Metropolitan Government of Nashville and Davidson County et al. v. Tennessee Department of Education

Litigation: On February 6, 2020, the Metropolitan Government of Nashville and Davidson County, the Metropolitan Nashville Board of Public Education, and the Shelby County Government filed litigation against the Tennessee Dept of Education challenging the Education Savings Account Pilot Program, enacted in May of 2019. Nashville and Memphis alleged that the program violated the state constitutional Home Rule provision prohibiting the targeting of a county for legislation; the ESA Pilot is limited to Davidson and Shelby counties. The Metropolitan Govt of Nashville and Davidson County, et.al. v. Tennessee Dept of Education, Chancery Court of Davidson County, Case No. 20-0143-II.

Outcomes: The Chancery Court for the Twentieth Judicial District in Davidson County heard arguments for this lawsuit and Roxanne McEwen v. Gov Bill Lee (see below), then on May 4, 2020, ruled that the law violated the Home Rule provision. The judge held all other issues, including the McEwen case, pending decision by a higher court regarding the Home Rule issue. On September 29, 2020, the Tennessee Court of Appeals upheld the ruling of the lower court. The Metropolitan Govt of Nashville and Davidson County, et.al. v. Tennessee Dept of Education, Court of Appeals of Tennessee at Nashville, Case No. M2020-00683-COA-R9-CV. The Tennessee Supreme Court accepted the case on February 4, 2021 and heard oral arguments on June 3, 2021. Tennessee Supreme Court Justice Cornelia Clark died in September 2021 before a final ruling in this case. Three judicial candidates were selected by the Governor’s Council for Judicial Appointments on December 9, 2021 and were referred to the Governor. Gov Lee appointed a new justice, who then recused herself, necessitating appointment of another judge to participate in this case. A second round of oral arguments was heard by the court, including the substitute justice, on February 24, 2022. Decision pending.

Why it Matters: If the Tennessee Supreme Court rules that the law violates the Home Rule provision, the legislature could cure this problem by extending the ESA Pilot to children in every county in Tennessee. If the Court rules there is no Home Rule violation, then it is likely that issues raised in the McEwen case (see below) will be heard, beginning again at the Chancery Court.

Effects: Tennessee’s Individualized Education Account Program for children with special needs was enacted in 2015 and launched in 2017; since that time, the program has grown from 47 to 307 participating students. The popularity of this program, plus the academic needs of children in Nashville and Memphis, where there has been little academic success, illustrate that there is demand for educational choices in Tennessee. Prolonged delays in working through the litigation process mean that too many children have been left behind.

Amicus Brief Amicus Brief