Media Contacts:
Ashley Levett, SPLC, ashley.levett@splcenter.org / 334-296-0084
Sharon Krengel, ELC, skrengel@edlawcenter.org / 973-624-1815, x24
Lindsay Kee, ACLU-TN, communications@aclu-tn.org / 615-320-7142
Christopher Wood, Robbins Geller, cwood@rgrdlaw.com / 615- 244-2203
Judge Strikes Down Tennessee School Voucher Law
NASHVILLE, Tenn. – Public school children in Tennessee won today when Davidson County Chancellor Anne C. Martin struck down the state’s private school voucher law, known as the Education Savings Account (ESA) Pilot Program. Because the law applies only to students in Davidson and Shelby counties, Chancellor Martin ruled that it violates the Home Rule provision of the Tennessee Constitution, which prohibits the General Assembly from passing laws that target specific counties without local approval.
The rulings are a milestone victory for the plaintiffs challenging the voucher law in two separate cases: public school parents and community members in Nashville and Memphis, who sued in McEwen v. Lee, and Davidson and Shelby County governments, in Metropolitan Government of Nashville v. Tennessee Department of Education.
The voucher law was enacted in May 2019 over the strong objections of legislators from both counties. The voucher program was originally intended to begin in the 2021-2022 school year, but Governor Lee accelerated the timeline with plans to issue vouchers starting this fall.
In March, the plaintiffs in McEwen v. Lee filed a lawsuit to challenge the voucher law in Davidson County Chancery Court. The lawsuit argues that the voucher law violates several provisions of the Tennessee Constitution, including the Home Rule provision as well as the Education and Equal Protection provisions and the Appropriation of Public Moneys provision.
When the state began accepting applications for vouchers to be used in fall 2020, the McEwen plaintiffs immediately moved for an injunction to temporarily block the law until the court had the opportunity to rule on its constitutionality.
Davidson and Shelby counties filed a motion for summary judgment in their separate lawsuit challenging the voucher law.
Both cases are before Chancellor Martin in Davidson County Chancery Court. Oral argument on the summary judgment motion was originally scheduled to be heard in late May. However, the McEwen plaintiffs requested that Chancellor Martin hear argument before the state began giving out vouchers for this fall. Accordingly, Chancellor Martin accelerated the schedule for oral argument on all motions in both cases, setting them for late April, and the McEwen plaintiffs secured the state’s agreement that it would not notify voucher applicants until after she issued her decision on the motions.
Chancellor Martin’s decision today, granting the counties’ summary judgment motion, now permanently enjoins the state from implementing the unconstitutional voucher program.
The McEwen plaintiffs are represented by Education Law Center and the Southern Poverty Law Center, which collaborate on the Public Funds Public Schools (PFPS) campaign to ensure public education funds are used exclusively to maintain, support and strengthen public schools. The plaintiffs are also represented by the American Civil Liberties Union of Tennessee and represented pro bono by the law firm Robbins Geller Rudman & Dowd LLP.
Plaintiff Roxanne McEwen, a public school parent in Nashville, said “I am grateful to Chancellor Martin for safeguarding the resources in Metro Nashville Public Schools and Shelby County Schools, and the rights of all public school children in these districts. Our public schools serve every child who walks through their doors. Especially in this time of crisis, our schools could not afford to have more resources drained away from them.”
“Chancellor Martin’s ruling is an enormous victory for Tennessee public school students,” said Chris Wood, a partner at Robbins Geller who argued for the McEwen plaintiffs last week. “This unpopular voucher program was forced on two communities without their consent, and it threatened to drain public resources from already underfunded public schools. Today, the voices of public school parents and community members were heard. The state needs to adequately fund our existing public schools, which educate the vast majority of students in Tennessee, instead of trying to send our taxpayer dollars to unaccountable private schools.”
# # #
The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi, and Washington, D.C., is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, visit http://www.splcenter.org/.
Founded in 1973, Education Law Center is a national leader in advancing the rights of public school students to equal educational opportunity under state and federal law through litigation, policy, advocacy and research. For more information, visit http://www.edlawcenter.org/.
The ACLU of Tennessee, the state affiliate of the national American Civil Liberties Union, is a private, non-profit, non-partisan public interest organization dedicated to defending and advancing civil liberties and civil rights through advocacy, coalition-building, litigation, legislative lobbying, community mobilization and public education. For more information, visit http://www.aclu-tn.org/.
Robbins Geller Rudman & Dowd LLP is one of the world’s leading complex litigation firms representing plaintiffs in securities fraud, antitrust, corporate mergers and acquisitions, consumer and insurance fraud, multi-district litigation, and whistleblower protection cases. With 200 lawyers in 9 offices, Robbins Geller has obtained many of the largest securities, antitrust, and consumer class action recoveries in history, recovering tens of billions of dollars for victims of fraud and corporate wrongdoing. Robbins Geller attorneys are consistently recognized by courts, professional organizations and the media as leading lawyers in their fields of practice. Visit http://www.rgrdlaw.com/.
Diane Ravitch's blog 
Wonderful. This is what justice looks like. I teach in Nashville and we are woefully underfunded. I could not believe our governor Lee would give money to vouchers when public schools were hurting. Then I remembered that he is a Trump lackey with his lips firmly planted.
Thanks, Susan. A good night.
“Especially in this time of crisis, our schools could not afford to have more resources drained away from them.”
Exactly
Vouchers raise a whole host of questions no one in ed reform bothered to ask.
Here’s mine- the Catholic school here regularly expels students for behavior problems. They have fewer behavior problems because they expel those students and send them back to the public school. I’m okay with this- I understand that public schools have legal duties to the community that private schools do not have.
But, now that they’re publicly funded can they do that? Don’t all students have a right to attend those schools with identical access to that of public schools?
Ed reformers told parents and the public that right exists, that anyone can attend any school they want with one of their vouchers. They say it all the time- it’s the main selling point for vouchers. Is it true? How do they plan on enforcing it? They shouldn’t blame the parents for suing (and they will sue)- after all, hundreds of ed reform leaders in government assured parents and the public this was true.
Betsy DeVos actually tells parents and the public they should be allowed “the same” choices that wealthy parents have. She knows vouchers don’t in any way guarantee this (obviously a low value ed reform voucher won’t cover tuition at the schools she and her friends use) but it’s good marketing so she says it anyway.
They’ll eventually figure out they were lied to.
Charter schools are publicly funded, yet they exclude students all the time. They seem to be getting away with exclusionary tactics with few questions asked.
“good marketing.” YES.
I would encourage anyone to go read one of the 100’s of ed reform sites and look for any substantive discussion of the legal issues around equality of access to private schools and vouchers.
There’s none. They don’t grapple with it at all. They simply jam thru the vouchers based wholly on their ideological belief in markets and hope the experiment somehow ends up “better” for middle and lower class families. It will take decades for them to be able to show it’s “better”, but they’re more than willing to sacrifice as many public school students as it takes to prove their ideological theories. If the experiment fails don’t worry- they’ll expand it, because more ed reform is always the solution to ed reform failures.
The national push for vouchers is itself a doubling down of the ideology. Some of them used to oppose vouchers. Now they’re at 100% lock step agreement. Vouchers it is! No dissent at all.
The Ohio legislature, which is wholly captured by the ed reform lobby, spent the last two years on private school vouchers.
You know what they didn’t manage to get done? Anything for the 90% of kids and families in this state who attend public schools. They accomplished nothing for the vast majority of students and families.
In a way I think it’s a relief for a lot of public school families. While they were occupied funding the private schools they prefer, our kids were spared a whole round of ed reform gimmicks and cheap junk that would have been put in with little thought or effort and would then quietly die in practice, but not before we plowed millions of dollars into whatever this year’s ed reform fad is.
You’re really torn – while it’s bad that lawmakers no longer accomplish anything for public schools or public school students, there is the upside of no longer being subject to whatever’s fashionable in elite ed reform circles.
Here in Ohio, we’re just hoping the ed reformers who run our public school policy, but don’t support, use, or work in public schools, allow SOME effort and investment to be directed to the 90% of kids in the state who DO NOT attend the private schools ed reform prefers.
We’re wondering why we’re paying thousands of state employees who return little or no value to children who attend the unfashionable “government schools” sector.
I get that our schools and students are unfashionable and ideologically incorrect, but since so many ed reformers are collecting a public paycheck, perhaps they could lower themselves to perform some work on behalf of 90% of students.
Maybe we could think about hiring some public employees who actually value our kids and schools and exert some effort, instead of people who work exclusively on “reinventing” systems.
Wow, unexpected great news among the many bad ones.
I bet this means, they won’t be able to pass another voucher law for years, and by then nobody wants them anyways.
Because the only way to pass a voucher law in TN is to exclude rural areas. Rural areas don’t want vouchers. So now they cannot pass selective voucher laws either.
Of course, there is pushback and threat of appeal by the Governor. The Governor doesn’t take this loss lightly—after all, he used all possible political maneuvers to make the measure pass.
While Lee on Tuesday urged families to continue applying for the program despite the judge’s order, his office on Wednesday evening announced that the state will not be processing applications or taking further action to implement the program until the legal questions are resolved in court.
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Lee said Tuesday he’ll continue full steam with the ESA initiative this year and he “believes it will continue to move forward,” despite major cuts to education initiatives that would benefit far more students statewide.
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House Republican Caucus Leader Jeremy Faison, R-Cosby, who earlier this year announced he regretted voting in favor of the bill, pointed to how important the school choice initiative has been to the governor.
“I would say he’s going to be lobbying heavily to make sure everything is done within his power to keep it there,” Faison said. “And I would say there’s going to be some that are fighting to get it out.”
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It’s possible, Faison said, the $38 million in funding to reimburse two school districts could be removed from the budget, regardless of how the court battle shakes out.
That would mean if Tennessee won its appeal and the program began as planned this fall, Memphis and Nashville districts who lose students and state funds to private schools and then would not be reimbursed for the loss of that revenue. The ESA program would give families on average $7,100 per student enrolled.
Johnson said such a scenario, while technically possible, would go against the “spirit of the legislation,” which is not to punish public schools that have children leave with a voucher.
“I would be hesitant to move forward with implementation of the ESA program without backfilling the money,” Johnson said. “I don’t know that that’s a direction we would want to go.”
My feeling is, even those who voted for the measure will not support the Governor in appealing the judge’s decision. The Governor is crossing the line here. He hasn’t learned when to withdraw from a battle.