“Public schools are open to all children, while private schools receiving voucher funds are not held to the same standards,” Nashville mother Terry Jo Bichell said in a press release. Bichell, whose son is non-verbal and has special needs but is ineligible for the scholarship, is suing the state to stop the program.

Natu Bah, who has two sons who are eligible for the program, said in the Institute of Justice’s press release: “I’m defending the ESA program because it will help me provide a better education for my sons.” Bah plans to use the scholarship to send the boys to Christian Brothers High School in Memphis.

The case is another in a long line of voucher lawsuits that focus on state constitution matters to avoid entanglement with the U.S. Constitution in situations where voucher opponents have been thwarted. Though the “Blaine Amendment” issue currently is being debated before the U.S. Supreme Court, Tennessee does not have a prohibition on funding private religious schools. Opponents must argue other state-specific reasons in their efforts to show the scholarship is unconstitutional.

State centric strategies attacking various school choice programs have reaped mixed success. Florida’s first such program was overturned in a controversial and widely panned decision that found the program unconstitutional due to a state amendment intended to increase public school spending. Nevada’s Supreme Court found the ESA program constitutional, but then declared the funding mechanism to be unconstitutional. Washington’s Supreme Court ruled charter schools unconstitutional after digging up a century-old case on “common schools,” an archaic term referring to elementary schools in the 19th century.

In each case, school choice opponents tossed the proverbial kitchen sink at the program hoping at least one argument would stick with court justices. Tennessee’s case appears no different, with opponents highlighting five different reasons the ESA might be unconstitutional.

The ACLU argues the ESA program:

·       Violates the state’s “home rule” provision in the state constitution by targeting Shelby and Davidson counties without local approval

·       Violates the “appropriation of public money” provision since the Legislature did not appropriate money to the program when it passed in 2019 (the program won’t enroll students until the 2020-21 school year)

·       Violates “equal protection clauses” of the state constitution by diverting funds from public to private schools

·       Violates the Basic Education Program (BEP) statute by diverting dollars intended only for public school districts

·       Diverts money to private schools that are not required to adhere to the same standards as public schools

But the kitchen sink approach may not stick in Tennessee.

A 1957 case, Fountain City Sanitary District v. Knox County Election Commission, spells out that the state’s “home rule” provision protects “cities and counties,” and that the rule excludes public school districts. BEP is Tennessee’s funding formula for K-12 education, but nothing within the law appears to restrict expenditures to solely public-school districts. In fact, charter schools are funded through this same formula.

Tennessee’s former Attorney General (and Democrat) Robert Cooper even argued that voucher programs pass constitutional muster in part because of the “Supreme Court’s recognition of the General Assembly’s constitutional flexibility in the field of education.”

There is no telling how long Tennessee’s school choice civil war will last in court, but the first hearing is scheduled for later this month.

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