School Voucher Law Ruled Unconstitutional

Builguissa Diallo, a naturalized U.S. citizen living in Memphis, holds her 5-year-old daughter, Bintah, who’s about to enter kindergarten. Her parents want her to attend a private school with money allocated through the state Education Savings Account Act. Courtesy photo

By Clint Confehr

NASHVILLE, TN — Davidson and Shelby counties successfully challenged Tennessee’s Education Savings Account Act in chancery court, but advocates of what’s also known as school vouchers say they’ll appeal Chancellor Anne Martin’s ruling.

Chancellor Martin’s decision issued Monday evening follows a six-hour hearing April 29 when Metro Law Director Bob Cooper argued the state Constitution was amended in 1953 to protect local governments from “the General Assembly’s excesses and treatment of local government.”

Arif Panju, senior attorney for the Institute for Justice, said Martin shouldn’t invalidate the law providing state money to help Nashville and Memphis students attend private schools because Tennessee’s Constitution states the Legislature’s power comes from the people, so power is exercised for people, not local governments.

A host of other attorneys participated in the hearing.

Details on Chancellor Martin’s ruling will be posted on tntribune.com.

In February, Mayor John Cooper announced lawsuits against the ESA Act by Nashville, its school board and Shelby County. The American Civil Liberties Union and the Southern Poverty Law Center filed separate lawsuits. Martin was asked to: consolidate the cases; dismiss them; issue an injunction against implementation of the law; and, declare it unconstitutional.

Gov. Bill Lee’s election platform advocated ESAs so some money appropriated for education could “follow” students and be spent on private education as an alternative to “failing schools.” Lee, Education Commissioner Penny Schwinn and the education department were named as defendants.

If a state act affects local government operations it needs approval by the local legislative body or a popular referendum, said Cooper. “The ESA Act does not provide for local approval,” said Cooper, a former Tennessee attorney general who previously led Metro’s Charter Revision Commission.

Panju said, “They want to raise the district’s interest above that of the people.” In a previous case brought by the Institute for Justice, headquartered in Alexandria, Va., Panju helped represent six parents advocating the Alabama Accountability Act. Their position prevailed in Alabama’s Supreme Court.

Education of children is a goal and responsibility of the state, Panju said, citing Tennessee’s Constitution. The Institute for Justice contends that ESAs will allow “thousands of low- and middle- income Tennessee families the opportunity to send their kids to better performing schools starting with the 2020-21 school year.”

Panju represents two Tennessee parents, Natu Bah and Builguissa Diallo, who want to send their children to “better schools,” the Institute for Justice states.

“People should be central” to this case, Panju said, “not how it effects the budget of the government that doesn’t like what might happen if those people take advantage of the law that was passed to benefit them.”

Cooper said, “The [ESA] Act imposes a burden on … only two counties. It’s an infringement on their sovereignty. It will take state education funding from the two counties and their school districts to pay for private schooling.

“In doing so, it will significantly affect the counties’ operations and budgeting; all … without the counties’ approval,” Cooper said in his argument on the Home Rule Amendment.

About Clint Confehr 247 Articles
Clint Confehr — an American journalist since 1972 — first wrote for The Tennessee Tribune in 1999. His news writing and photography in South Central Tennessee and the Nashville Metropolitan Statistical Area began in the summer of 1980. Clint's covered news in several Southern states at newspapers, radio stations and one TV station. Married since 1982, he's a grandfather and is semi-retired from daily news work.