Tennessee’s Education Savings Account (ESA) plan, often portrayed as a voucher program, won another legal challenge filed by opponents of the controversial legislation that targets Memphis and Nashville schools. A three-judge panel appointed by the Tennessee Supreme Court and made up of Chancellor Anne Martin, Judge Tammy Harrington, and Judge Valerie Smith, has ruled that the parties challenging the legislation have no legal standing. As a result, all challenges are dismissed.
This action, at least temporarily, removes all legal hurdles facing the 2019 Education Savings Account law. The law provides money for families to offset private school tuition, should they choose to pursue that option due to inadequate traditional school options.
Plaintiffs, which included Metropolitan Nashville and Shelby County governments, along with a group of parents who oppose vouchers, put forth the argument that districts face financial injury when families withdraw from the public option and go private. The panel rejected the argument, citing a provision in the legislation that serves to replace any lost revenue for the first three years through a state-created community grant. The grant is subject to annual appropriation by the legislation but is designed to offset any final loss by affected districts in the first three years of the ESA program.
The judges stated in their analysis that when presented with a question of the constitutionality of a statute, the court must “begin with the presumption that an act of the General Assembly is constitutional.” Cases do not stand or fall based solely on merit, the court must also determine whether a plaintiff has “standing” in the case.
Per the ruling, to establish “standing,” plaintiffs must demonstrate a distinct and palpable injury, a common connection between the injury, and the challenged conduct, and the injury must be capable of being released by a favorable decision of the court. Previously the court recognized plaintiffs had established standing when contesting the ESA Act under the Home Rule Amendment, however, since this was a separate challenge, the Court was required to conduct a new analysis.
The premise central to the filed complaint was that potential financial hardship is forced on Nashville and Memphis school districts when students enroll in the ESA program, thus diverting money they would have received into the hands of private entities. It was further argued that Tennessee school districts that are not required to participate in the ESA Act have an unfair advantage by not being subject to the same financial burden as those participating. The state’s existing funding formula requires those non-participating districts to maintain local funding as if students who left for private schools had not left.
While the judges did not deny the possibility of future revenue loss, they ruled that the grant provision makes the argument “speculative.” By bringing this before the court at this juncture, the defendants were viewed as prematurely seeking relief, providing the court with grounds for dismissal.
The panel ruling was received as welcome news by supporters of Governor Lee’s signature legislation. John Patton, Tennessee state director of the American Federation of Children told The Tennessee Star:
We are thrilled that the court has dispensed with one of the final legal barriers to the ESA program. After a more than 2-year court battle that prevented lower income families from accessing ESA program dollars to find the best education for their child, these families in Nashville and Memphis can now apply and enroll without fear of the rug being pulled out from under them. More than 300 children have already taken advantage of the program and we anticipate growth in the program in January and into next fall.
The panel ruling erases current legal challenges, but does not ensure that legal proceedings are over. As reported by ChalkbeatTN:
We are disappointed by the court’s order and disagree with its conclusions,” said Chris Wood, a Nashville attorney representing parents and taxpayers in a second lawsuit opposing the law. “We are reviewing our options, which include appealing the court’s decision.
With legal challenges mostly resolved, concerns now turn to implication and logistical questions. Prior to passage, there were concerns as to whether or not Shelby and Davidson Counties have enough quality private school option to meet potential demand. In an email with The Tennessee Star, JC Bowman, executive director of Professional Educators of Tennessee reiterated those concerns:
“We know that there are also likely to be capacity issues and tuition challenges with some private schools, as well as not enough certified teachers. Clearly there will be an issue in Memphis and Nashville to find affordable private schools that also provide much needed transportation for low-income parents.”
Legislation sets a cap of 5,000 students who may use an ESA in the initial year, increasing by 2,500 each subsequent year to a maximum cap of 15,000. That is a statewide cap with no minimum or maximum set for individual districts.
There have all been concerns voiced if the value of an ESA is sufficient enough in allowing families to afford private tuition. The average private school tuition in Tennessee is $10,611 per year (2022-23). Though that number is higher than current ESA values, many private schools offer financial aid packages based upon need that could serve to bridge the gap.
Students eligible for an ESA will receive their proportionate “share” of their district’s state and local funding. Existing state law caps ESA values at the state average of per-pupil funding based on the BEP. Metro Nashville and Shelby County both generate higher amounts of per-pupil funding in comparison to other Tennessee districts, $7923 and $8324 respectively. This year students eligible to participate will receive the lower figure of $7572 each, reflective of the state average.
This years’ figures are generated by a student funding formula (BEP) that has recently been replaced. Starting in the 2023-24 school year per-pupil funding will be calculated per the Tennessee Investing in Student Achievement Act (TISA). Under the new formula, students will be funded at a rate of $6860 per student with additional amounts added through a system of weights.
The TISA includes weights for students who are economically disadvantaged (25 percent), attend a Title I eligible school (5 percent), attend a sparse district (5 percent), attend a small district (5 percent), and have unique learning needs (between 15 percent- 150 percent). Students with ULN include those receiving special services, English learners, and students with characteristics of dyslexia.
It is unknown how the new TISA formula will impact ESA rates. There are concerns that the value of an ESA could grow exponentially. Based on new calculations required by TISA, per-pupil funding could jump as high as $16,000, a significant increase over the current value.
Despite legal questions being resolved, hurdles remain that must be overcome by the state’s voucher program as it heads toward full implementation. The focus now shifts from the court room to the classroom.
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TC Weber is a reporter at The Tennessee Star and The Star News Network. He also writes the blog Dad Gone Wild. Follow TC on Twitter. Email tips to [email protected]. He’s the proud parent of two public school children and the spouse of a public school teacher.
Photo “Bill Lee” by Gov. Bill Lee. Background Photo “Courtroom” by 12019.
