Lee school

Gov. Bill Lee at Ross N. Robinson Middle School earlier this year

Tennessee Supreme Court justices on Thursday questioned both supporters and opponents of Gov. Bill Lee’s education savings account program, preceding a looming decision on the 2019 law’s constitutionality.

Davidson and Shelby counties — the only two counties where the law would apply — sued the state early last year, arguing in part that it violated the state constitution’s home rule provision, which prohibits the Tennessee General Assembly from targeting individual jurisdictions.

The counties, represented by outgoing Metro Legal Director Bob Cooper, advanced that argument during oral arguments Thursday, as did an attorney for the state and representatives from two advocacy groups that have joined the state to defend the program. Both a Nashville trial court and a panel of the Tennessee Court of Appeals have previously ruled the measure unconstitutional, and its implementation has been delayed as the case makes its way through the judicial system.

“This case is about enhancing educational opportunity for low-income children in Tennessee’s lowest performing schools, about offering those children the same chance that more privileged students have to pursue an education that best meets their needs,” Andrée Sophia Blumstein, solicitor general in the office of the Tennessee Attorney General, told the justices.

Under the law, qualifying students in Nashville and Memphis could get more than $7,000 annually to spend on private-school tuition and other educational costs. The two counties argued that it was an “unfunded mandate,” requiring them to help fund students’ educations even after they leave the local public school system. 

“It is a burden on the counties, requiring them to spend more money than they would be required to otherwise,” Cooper said, adding that the law “will apply to students who have never set foot in county schools.”

Under the law as written, the state will grant the school districts funds to make up for lost revenue, but only for the first three years of the program and only to be used on “school improvements” and not as general fund revenue.

“In year four of this act, there’s no provision for grant reimbursement,” Justice Sharon Lee said. “County governments will have to budget additional funds to make up for the loss in grant funding. How does that not affect the county? It’s going to affect the way they govern when they have to raise the tax rate.”

Opponents of the bill predicted its legal troubles as it made its way through the General Assembly as one of Lee’s first major legislative pushes. After initially applying to more counties — and leaving open the possibility that counties could move in or out of the program based on population or the number of struggling schools in their districts — the language was tightened to ensure that it would only ever apply to Nashville and Memphis schools. Some lawmakers credited the exclusion of their home districts in voting for the bill, which only passed in the House after then-Speaker Glen Casada held the vote board open and successfully urged GOP Rep. Jason Zachary of Knoxville to change his vote.

The justices did not indicate when they would issue a ruling, but Lee said Wednesday that it is unlikely that, even in the event of a favorable ruling, the program could be in place for the start of the coming school year. He said the program could instead begin in January if a favorable ruling comes down.

Despite Blumstein’s argument that the ESA program is a pilot with the expectation that it could be expanded to other counties, Lee has said he does not plan to expand it.

“We think it’s important that Tennessee students have the opportunity, and most important that parents have the choice for their children,” he said.

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