A Tennessee judge ruled the state’s first education savings account program unconstitutional Monday, stating that by targeting two counties, the scholarship program violates the “home rule” amendment in the state constitution.

Davidson County chancellor Anne C. Martin heard oral argument in late April on the Tennessee Education Savings Account Pilot Program, approved last year by a narrow 50-48 vote. The program, scheduled to begin in the 2020-21 school year, would provide low-income students with education scholarships accounts worth $7,300 and would be limited to 5,000 students from low-income and working-class homes who are eligible to attend Shelby and Davidson County public schools.

Opponents of the scholarship program, which included a cardiac surgeon and a neuroscientist whose child was not eligible for the program, filed suit in February of this year. These parents and others were represented by the American Civil Liberties Union, Southern Poverty Law Center and the teacher union backed Education Law Center.

Officials from both Nashville and Memphis also had filed lawsuits against the state.

“Nashville, like other cities and counties, must have the authority to determine how investments are made in the best interest of our residents,” Nashville Mayor John Cooper said in a statement following the ruling.

The state plans to appeal the decision.

“The parents defending the ESA Pilot Program will immediately appeal the court’s ruling,” said Arif Panju, managing attorney at the Institute for Justice in a press release.

The institute represents two low-income parents who are eligible for the scholarship and argues that the judges expanded the home rule amendment beyond what the framers intended in order to strike down the scholarship program.

But Martin pointed to several cases, including Weaver v. Ayers (1988) and  Board of Education of Shelby County, Tenn. v. Memphis City Bd. of Education (2012), both of which note that county governments and school districts are in a “partnership” and a “collaboration” with each other to provide education. Martin reasoned the “partnership” between county and school district means they are inseparable and that a state law impacting a public school district also impacts the county or city in violation of the home rule amendment.

“The court had to significantly expand the Tennessee Constitution’s Home Rule provision and apply it to a law that, on its face, required a county to do nothing — not exercise its power nor fund anything. That ignores the text of the Constitution,” declared Panju.

Indeed, Tennessee’s own home rule amendment is limited specifically to municipalities and counties.

A state Supreme Court case from 1957, Fountain City Sanitary District v. Knox County Election Commission, noted that even though a sanitation district was fully within the boundary of the city or county, it was wasn’t covered under the home rule amendment precisely because it was not a city or a county.

The 1957 court clarified its argument further by pointing to similar rulings from California and Idaho, which similarly found other quasi-governmental organizations, like sanitation, utilities, and even school districts, were not cities or counties and thus not covered by “home rule” provisions.

In a concurring opinion, Tennessee Supreme Court Justice Swepston specifically noted that drainage districts, water districts, sanitary districts, and even school districts were “simply not included within the intention of the framers of the Home Rule Amendment.”

The scholarship program has been put on hold for the more than 500 students who expected scholarships this fall.

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