Update on Tennessee ESA Litigation

UPDATED (JUNE 4): On June 4, the Supreme Court of Tennessee denied requests for that court to accept jurisdiction of The Metropolitan Government of Nashville and Davidson County et. al. vs. Tennessee Department of Education et. al., No. M2020-00683-COA-R9-CV, the case against Tennessee’s new Education Savings Account Pilot Program (ESA Pilot), That case is currently before the Tennessee Court of Appeals, with briefing to begin in the next few weeks. On August 5, the Court of Appeals will hear oral arguments.

This means that even if the Court of Appeals rules in favor of parents who have intervened in the case in support of the program, the new voucher will not be available for parents who need it for their children this next school year. This will be a devastating blow to those parents whose children are desperately in need of educational options.

The Supreme Court of Tennessee also denied requests to review orders of the lower courts that refused to stay the lower courts’ adverse rulings pending the outcome of litigation. This means that the ESA Pilot cannot move forward, and no children can receive vouchers to attend the schools of their parents’ choice, until either the Court of Appeals or the Supreme Court of Tennessee rule the program constitutional later this year or potentially in 2021.

UPDATED (MAY 20): On May 19, the Tennessee Court of Appeals accepted The Metropolitan Government of Nashville and Davidson County et. al. vs. Tennessee Department of Education et. al. case on appeal. The court also denied the state’s request to stay the adverse ruling of the lower court pending the outcome of litigation. This means that the ESA Pilot Program cannot move forward and parents must consider alternative ways to provide an education for their children this fall, in case the Court of Appeals upholds the lower court ruling striking the program.

The Court of Appeals, in a two page ruling accepting the case, said:

The issues on appeal shall be limited to the following:

1) Whether the trial court erred in ruling that the ESA Program violates the Home Rule Amendment, Article XI, Section 9, of the Tennessee Constitution;

2) Whether the trial court erred in ruling that the county government plaintiffs have standing to challenge the constitutionality of the ESA Program under the Home Rule Amendment.

Briefing in the case will begin by the end of June, with oral arguments scheduled for August 5. A motion was also filed with the Tennessee Supreme Court, asking the court to take the case up directly, bypassing the Court of Appeals. That motion is pending.

UPDATED (MAY 8): On May 7, the Tennessee Chancery Court of Davidson County in Nashville denied the request of parents seeking to participate in the state’s new ESA Pilot program to stay her ruling blocking the program pending the outcome of a ruling by a higher appellate court.

Parents told the court that their children are being bullied on a regular basis in their public schools; are verbally and emotionally abused; are regressing academically in schools where 80 percent of students are below grade level; must fight to be able to keep their food at lunch; are learning to curse to survive; and suffer in overcrowded, unsafe schools where their children regularly encounter violence. Their children are failing to thrive.

Parents told the court these things and informed the court that they were able to find schools where their children would have a chance to learn in safe, caring environments. They cannot afford these schools without funding from the ESA Pilot program. For the first time, they had hope that their children could be saved.

The parents’ concerns were summarily dismissed by opposing counsel (representing the Metropolitan Government of Nashville and Davidson County and Metropolitan Nashville Board of Education), who questioned why the parents didn’t do something else to help their children. Opposing counsel said without hesitation that these children are not trapped in failing schools and that the only harm will come if parents decide “not to try to do something else to improve their children’s situation”. The parents’ sworn testimony about their children’s situation was wholly disregarded by counsel representing Shelby and Davidson Counties (Memphis and Nashville).

And that’s the problem.

People who are well educated will never know what it’s like to be without education—or to watch their children grow up without receiving an education, instead being emotionally wounded by bullying and treated as if their lives do not matter because they’re kids who allegedly can’t learn.

Those opposing these Tennessee parents are dead wrong.

This case will be appealed by the state, with the Institute for Justice, Liberty Justice and the Beacon Center representing intervenor parents. The EdChoice Legal Defense & Education Center (LDEC) will file an amicus brief to lay bare the false conclusions levied against parents today. Let’s hope the appellate courts in Tennessee will act swiftly to hear this case and grant these parents and their children the justice they deserve.

PREVIOUSLY (MAY 4): On May 4, a Tennessee court ruled the state’s new Education Savings Account Pilot Program (ESA Pilot) unconstitutional based on a provision in the Tennessee constitution that prohibits laws from applying only to “a particular county”. The ESA Pilot law would only have applied to two counties, Shelby County (Memphis) and Davidson County (Nashville); these two areas are home to chronically under-performing school districts.

As a result of this decision, thousands of Tennessee families may have lost their chance to provide a quality education for their children at a school of their choice. We expect this ruling to be appealed.

The Chancery Court for Davidson County, Twentieth Judicial District in Nashville, ruled in The Metropolitan Government of Nashville and Davidson County et. al. vs. Tennessee Department of Education et. al., Case No. 20-0143-II, that Tennessee’s new voucher, called the Tennessee Education Savings Account Pilot Program, is unconstitutional because, “it is local in form and effect, not of general application but rather applicable and designed to be applicable to two particular counties…” The court considered that the “particular county” language in the constitution could also apply when a law applies to more than one particular county. The court also ruled that the school board of Metropolitan Nashville has no standing to sue; only the counties of Shelby and Davidson are proper litigants in this case.

This ruling will harm parents like Natu Bah, whose sons attend school in Memphis where 80 percent of the students are below grade level. Natu’s children would have been eligible to participate in the ESA program.

Halting this program means Natu’s sons will continue to suffer harm—harm that could be lifted by allowing this ESA to move forward right now. Each academic year a child fails to thrive and learn exponentially multiplies the harm to a child’s growth.

As stated by the Institute for Justice in Natu’s defense, Shelby and Davidson counties assert that educational protections in Tennessee’s constitution, “belong to school districts, rather than to the parents and children those school districts exist to serve. As a result, their claim asks this Court to apply the Tennessee Constitution in a manner that treats children as mere conduits for the flow of money into Tennessee’s public school system.”

It goes without saying that we disagree with the ruling in this case, but we cannot stop there. We believe children in all counties of Tennessee should have the opportunity to attend a school where they can thrive. This program—and school choice programs across the nation—should be accessible to all families.

Public school systems in Shelby and Davidson counties may claim victory in the ESA case today, but that victory comes at the expense of the children in Memphis and Nashville who deserve the right to access educational opportunities that fit their needs.

Educational choice should be every parent’s choice. This is a hard lesson for state policymakers in Tennessee today, but we will continue to support parents’ fight for educational freedom and the right to choose how and where their children will be educated.