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Supreme Court Finds Lee’s School Voucher Program Doesn’t Violate House Rules Protections

Governor Bill Lee speaks in the Old Supreme Court Chamber of the State Capitol in Nashville on March 22, 2021. (Erik Schelzig, Tennessee Journal)

Three years after lawmakers narrowly passed Governor Bill Lee’s school voucher program, the state Supreme Court overturned lower court findings that it violated Bylaw protections against county laws individual by applying only to Nashville and Shelby County.

The 3-2 decision published on Thursday came after the High Court decided to rehear arguments following the death last year of Judge Connie Clark. Court of Appeals Judge Skip Frierson sat on the case and sided with Chief Justice Roger Page and Judge Jeff Bivins. Justices Sharon Lee and Holly Kirby dissented.

UPDATE: When the voucher bill was passed, it was tied to the transfer of calculated dollars through the basic education program to cover private school tuition. Lawmakers this year approved an overhaul of the school funding formula called Tennessee Investment in Student Achievement, which funds individual students rather than districts as a whole. The Lee administration included a provision in the law to change the mechanism for funding the voucher program from the old formula to the new:

SECTION 53. Tennessee Code Annotated Section 49-6-2603 is amended by deleting the term “Basic Education Program” wherever it appears and replacing it with “Tennessee’s Investment in the Success Formula.” students (TISA)”.

Here is the press release from the Administrative Office of the Courts:

In an opinion released today, the Tennessee Supreme Court determined that, although two county governments in Tennessee have standing to challenge the Education Savings Account Pilot Program (the “ESA Law”), Law No. is not rendered unconstitutional by the Home Rule Amendment, Section XI, Section 9, of the Tennessee Constitution.

In 2019, the Tennessee General Assembly signed into law the ESA Act. The law establishes a program whereby a limited number of eligible students directly receive their share of state and local education funds, which would normally be provided to the public school system they attend, to pay for an education in a private school. and associated expenses.

The Metropolitan Government of Nashville and Davidson County, the Shelby County Government, and the Metropolitan Nashville Board of Public Education filed a lawsuit for declaratory judgment which named as defendants Governor Bill Lee, Commissioner of the Department of Education of Tennessee and the Tennessee Department of Education. The trial court also allowed other parties to intervene and participate as defendants. The complaint alleged that the ESA Act violated several provisions of the Tennessee Constitution, including the Home Rule Amendment, the Equal Protection Clauses, and the Education Clause.

The defendants filed separate motions challenging the plaintiffs’ ability to pursue the asserted claims and the legal sufficiency of those claims. The plaintiffs, in turn, filed a motion for summary judgment regarding their claim to change the Home Rule. The trial court determined that the two county plaintiffs had standing to pursue the claims, but dismissed the Metro School Board as a plaintiff for lack of standing. The trial court also granted the motion for summary judgment finding that the ESA Act violates the Home Rule Amendment and barred the state from implementing the law. The trial court reserved its decision on the defendants’ challenges to the claims of the equal protection and education clause.

The trial court granted the defendants an interlocutory appeal and the Court of Appeal granted the defendants’ appeals. The intermediate appeals court upheld the trial court, finding that Metro and Shelby County had standing to challenge the ESA Act under the Home Rule Amendment and that the law was unconstitutional under the autonomy amendment.

The Tennessee Supreme Court granted the defendants the leave to appeal applications. Since this is an interlocutory appeal, the issues before the Court were limited to the constitutionality of the ESA Act under the Home Rule Amendment and the ability of the plaintiffs to bring this challenge. The Supreme Court agreed with the trial court and the Court of Appeals that plaintiffs Metro and Shelby County had standing to file their Home Rule amendment petition. However, the Supreme Court, after reviewing the applicable constitutional language, held that the ESA Act was not rendered unconstitutional by the Home Rule Amendment because the Act is not “applicable” to the plaintiff’s counties for the purposes of the amendment. The majority concluded that the ESA Act is not applicable to the plaintiff’s counties because the statute regulates or governs the conduct of local education agencies and not the counties. Thus, the law does not violate the Home Rule Amendment. The Supreme Court therefore affirmed, in part, and reversed, in part, the judgment of the Court of Appeal and sent the case back to the trial court for the dismissal of the Home Rule amendment application and for consideration of the applicants’ remaining applications.

Judge Sharon G. Lee and Judge Holly Kirby joined in a separate, partly concurring and partly dissenting opinion. They agreed with the Court that Metro and Shelby County had standing to challenge the ESA Act, but found the law violated the Home Rule Amendment. In their view, the ESA Act significantly affects the ability of Metro and Shelby County to self-govern and decide on school funding issues. Under ESA law, only Metro and Shelby counties and no other counties in the state have to pay for students who drop out of public schools and use their private school tuition vouchers. Because the ESA Act has local effect and application, and because the law gives Metro and Shelby County no choice in the matter, it violates the Home Rule Amendment.

To read the majority opinion in Metropolitan Government of Nashville and Davidson County, et al. v. Tennessee Department of Education, et al.written by Chief Justice Roger A. Page, and the separate opinion written by Judge Sharon G. Lee, visit the Opinions section of

Teresa R. Cabrera

The author Teresa R. Cabrera