Tennessee's school voucher program wins court challenge

Tennessee's contentious school voucher program in Nashville and Memphis can go ahead without court intervention, a three-judge panel ruled Wednesday.

The program, which allows families in Nashville and Shelby County schools to use public funds for private school costs and tuition, has been in legal limbo since it squeaked past the legislature in 2019.

It was the highest profile case heard before the nascent three-judge "super chancery" court created last year by the legislature to remove challenges to state law from Nashville's bench.

"This controversy is merely a disagreement of public policy and inappropriate for judicial decision," the majority wrote on Wednesday.

The panel's chief judge, Davidson County Chancellor Anne Martin dissented in part from her colleagues, Judges Tammy M. Harrington and Valerie L. Smith.

Program blocked for two years until this summer

This summer, the panel allowed the program to go ahead in this school year after a previous stay on the initiative was lifted by the Tennessee Supreme Court.

In Friday's ruling, the majority found the school district's arguments that they would be harmed by removing public funds from their budgets unproven, especially since the three-year pilot program is intended to be funded by the state, not local school districts.

Only after an actual budget shortfall would the counties have legal recourse in the courts.

Contentious from the start

The state argues the program is intended to give students in low-performing schools a chance to attend private schools in the hope of a better education.

But the counties say taking money away from underperforming school districts helps no one. A crux of their argument is also that other districts that have performed worse than those in Nashville and Memphis aren't part of the program, arguing a possible equal protection violation.

"We are unpersuaded," the majority wrote. "As County Plaintiffs themselves state, their money 'is the heart and soul of the ESA Act' and, thus, this dispute. Any disparate treatment between County Plaintiffs and the other counties of this state must come down to a disparate treatment in funding.

"But the loss of money has already been remedied by the ESA Act itself."

Attorneys for certain defendants included former state Sen. Brian Kelsey, R-Germantown, who voted for the law in the General Assembly and on Tuesday pleaded guilty to two federal corruption charges in what prosecutors have described as a campaign finance conspiracy to benefit his failed bid for a U.S. congressional seat.

Dissent: Shortfall is real, even with funding

Martin, dissenting, would have allowed the equal protection claim to continue, she wrote.

The counties claim even if the funding for the pilot years is approved annually, it falls short of what they need to operate their districts under state law and other regulations.

Although the majority held that the alleged lack of funding, and subsequent harm, was at this point hypothetical, Martin found enough basis in the counties' arguments to support the case continuing.

The reported problem "is created by a statute that is in effect at this time, not in three or more years," she wrote.

Supporters celebrate

Tennessee's attorney general celebrated the win in a post on social media.

"The Court's decision secures access to additional educational opportunities for thousands of children in Shelby and Davidson counties," Attorney General Jonathan Skrmetti's office wrote.

The Institute for Justice says it is the nation’s leading advocate for school choice and was joined by the Beacon Center of Tennessee in intervening in the case.

“Parents in Tennessee, like parents across the nation, are embracing educational choice programs because choice empowers parents," IJ Managing Attorney Arif Panju, lead counsel for the parent intervenors, said in an emailed statement.

Reach reporter Mariah Timms at mtimms@tennessean.com or 615-259-8344 and on Twitter @MariahTimms.

This article originally appeared on Nashville Tennessean: Tennessee's school voucher program wins court challenge