What’s next for Tennessee’s education savings account program?

(reimaginED) – A week after winning a key battle in a challenge to its 2019 education choice program, Tennessee officials remain unsure when the program will be able to get off the ground.


(reimaginED) – A week after winning a key battle in a challenge to its 2019 education choice program, Tennessee officials remain unsure when the program will be able to get off the ground.

Gov. Bill Lee, who made education choice the centerpiece of his 2019 legislative agenda, said state officials need to determine when the court will rule on the remaining legal issues in the case before forging ahead.

“Once we determine the speed with which the court will make its final decisions, then we can move forward with the particulars to make sure this works and fits, and how it is that we roll it out,” Lee told the Associated Press.

The lawsuit came after the state legislature passed the Tennessee Education Savings Account Pilot Program, which would allow qualifying students to receive up to $7,300 to spend on private school tuition, textbooks, tutoring and other pre-approved education-related costs. The law set the program up as a pilot in Davidson and Shelby counties, which include Nashville and Memphis, respectively and include many of the state’s lowest-performing schools.

To qualify, families would have to make less than double the federal guidelines to qualify for free lunch. That would mean about $67,000 annually for a family of four. The program would be limited to 15,000 students but could be expanded with additional legislation.

Tennessee already has a statewide individualized education account program for students with certain unique abilities which was approved in 2015 and expanded this year to include students with dyslexia.

The counties swiftly sued the state, with the main argument being that it violated the “home rule” provision in the state constitution, which says that the state can’t pass legislation singling out individual counties without their permission.

In 2020, a judge ruled in the counties’ favor on the home rule argument and issued an injunction keeping the state from moving forward with the program while the case was being litigated. An appeals court upheld that decision.

Meanwhile, the Institute for Justice, a nonprofit, public interest law firm that also represents a family in a Maine education choice case now before the U.S. Supreme Court, and the Beacon Center of Tennessee, a nonprofit organization that promotes free-market policies, were allowed to join the case as intervenors on behalf of parents whose children qualified for the program.

“All the kids were zoned for just terrible schools,” said David Hodges, one of the Institute for Justice attorneys who served on the legal team representing two moms who worked as hair braiders in the Memphis area. The Beacon Center represented parents from the Nashville area. “They just wanted to go a different school so they could get a good education.”

Last week, the Tennessee Supreme Court ruled that the law did not violate the state’s home rule provision and sent the case back to the lower court for it rule on the counties’ two remaining arguments. In its ruling, the high court said the constitutional provisions applies only to local governments, not school districts. And though the counties were the only ones named as plaintiffs, the school districts were included.

“They essentially were arguing that the school district and the county were one and the same, and that by bringing this lawsuit the county was essentially bringing the school district along,” Hodges explained.

Hodges said the victory was a major step forward for the state as the home rule argument was strongest of the three arguments the plaintiffs offered. The remaining arguments include claims that the programs violate educational and equal protection provisions under the state constitution.

He said the ruling, while good for the education choice in the Volunteer State, likely won’t influence other cases.

“This was an argument that was pretty unique to Tennessee, so we do not anticipate it being the new frontier in education choice litigation,” he said. “It was a creative challenge by the counties, but when we looked at the law and looked at the way the program was designed, we were confident that the argument the counties were making was one that out of step with Tennessee case law.”

This article originally appeared at reimaginED.