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Tennessee Court of Appeals to hear arguments Wednesday on school-choice program

The Tennessee state flag flies.

(The Center Square) – The Tennessee Court of Appeals will hear arguments Wednesday on the constitutionality of the state’s Education Savings Account Pilot Program.

A Davidson County Chancery Court ruled the program unconstitutional in May, halting rollout of the program, and the state appealed.

The General Assembly passed the ESA pilot program in 2019. The program would provide state-funded scholarship grants of about $7,000 to low-income students in Davidson and Shelby Counties to enable them to attend a private school of their choice as an alternative to public schools in either county.

Fewer than one in five students in Shelby County Schools are performing at grade level, according to the latest Tennessee Comprehensive Assessment Program assessments. In Nashville, fewer than one in four students are performing on grade level.

“If the ESA program were going forward this fall as intended, that’s thousands of students and thousands of families who would be able to make decisions for themselves to find schools that fit their educational needs, in the midst of an unprecedented pandemic,” Institute for Justice Attorney Keith Neely told The Center Square. “But instead, these parents are left at the whims of school systems that have already failed them.”

In February, the city of Nashville, Nashville Public Schools, and the Shelby County Government filed suit against the Tennessee Department of Education, claiming the ESA program was unconstitutional. After the lower court’s adverse ruling, the state appealed.

The Tennessee Supreme Court declined in June to intervene and review the lower court’s rulings, and the program remains unable to move forward pending a ruling from the Court of Appeals.

“When you combine just the general poor quality of education in Metro Nashville and Shelby County with something like the coronavirus, which has already thrown a wrench into how school districts are trying to send students back to school – if they’re going to send students back to school at all – we’re talking about a significant educational disruption in these children’s lives,” Neely said.

Tennessee’s Constitution prevents the General Assembly from passing local special, local laws that are narrowly “applicable to a particular county” without  local approval. The principle is known as the Home Rule Amendment. Plaintiffs Metro Nashville and Shelby County claim the program violates the Home Rule Amendment because the pilot program is limited to operate in only two counties.

Wednesday’s hearing in the Court of Appeals is limited to two points: whether the ESA program violates the Home Rule Amendment, and whether the government plaintiffs have standing for a constitutional challenge under the Home Rule Amendment.

“Schools are for children and not the other way around,” Braden Boucek, vice president of legal affairs at the Beacon Center, told The Center Square. “Nashville and Memphis have chronically failed to provide a quality education to school children. When the state acted to provide an educational lifeline, the cities sued to keep public school children trapped in failing public schools. That was wrong, and we will be urging the Court to agree.”

The state was on track for implementation of the program for the 2020-2021 school year before the May ruling.

Regardless of how the Court of Appeals rules after Wednesday’s hearing, the case is expected ultimately to be appealed to the Supreme Court.

“It’s a critical moment in education right now,” Shaka Mitchell, state director of the American Federation for Children, told The Center Square. “Parents need options in ways they’ve just never needed them before. The ESA program would go a long way in giving parents a lift.”

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