TN voucher law in limbo as state loses request to stay judge’s order

A Nashville judge rejected the state of Tennessee’s request to allow parents to continue applying for education savings accounts pending a legal appeal of her earlier ruling that the new law is unconstitutional.

Chancellor Anne Martin ruled from the bench on Thursday that the Department of Education can accept no more applications for the new voucher program, which allows families to use public tax dollars to help pay for the cost of private schools, after today. After that, applications will be suspended pending the state’s appeal.

Martin also said the department must add a note on its website updating the public that the immediate status of the voucher program is in question because of the legal battle.

And Martin offered a polite rebuke of Gov. Bill Lee, who said earlier this week the state would move forward with the voucher program – his most notable legislative accomplishment – even though the Davidson County chancellor ruled it unconstitutional on Monday.

The state had sought a stay of Martin’s order so that it could continue processing voucher applications. The problem is partially procedural. According to the state more than 2,000 students have applied for vouchers, but many of the initial applications required additional paperwork and followup questions.

Martin ruled that the law is unconstitutional because it violates a state constitutional provision called the Home Rule, which makes it illegal for legislation to single out a specific municipality without its consent. The state wanted permission to continue with the administrative work of dealing with the voucher applications until the appeal was decided.

Martin said she has taken the legal steps necessary to expedite the appeals process.

“In the meantime there is the issue of what, if anything, the state defendants can do in relation to the ESA program, and also very importantly what the public is being told about the status of the program and what applicants should be doing to plan for the 2020-21 school year,” Martin said, before moving on to a Lee’s comments that the state will move forward with implementation despite her ruling. “It is not helpful when representatives of the state make statements to the public and the press that are inconsistent with the court’s ruling and the true status of the program.”

The real showdown will take place next. The state has already appealed Martin’s ruling. It is possible the state will apply for permission to skip the Court of Appeals and take the case directly to the State Supreme Court because of the pressing nature of the lawsuit.

Vouchers were pursued for years in Tennessee by school choice advocates, but Lee’s administration was the first to get the legislation approved thanks in part to a compromise that limited the program to Shelby County and Davidson County, which have the lion’s share of academically struggling schools.

A lawyer for parents whose children are on track to take advantage of the voucher program argued that without staying her initial order, their clients would suffer irreparable harm since the ruling could delay the program from being implemented for at least a year. Defendants have maintained that children trapped in failing schools will have no recourse if the legal battle is prolonged. In one instance, a parent whose child has been accepted to the voucher program filed an affidavit stating they will homeschool this year if Martin’s ruling is upheld and the program can’t be implemented.

Reach Nate Rau at [email protected] and 615-498-5202. Follow on Twitter @tnnaterau.