Update on Tennessee School Voucher Litigation

May 20, 2022


Ever since its passage in 2019, Governor Lee’s Education Savings Account legislation, usually referred to as the “school voucher” bill, has been mired in litigation. Up until this week, the administration has generally been on the losing side of the court cases. The bill passed with the narrowest of margins in the House of Representatives after counties were removed in order to garner votes necessary to pass the legislation. As adopted, it only applied in Davidson and Shelby Counties and in the state’s Achievement School District. Those two counties immediately filed suit on several grounds. One of the challenges to the legislation was that it violated the Tennessee Constitution’s “home rule” provisions, which require legislation that is local in nature to provide a method for local approval. 

The trial court ruled that the law did violate that provision of the constitution and granted summary judgment to the plaintiffs on that ground. This decision was subsequently upheld by the Court of Appeals. The case was argued before the Tennessee Supreme Court last year, but had to be re-argued as a result of the death of Justice Connie Clark last September. This week, the court ruled that the plaintiffs did have standing to raise that objection, however, in a 3-2 decision, the court found that the Home Rule Amendment did not prohibit the legislation. The court took a very narrow reading of the following language in that amendment:


 “Any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected.”

The majority opinion found that the act does not apply specifically to a county or municipality, but instead to a local education agency in those communities. This holding was directly in conflict with how lower courts had read those provisions.

The trial court had found that there was an “inseparable partnership” between the school systems and their local governments. The Court of Appeals likewise found there to be an important financial relationship between the entities. The state supreme court instead on the phrase “...applicable to a particular county or municipality…” and ruled that the act did not apply to a county or municipality, but to school systems.

Although some news reports have given the indication that the voucher program has been upheld by the courts and is now set to go forward, this decision was a narrow interlocutory appeal specifically reviewing the summary judgment for Davidson and Shelby Counties based on the Home Rule Amendment. The court set aside that judgment in favor of the plaintiffs and has remanded the case to the trial court to go forward with consideration of the other claims brought by the plaintiffs. The trial court had issued an injunction, prohibiting the state from proceeding with implementation of the program. Whether or not the injunction will be challenged remains to be seen. 

You can see the full text of the majority opinion HERE  and the dissent HERE