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The Davidson County Courthouse in Nashville will be the hub of litigation over Tennessee's new voucher law. Lawyers for Metro Nashville filed a lawsuit Thursday that names Shelby County government as a co-plaintiff and Gov. Bill Lee as one of the defendants.

The Davidson County Courthouse in Nashville will be the hub of litigation over Tennessee’s new voucher law. Lawyers for Metro Nashville filed a lawsuit Thursday that names Shelby County government as a co-plaintiff and Gov. Bill Lee as one of the defendants.

Metro Nashville, Shelby County sue to stop Tennessee’s school voucher program before it starts

Shelby County joined Metro Nashville government Thursday in suing the state over a new education voucher law that its leaders say “unilaterally and arbitrarily” targets Tennessee’s two largest cities.

The lawsuit says the 2019 state law saddles those communities with an unfair financial burden by transferring state and local funds from struggling public schools to private schools.

School systems in Tennessee’s other 93 counties are not affected by the controversial legislation — an omission that officials in Shelby and Davidson counties argue is unconstitutional.

Attorneys for Metropolitan Nashville government filed the lawsuit in Davidson County Chancery Court after Shelby County government signed on as a co-plaintiff, along with Metro Nashville Public Schools. The complaint names Gov. Bill Lee, Education Commissioner Penny Schwinn, and the Department of Education as defendants, and asks that a judge strike down the law or, at the very least, temporarily block the state from launching its new education savings account program this fall.

The state attorney general’s office declined to comment on the litigation, while several outside organizations announced quickly that they will work to defend the law as part of the national battle over school choice.

The suit is the first of several legal challenges expected over the law, which passed last spring after one of the most contentious legislative battles in recent history.

The complaint hinges mostly on the argument that Tennessee’s Constitution prohibits the legislature from singling out individual counties unless approved by two-thirds of the members of those counties’ legislative bodies, or a majority of voters. Those bodies have consistently passed resolutions against vouchers in Memphis and Nashville, and almost every state lawmaker representing those communities voted against the bill.

“The General Assembly cannot impose its will on only two counties without their approval,” the complaint says. “If the legislature believes that education savings accounts are good policy, it may pass a bill of general application so that all counties share the purported benefits of the program.”

The 44-page lawsuit painstakingly chronicles the voucher bill’s months-long evolution — from a proposal that would have affected districts and students in six counties with low-performing schools to a law that applies to only two.

Among the examples: GOP lawmakers representing other districts with struggling schools changed their votes one by one to support the bill as they received assurances from House leaders that their counties would be shielded from its application.

“I committed to vote for ESAs if Hamilton County was excluded from the program,” Rep. Patsy Hazelwood said at one point on the House floor.

In a dramatic showdown when the vote was deadlocked at 49-49, Rep. Jason Zachary of Knoxville flipped from nay to aye to break the tie, later telling reporters on camera that then-House Speaker Glen Casada had promised him that Knox County would be “held harmless” from the bill’s Senate version. 

Rep. Matthew Hill, an outspoken voucher supporter, argued on the floor that the bill was limited to Shelby and Davidson counties because both have high concentrations of low-performing schools. 

But the complaint highlights another floor speech by the Jonesborough Republican that suggests dual motives for singling out the state’s two Democratic strongholds. “We are leading the way to protect [local education agencies], while also ensuring that our poorest children in those deep blue metropolitan areas have a fighting chance at a quality education,” Hill said.

School districts in Memphis and Nashville are already embroiled in a legal battle with Tennessee over the level of state funding they receive for schools. That case is expected to go to trial this year after five years of working its way through the courts.

Nashville Mayor John Cooper and his law director, former state attorney general Bob Cooper, updated that city’s school board members on the latest litigation after the lawsuit was filed.

Mayor John Cooper announces the lawsuit to school board members in Nashville.

Mayor John Cooper announces the lawsuit to school board members in Nashville.

Marta W. Aldrich/Chalkbeat

“Ensuring a bright future for Nashville requires more, not less, investment in our public schools,” the mayor said in a statement. “It is both my job and the responsibility of this administration not only to protect Metro’s limited resources for public school funding but to seek more public education investment from the state.”

In Memphis, a spokeswoman for Shelby County Mayor Lee Harris said he had no immediate comment.

All have said previously that the new voucher program will harm the budgets of Metro Nashville and Shelby County, while also affecting the operations and finances of Shelby County Schools and Metropolitan Nashville Public Schools. That’s because the law requires those districts to relinquish their state and local per-pupil funds for any student who leaves public schools to participate, costing the Nashville district an estimated $162 million in the first five years, as well as additional federal funding.

At the same time, both districts have fixed costs like facility maintenance, food service, transportation, and long-term contracts.

Relief from a school improvement grant program under the law will be “insufficient,” the suit argues, and also may never happen because that provision says the money is “subject to appropriation.” Those grants would only last for three years.

Making good on a campaign promise, Lee proposed education savings accounts soon after entering office a year ago. He said they would give parents more education choices for their children by helping low-income children in failing schools.

But the suit takes aim at the plan for not making the voucher program apply statewide to qualifying students in low-performing schools. “There is no rational basis for the General Assembly imposing the ESA Act on Davidson and Shelby counties while seeking to protect equally poorly performing [districts], such as Fayette, Hamilton, and Madison counties, from the ESA Program’s inevitable and negative consequences,” the complaint says.

As a result, the suit charges, the state is failing to provide equal educational opportunities for all students.

On hand in Nashville for the mayor’s announcement were Sen. Brian Kelsey of Germantown and Rep. Andy Holt of Dresden, both Republicans who voted for the governor’s legislation.

“I’m here to listen, and I haven’t read the lawsuit,” Kelsey said. He referred reporters to “his boss” Patrick Hughes at the Liberty Justice Center, a Chicago-based organization that issued its own statement Thursday promising legal action on behalf of families planning to use Tennessee’s program.

The Institute for Justice in Virginia and the Beacon Center of Tennessee, two libertarian-leaning organizations, announced Thursday that they will intervene to defend the law as well.

Holt called the law “good enough” when asked about arguments presented in the complaint. “I’ve already cast my vote in favor of the ESA legislation,” he said. “It seems like maybe now we’ll see the take that the judicial branch will have.”

Shaka Mitchell, who heads the Tennessee chapter of the pro-voucher American Federation for Children, said the lawsuit’s arguments of unfairness struck him as hypocritical since it’s also unfair for some students to be stuck with a poor-quality education.

“We’ve been anticipating this for a long time,” Mitchell said of the lawsuit, adding that it “just made sense” to start the voucher program “in the two biggest cities where it could have the most impact.”

“A lot of people were frankly disappointed that their counties were left out of the final bill,” said Mitchell, an attorney whose organization has influence in the governor’s office.

Asked if the program could expand beyond Shelby and Davidson counties, Mitchell said that’s not likely to happen this year.  “But, in subsequent years, sure,” he said.

You can read the full lawsuit below: