Tennessee seeks permission to continue voucher program

Friday, May 1, 2020, Vol. 44, No. 18

NASHVILLE (AP) — Tennessee is seeking permission to continue implementing a new school voucher program just days after a judge deemed the law unconstitutional and unenforceable.

The request comes after Gov. Bill Lee raised eyebrows when he announced Tuesday that the state would continue to encourage parents to apply for the vouchers — also known as education savings accounts — despite the judge's order declaring the program "unconstitutional, unlawful and unenforceable."

Critics quickly questioned the legality of the state accepting applications. Several hours later, Attorney General Herbert Slatery's office quietly submitted a request asking for the judge to lift the injunction while the lawsuit moved through the court system.

"All defendants now request that this court suspend the injunction through the pendency of appeal," the state's motion reads.

In response, Davidson County Chancellor Anne C. Martin — who handed down the original order earlier this week — scheduled a Thursday hearing to review the request.

"Participating students and parents who have begun the application process for participation in the ESA Program are now facing the prospect of returning to underperforming schools," Slatery's office wrote. "Schools who have made hiring decisions in anticipation of enrollment of children via the ESA Program may find it necessary to terminate those teachers."

Martin had ruled that the voucher law violated the Tennessee constitution's "home rule," which says the Legislature can't pass measures singling out individual counties without local support.

According to the law, the voucher program would only apply to Nashville and Shelby County, which includes Memphis, the areas with the lowest performing schools and regions with Democratic political strongholds.

The original version of the measure included several other regions, but it was eventually whittled down after Republican lawmakers objected because of uneasiness about launching a voucher program in their own legislative district.

According to the law, the program would allow eligible Tennessee families to use more than $7,000 in public tax dollars on private school tuition and other preapproved expenses.

Two separate lawsuits have been filed challenging various components of the program. Plaintiffs include Nashville and Shelby County officials, as well as opposing parents represented by the American Civil Liberties Union, the Southern Poverty Law Center and the Education Law Center.

Defendants who have intervened in the lawsuits include voucher advocates, such as the Liberty Justice Center, the Institute for Justice and the Beacon Center of Tennessee — who also are representing parents in favor of the ESA program.

All parties involved in the legal battle have acknowledged the importance of resolving the issue quickly as parents are already making plans for the upcoming school year.

The Department of Education — under the urging of Lee's administration — has been working to launch the voucher program for the 2020-21 school year. The voucher application deadline is set to expire Thursday.