Just a weekend before the start of the school year, lawyers for Shelby and Davidson County schools asked a court Friday, Aug. 5, to slow down what they describe as the Lee administration’s “rushed” and “chaotic” implementation of Tennessee’s school voucher law.

Less than three hours after the end of a virtual hearing held Friday via Zoom, a three-judge panel denied their request for another injunction on the law, which applies only to Nashville and Shelby County.

School vouchers to be implemented immediately, governor says

Last month, the same panel lifted the injunction that had kept the Education Savings Account Act from taking effect since it was passed in 2019. Since then, the state has been working to make taxpayer-funded private school vouchers available in some form by the time class starts — which in Shelby County is Monday, Aug. 8.

Memphis-Shelby County Schools and Metro Nashville Public Schools argued the law should be enjoined because there are still questions to be resolved from the original lawsuit and because the state is not setting up the voucher system in the way the law requires.

“The Plaintiffs have failed to demonstrate that the extraordinary remedy of an injunction is warranted,” states the court’s order, signed by Davidson County Chancellor Anne Martin, the chief judge, and Judges Tammy Harrington and Valerie Smith.

“Although the Plaintiffs’ concerns at the rushed process, uncertain details of the ESA rollout and apparent lack of compliance with some of the ESA Act provisions are worthy of further consideration, those factors do not provide a basis for the Court to enjoin the implementation of the program,” the panel’s order states.

“The ultimate issue of the constitutionality of the ESA Act remains before the Court, pending further proceedings, based upon the Tennessee Constitution’s Equal Protection and Education Clause.”

Supreme Court approves school vouchers for Shelby, Davidson counties

The Tennessee Supreme Court ruled in May that the 2019 Education Savings Account law does not violate the Home Rule amendment of the state constitution, which prohibits the state from targeting local governments without their consent, and sent the case back to a lower court.

The Home Rule claim was one of the school districts’ three claims in their original lawsuit. The other two claims, that the law violates the state constitution’s Equal Protection Clause and Education Clause, have not been resolved.

“It’s not that you’re taking Davidson or Shelby County’s money alone, it’s that you’re taking Davidson and Shelby County’s money — and nobody else’s,” said Allison Bussell, an attorney for Metro Nashville. “The counties are going to be injured by this program, and that is by design. … If the goal were to help students in low-performing districts, the legislature would have helped students in low-performing districts.”

Bussell and her colleagues said the law unfairly targeted Nashville and Memphis because at least two other school districts — Fayette and Madison counties — have higher proportions of underperforming schools than MSCS and MNPS. They also said vouchers shouldn’t be allowed under the state constitution’s definition of “a system of free public schools,” and that there is plenty of choice within the school systems.

Gov. Bill Lee says 2,000 families in Memphis, Nashville have applied for school vouchers

The Tennessee Department of Education is not rolling out private school vouchers via bank accounts, as the law contemplates. Instead, they’ve asked the schools to cover tuition on the front end, and seek reimbursement later.

“TDOE is not even complying with its own statutory requirements for how it’s going to effect the program,” Bussell said.

Lawyers for the state argued that further delaying the law would harm low-income families unable to take their kids out of underperforming public schools. They argued the districts were overstating the fiscal impact that would be caused by students leaving.

“Every year of their child’s education is meaningful,” attorney Stephanie Bergmeyer said. The plaintiffs’ financial arguments, she said, were “replete with assumptions and speculations.”

State Sen. Brian Kelsey (R-Germantown), who works as an attorney for the conservative Liberty Justice Center, described his opponents’ arguments as “flimsy” and with “literally no basis in Tennessee law.”

Opinion: If the new school voucher law isn’t the answer, what is?

He said the constitution’s requirement that the state create a free public school system doesn’t stop it from creating a voucher program, and that there would be no permanent irreparable harm. Kelsey also said no Tennessee court had determined education to be a “fundamental right.”

He minimized the school districts’ Equal Protection and Education Clause claims, saying they’d essentially lost the case when the state Supreme Court decided the law didn’t violate the Home Rule amendment.

“They determined their strongest claim, and it lost,” Kelsey said.

Kelsey and Bergmeyer did not respond to requests for comment.

While Martin decided an injunction was unwarranted, she agreed with much of Bussell’s argument.

“If the state was doing this in a thoughtful, measured manner, and engaged in rulemaking — which is exactly what the statute provides that it would do and should do — then a lot of these (uncertainties) would be answered,” Martin said.

“It hasn’t done any rulemaking to answer all these questions,” Martin said. “The real issue is the state’s obligation to do it right. The state is choosing to hasten the timeline … there is a right way to go about these things.”