Parents, advocates sue over vouchers
Eleven Nashville and Memphis parents are suing Tennessee for its controversial Education Savings Account program, marking the second lawsuit filed contending the program is unconstitutional.
The suit was filed Monday on behalf of the 11 by the American Civil Liberties Union of Tennessee, the Southern Poverty Law Center, the Education Law Center and Robbins Geller Rudman & Dowd LLP.
The petition, filed in Davidson County court, says the state’s program violates numerous provisions in Tennessee’s constitution. The lawsuit outlines similar complaints made in a February lawsuit by Nashville, Shelby County and Metro Nashville Public Schools.
Education savings accounts, a voucher-style program, use taxpayer funds deposited for families who withdraw their children from public school. The program is limited to Memphis and Nashville and was a campaign promise of Republican Gov. Bill Lee.
The suit alleges that the 11 parents will be “irreparably harmed” by an ESA
program that is tied to “illegal spending.” It says the program violates public school students’ rights to the adequate and equitable educational opportunities guaranteed under the Tennessee Constitution.
Tracy O’connor, a Shelby County Schools mother of five and a plaintiff in the case, said she is concerned about the future of the state’s public schools and fears the law will encourage “fly-by-night” private schools with little oversight or regulations to open in order take advantage of ESA funds.
“It is an unacceptable use of my taxpayer dollars,” she said.
On Monday, Lee said when asked about the lawsuit that what he is “most concerned about is kids in our worst-performing school districts having access to quality education.”
“We feel confident that that’s headed down the right path,” Lee told reporters. “There certainly are those who are detractors but there’s a real desire for those kids to have access and that’s what we’re working to get and we feel confident about that path.”
Complaint similar to February lawsuit
Similar to the February complaint, the lawsuit says the program violates the “home rule” provision of the state constitution, which outlines that any law that affects isolated counties must also require local approval. The Education Savings Account program law applies only to Shelby and Davidson counties.
Southern Poverty Law Center Attorney Christine Bischoff said the organization is deeply concerned about the “devastating impact” the program will have on the 200,000 students in Nashville and Shelby County Schools.
“In comparison to other voucher laws across the country, the Tennessee law is particularly problematic because the law targets two counties in the state that strongly and very publicly opposed the passage,” Bischoff said.
The lawsuit also alleges the state is violating Tennessee’s requirements to guarantee all children an opportunity to obtain an education under a system of free public schools and that the state is required by courts to provide an adequate education to all children in the public school system.
The lawsuit says the state is diverting public education funds for the use of private schools even as Shelby County and Nashville have suffered from a lack of state funds. Both school districts have sued the state, claiming they are underfunded under the Basic Education Program.
And the new lawsuit alleges that the law will allow for the discrimination of students by allowing participating private schools “to deny special education programs and services to students with disabilities by providing that program participation ‘has the same effect as a parental refusal to consent to the receipt of services under the Individuals with Disabilities Education Act.’”
Under the ESA law, families opting into the program must forfeit their IDEA rights.
Proponents of the program have asked a judge to throw out the initial lawsuit against it.
Last week, several parents and private school leaders, represented by the Liberty Justice Center, announced they are seeking to intervene in the ESA lawsuit filed in February. The Liberty Justice Center said the schools and three families would qualify to participate in the Education Savings Account program.
The Beacon Center of Tennessee, a conservative think tank, has also sought to intervene on behalf of two Nashville families.
Controversial program from the start
The program has been marked by controversy.
The Tennessee Department of Education recently fielded plenty of Republican and Democratic lawmaker questions about the procurement of and use of funds for a two-year, $2.5 million contract with Classwallet. The company, hired by the state without accepting other bids, will administer applications and funds being used for the ESA program.
But even before this year’s rollout, the program passed in the House by one vote and only after thenhouse Speaker Glen Casada, R-franklin, held open a tied vote for over 40 minutes to find a member to change positions.
There are reports about a possible federal investigation into whether improper incentives were offered as part of the House vote.
Several lawmakers have also filed legislation this year to repeal the program.
The newly announced challenge to the ESA measure is the latest lawsuit the state is facing over a law approved during the 2019 legislative session. The state is now facing eight lawsuits over six measures approved by the General Assembly and signed into law by Lee last year.
Reach Jason Gonzales at jagonzales@tennessean .com and on Twitter @Byjasongonzales.