Familiar arguments as Tennessee judges hear appeal over block to Lee's school voucher program in ongoing case

The pivotal question over Gov. Bill Lee's controversial school voucher program remains whether limiting the program to just two counties — Davidson and Shelby — is unconstitutional. 

But attorneys also quibble over who is ultimately responsible for Tennessee's education. 

In a hearing before the Court of Appeals on Wednesday, the panel of judges questioned both sides about the precedent in the case over whether the program would affect county governments significantly, and therefore trigger what's known as the "home rule" clause of the state constitution.

A ruling was not issued Wednesday. 

"We like to believe the General Assembly means something when they put it in a statute," Judge D. Michale Swiney said during the hearing before a three-judge panel.

The law, if implemented, would allow eligible families in Davidson and Shelby counties to use public money to fund private school tuition, among other educational needs. It is Lee's signature education initiative, passed last year.

Plaintiffs say the law itself — its narrow focus on two counties, the way the funds are allocated and assessed and the inability of the counties to approve the plan before it was passed — are all unconstitutional under state law. The state insists the legislature had the power to pass the bill, and that it would be a net positive to struggling school systems.

"The ESA act applies only two counties, and it has a substantial effect on those counties' finances and sovereignty," said Metro Nashville Legal Director Bob Cooper, a former state attorney general. "If the state wants to take over providing public education in Tennessee, they wouldn't have to worry about the Home Rule amendment. But it has enlisted local government to play the primary role in education. So it must treat local governments equally, or else get local approval.

"This is a case for which the Home Rule amendment was designed."

The plaintiffs argue that counties have a mandate to provide and maintain free public education, which means any significant changes like the ESA do impact their core functions. 

One suit was filed by a collection of public school parents and community members from Nashville and Memphis and the other by Davidson and Shelby Counties and the Metro Nashville Board of Public Education. They were heard together before the appellate court on Wednesday. 

Davidson County Chancellor Ann Martin overturned the law in June on the grounds it violated a section of the state constitution known as "home rule," because the law only applied to the two counties. 

But the state attorney general quickly appealed that decision, even as two courts blocked the Lee administration from proceeding with the program pending the appeal’s outcome. The state argued that education policy is the state’s responsibility — and that the local constitutional protections known as “home rule” don’t apply in this case.

Other defendants joined the case and were allowed to intervene, arguing on behalf of private schools and parents in favor of the program. 

Tennessee Sen. Brian Kelsey, R-Germantown, who voted in favor of the ESA act in the General Assembly, represents some of the intervening clients through his work with the Liberty Justice Center.

He argued Wednesday that schools would come out ahead from the funding shift, a point on which plaintiffs disagreed.

"The plaintiffs are trying to have their cake and eat it, too, because on one hand they argue about how the how the Home Rule amendment affects the counties, and then on the other hand the argument about how it affects the school districts," Kelsey said. "Respectfully, Your Honor, it's not an injury because, again, that is a policy decision that is within the realm of the legislature to make."

Swiney questioned whether the legislature's ability to make policy decisions could never be an injury. 

To the plaintiffs, judges focused questions on what the scope of the potential impact would actually be, and whether the law targeting two counties, instead of just one, was a true Home Rule trigger.

The law, narrowly passed in 2019, was set to go into effect this fall, as Lee maintained he was committed to implementing the program despite uncertainties surrounding COVID-19 related closures and changes to schools. But that's all on hold now because of the court case.

The Tennessee Supreme Court last month declined to wade into the legal battle.

Even if the appellate court rules in favor of the state, the logistical work needed to process applications and implement the program would be impossible for the 2020-2021 school year. The school year has already started. 

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