Guaranteed

Tennessee’s Constitution guarantees a free public education. Specifically, it states, “The state of Tennessee recognizes the inherent value of education and encourages its support. The General Assembly shall provide for the maintenance, support and eligibility standards of a system of free public schools.” Tenn. Const. art. XI, § 12. 

David Sciarra of the Education Law Center provides some insight into what constitutional guarantees to public education — like the one included in Tennessee’s Constitution — mean in the time of a global pandemic.

In the wake of closing physical school buildings and classrooms, states are legally mandated to educate all students while they are sheltering at home, regardless of student need or the conditions in the district in which they are enrolled. And this affirmative duty means that states cannot simply pass the buck to school districts to figure out how to respond to the impact of COVID-19 on their students and teachers, nor to shoulder on their own the responsibility for continuing instruction by remote, digital means.

To fulfill their Education Article duty during the COVID-19 school closure, the states, through their education agencies (SEAs), must take these minimum proactive steps:

  • Issue robust emergency guidance to school districts requiring the continuation of student learning through remote means and equitable opportunities for all students to access remote learning. The guidance must be comprehensive, addressing the full range of challenges faced by school districts, including addressing the specific legal rights and needs of students requiring interventions and supports, such as students with disabilities, English language learners, homeless students, students in foster care and those academically at-risk.
  • Provide intensive assistance to those districts serving high enrollments of low-income students and students of color to address the “digital divide” resource gaps that disproportionately affect these groups of students and impede delivery of remote instruction, including lack of internet access and devices and the need for online learning platforms, professional supports for teachers and other crucial assistance.
  • Collect data from districts on the extent of the “digital divide” with a focus on low-income students and students of color and make the data publicly available on a rolling basis.
  • Launch and implement a statewide campaign to make certain every student in need has access to meals and other supportive services while at home.
  • Issue guidance on district use of federal CARES Act emergency relief funds, prioritizing digital resource gaps and publicizing district plans for use of those funds.
  • Begin planning, through a statewide task force or work group, for appropriate supports to be in place when schools reopen, including the need for significant resources to compensate for student learning loss during school closure and support services for students experiencing trauma.
  • Ensure all public funds, including federal funds, are used exclusively to maintain and support the public education system and are not diverted to private virtual schools, tutoring services or other private education uses.

States are constitutionally obligated to make certain all children, no matter their life circumstances, have access to learning opportunities during the pandemic, and that students return to schools that are fully resourced and ready to meet their short- and long-term educational needs. Information on these resource needs will be crucial to inform the difficult budgetary decisions legislators and governors must make in the coming months, given the staggering fallout from the pandemic on state and local revenues.

The bottom line is this: states cannot close school buildings and then fail to educate children or permit and tolerate educational disparities among districts or vulnerable student populations. The constitutional obligation to provide public education belongs to the state, and only the state, and this responsibility cannot – and must not – be left to local district discretion, conditions or circumstances.

Privatizing Prowlers

Sciarra takes an opportunity here to caution against those who seek to profit from the pandemic by privatizing public schools. He notes that states should:

Ensure all public funds, including federal funds, are used exclusively to maintain and support the public education system and are not diverted to private virtual schools, tutoring services or other private education uses.

Meanwhile, we’ve seen our Tennessee profiteer friends at Pearson and K12, Inc. taking steps to use the COVID-19 crisis to grab even more taxpayer dollars with little accountability or oversight.

As the Tennessee General Assembly grapples with how to handle the inevitable budget challenges created by the current emergency, it’s important to remember Sciarra’s warning. The State of Tennessee MUST provide the resources necessary for a free public education for ALL students. This means directing necessary funds to local districts rather than simply relying on them to “make up the difference” between state funding and student needs.

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Jeff Bryant on DeVos’s Disruption

Education writer Jeff Bryant writes about how Betsy DeVos is using the COVID-19 pandemic to advance her school privatization agenda.

COVID-19 has shuttered public schools across the nation, state governments are threatening to slash education budgets due to the economic collapse caused by the outbreak. But the charter school industry may benefit from its unique status to seek public funding from multiple sources and expand these schools into many more communities traumatized by the pandemic and financial fallout. As school districts reported huge problems with converting classroom learning into online instruction delivered to students’ homes, often due to lack of funding, charter operators rolled out new marketing campaigns to lure families to enroll in their schools. Teachers have urged their districts to stop charter school expansions and co-locations, which they believe worsen the trauma that children in their communities are experiencing due to the virus. But the Trump administration and U.S. Secretary of Education Betsy DeVos have shown no signs of easing up their campaigns to further privatize public schools. “This is an opportunity,” said DeVos in an interview with right-wing radio talk show host Glenn Beck, “to collectively look very seriously at the fact that K-12 education for too long has been very static and very stuck in one method of delivering and making instruction available.”

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Betsy DeVos testifies before the Senate Health, Education and Labor Committee confirmation hearing to be next Secretary of Education on Capitol Hill in Washington, U.S., January 17, 2017. REUTERS/Yuri Gripas

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A Day in Court

A news release from Public Funds for Public Schools:

The Chancery Court for Davidson County will hear oral arguments today in two lawsuits challenging the constitutionality of Tennessee’s private school voucher law, the Education Savings Account (ESA) Pilot Program. The plaintiffs in McEwen v. Lee seek to temporarily halt implementation of the program until the court rules on the constitutionality of the voucher law, which diverts much needed public education funds to pay private school tuition in Davidson and Shelby Counties.

The voucher program was originally slated to take effect in the 2021-2022 school year, but Governor Bill Lee’s administration is planning to issue private school vouchers this fall.

The McEwen plaintiffs are public school parents and community members in Shelby and Davidson Counties. Their lawsuit, filed in March, contends that the voucher law violates several provisions of the Tennessee Constitution, including the “home rule” provision, which prohibits the General Assembly from passing laws that target specific counties without their approval. It also violates the constitution’s Appropriation of Public Moneys provision, governing the proper appropriation of public funds, and its Education and Equal Protection Clauses, which guarantee adequate and equitable educational opportunities to public school students across Tennessee.

“I have five children currently enrolled in Shelby County Schools, and our family has always actively supported Tennessee’s public school system,” said plaintiff Apryle Young. “I know firsthand that my children’s schools are in desperate need of facilities maintenance, counselors and other support staff, textbooks and supplies. They cannot afford to lose more resources.”

The McEwen plaintiffs will argue for a temporary injunction to stop implementation of the voucher program and prevent the state from diverting scarce public education dollars — now at greater risk due to the COVID-19 pandemic — to private schools while the court rules on the constitutionality of the voucher law.

“I am very worried about the effect on my daughter’s school and on all the students in Metro Nashville Public Schools if the state starts handing out vouchers in the next few months,” said plaintiff Roxanne McEwen. “Beginning the private school voucher program this fall will take away funds that are essential to keep our kids learning during this difficult time.”

The McEwen plaintiffs are represented by Education Law Center and the Southern Poverty Law Center, which collaborate on the Public Funds Public Schools (PFPS) campaign to ensure public education funds are used exclusively to maintain, support and strengthen public schools. The plaintiffs are also represented by the American Civil Liberties Union of Tennessee and the pro bono law firm Robbins Geller Rudman & Dowd LLP.

“The state should not be permitted to push ahead with a constitutionally flawed program at the expense of Nashville and Memphis public schools that desperately need more, not less, funding and resources,” said Chris Wood, partner at Robbins Geller Rudman & Dowd LLP. “We are asking the court to temporarily enjoin the voucher program while the judge rules on the numerous constitutional and statutory violations asserted by the plaintiffs.”

The court will also hear oral arguments on several other motions during Wednesday’s hearing. Davidson and Shelby Counties and the Metro Nashville Board of Public Education will argue the summary judgment motion filed in their separate lawsuit challenging the voucher program. In addition, the state and intervenor defendants will argue their motions to dismiss each case.

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Pause

While groups attempting to stop Tennessee’s voucher scheme from being implemented make arguments before a judge, no actual vouchers will be awarded. This according to a story in Chalkbeat.

Chancellor Anne C. Martin is scheduled to hear arguments Wednesday on nine motions that range from the state’s efforts to dismiss both lawsuits to requests by several plaintiffs to declare the 2019 education savings account law unconstitutional. One motion asks for a temporary injunction to keep the program from launching before the new school year.

Martin is expected to rule on several key motions in early May. Her two recent orders noted that the state, which has been accepting applications for the program since March 27, has agreed “not to notify any person that he or she has been approved to receive an Education Savings Account” before May 13.

Governor Bill Lee has made vouchers his primary legislative focus, even working to ensure funding for the scheme was included in his emergency budget adopted before the legislature recessed due to COVID-19.

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DeVos the Destroyer

Education Secretary Betsy DeVos is using the COVID-19 pandemic to further her school privatization agenda. Chalkbeat reports that DeVos is tying the awarding of certain CARES Act funds to a state’s willingness to further school vouchers and virtual schools.

Education Secretary Betsy DeVos will use $180 million in federal coronavirus relief earmarked for the hardest-hit states to create voucher-like grants for parents and to expand virtual education.

State education agencies can apply for federal money by proposing one of three things.

The first is “microgrants” — what some would call “vouchers” — meant to give families more options for remote learning. Those grants could be used to pay for tutoring, summer programs, tuition to a private or public school online program, counseling, test prep, or textbooks, among other things. The state must allow private organizations to provide those services.

The second option is for states to create a statewide virtual school or another program allowing students to access classes that their regular school doesn’t offer. States can either expand an existing program or create one from scratch.

Tennessee is already seeing the proliferation of virtual providers as long-time troublemaker K12, Inc. is facing stiff competition from Pearson to gobble up state dollars.

DeVos wont’ rest, it seems, until her dream of destroying public education has been realized. In a time of pandemic-induced panic and uncertainty, our nation’s Education Secretary is seeking to disrupt the stability and sense of community provided by public schools.

Betsy DeVos testifies before the Senate Health, Education and Labor Committee confirmation hearing to be next Secretary of Education on Capitol Hill in Washington, U.S., January 17, 2017. REUTERS/Yuri Gripas

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Will Vouchers be BLOCKED?

A court in Nashville will hear arguments on Wednesday in cases challenging Gov. Bill Lee’s voucher scheme. Specifically, the plaintiffs are seeking to stop implementation of the plan before the 2020-21 academic year.

Here’s more from a press release:

On Wednesday, April 29, Chancellor Anne C. Martin of the Chancery Court for Davidson County will hear oral arguments in two cases challenging the constitutionality of Tennessee’s Education Savings Account (ESA) Pilot Program, the private school voucher law passed in 2019.

The voucher program diverts scarce public education funding to private schools and applies only to Nashville and Memphis students, in violation of several provisions of the Tennessee Constitution as well as state statutes. At the request of Governor Bill Lee, the program will begin issuing vouchers this fall, a year earlier than the law requires.

The plaintiffs in McEwen v. Lee, who are public school parents and community members from Nashville and Memphis, are seeking a temporary injunction to stop the state from implementing the voucher program until the court rules on the constitutionality of the voucher law. Oral arguments on their motion will be heard on Wednesday at 10 a.m. CT.

Also during Wednesday’s hearing, the Court will hear oral argument for summary judgement in a separate lawsuit challenging the voucher law brought by Davidson and Shelby Counties and the Metro Nashville Board of Public Education.

The hearing will be conducted by video conference and live stream. Members of the public can watch online, though a link will likely not be available until shortly before the hearing starts.

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Charters or Teachers

Nashville school board member Amy Frogge distills the debate about whether to approve new charter school applications during the COVID-19 pandemic down to a simple choice:

“We have a limited pool of funds,” said Nashville board member Amy Frogge, a charter school critic who plans to vote to deny the district’s five applications. “We can choose to pay our teachers or open more charter seats.”

Chalkbeat has more on how Memphis and Nashville are looking at the charter expansion debate in the current fiscal climate.

Meanwhile, Gov. Bill Lee has presented consecutive state budget proposals doubling a charter school slush fund.

While Lee’s emergency “coronavirus” budget ultimately slashed the slush fund this year, he wasted no time in directing millions to his favorite privatization scheme, vouchers. He did this while cutting a planned investment in teacher compensation in half.

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What We Always Knew

A story out of Maury County highlights the education disparities we all know about. It also makes clear the problem of inequality is societal and systemic. It’s something we can conveniently ignore when school is in session because we know then all the kids are being fed and watched and loved. We aren’t forced to see the impacts of wage stagnation, wealth consolidation, and a lack of access to health care.

Here’s more from the Columbia Daily Herald:

“It took this crisis to realize that we are working on two very different dynamics in our districts,” Jennifer Enk, president of the education association, told members of the Maury County Board of Education during an online board meeting this month. “Going forward, this is something that our state and our local [district] really has to look at.”

She said the ongoing stay-at-home order has shown that students’ access to the internet and the devices to access it dramatically differs across the county.

After encouraging the school district to continue offering stipends to local educators who prepare work packets for students, Enk recommends incoming funds from the federal government be used to “equal the playing field” for the county’s students.

Maury County Superintendent of Schools Chris Marczak previously told The Daily Herald that in the northern portion of the county, in the surrounding Spring Hill area, about 10% of the school district’s students live in a home without internet. In Columbia, the county seat located in the center of the region, 24% of the school districts students don’t have internet at home.

It’s not just internet access, of course. There are wide disparities in access housing, food, and health care. A report published last year noted:


High concentrations of poverty, not racial segregation, entirely account for the racial achievement gap in U.S. schools, a new study finds.


The research, released Monday, looked at the achievement gap between white students, who tend to have higher scores, and black and Hispanic students, who tend to have lower scores. Researchers with Stanford University wanted to know whether those gaps are driven by widespread segregation in schools or something else.


They found that the gaps were “completely accounted for” by poverty, with students in high-poverty schools performing worse than those from schools with children from wealthier families.

So, while policymakers create plans focused on how much time kids are in school buildings and how to ensure they get to take tests, the real problems remain ignored.

Meanwhile, privatizing predators are on the prowl, ready to use the COVID-19 pandemic to open the doors to MORE taxpayer resources with little oversight or accountability.

Instead of trying to line the pockets of wealthy edu-profiteers, Tennessee policymakers should move forward with solutions that address the underlying challenges:

Addressing poverty would mean providing access to jobs that pay a living wage as well as ensuring every Tennessean had access to health care. Our state leads the nation in number of people working at the minimum wage. We lead the nation in medical bankruptcies. We continue to refuse Medicaid expansion and most of our elected leaders at the federal level are resisting the push for Medicare for All.

Yes, COVID-19 has highlighted inequality in our schools and beyond. It’s also highlighted the willingness of our top policymakers to simply walk by on the other side while their neighbors suffer.

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The Privatization Pandemic

In recent days, I’ve reported on virtual vultures seeking to profit off of the crisis created by the COVID-19 pandemic. Reports have indicated that both Pearson (Tennessee Connections Academy) and K12, Inc. (Tennessee Virtual Academy) are seeking to extend their money grabs by offering their wares as a “solution” for public schools. Now, a report from the Koch Family Foundation-funded Mercatus Center further illuminates this very real privatization plan.

Instead of attempting to create new virtual platforms, school districts and physical charter schools should create public-private partnerships with virtual learning providers. Some private providers are prepared for this arrangement. K12 Inc. and Connections Academy, two of the nation’s largest K–12 online learning companies, have already created resources to assist districts. K12 Inc. has offered district school students access to the company’s online curriculum, while Connections has posted videos online and scheduled webinars to help traditional classroom teachers adapt instruction.


At least one public virtual school has also announced that it can expand its services. The nation’s largest state-based virtual school, the Florida Virtual School, is offering training for state teachers.8 VirtualSC, South Carolina’s online school, is providing similar services.9 According to local media, Florida Virtual School is prepared to increase its capacity to 400,000 students. If demand continues, the school is considering assigning students to certain times of the day to access content, staggering instruction so that servers are not overloaded.

So, go virtual and give private providers more cash with less oversight. We’ve seen how that worked out in Tennessee’s unfortunate embrace of K12, Inc.:

Take, for example, Tennessee, where K12 Inc. has spent between half a million and $1.1 million hiring lobbyists over several years. One of them was chief of staff to former Tennessee governor and current U.S. Sen. Lamar Alexander, who is the chairman of the education committee in the Senate.

The state passed a virtual school law in 2011 that mirrored model legislation written by The American Legislative Exchange Council, or ALEC, an influential conservative think tank. A few schools opened up, including one run by K12 Inc. through a poor, rural school district in the northeastern part of the state.

Since then, K12’s Tennessee Virtual Academy, whose enrollment at one point ballooned to nearly 2,000 students, has been one of the worst-performing schools in the state ever since, but has so far managed to avoid being shut down.

Privatizers want to turn more of our money — and our kids — over to shady operators like K12, Inc. Also, they want ALL the money. Here’s more from Mercatus on “repurposing” current school budgets to direct additional funds to the privatizing predators:

Lawmakers should also allow districts to repurpose taxpayer resources meant for bus routes, food service, and facility maintenance, to name a few, and use this spending to purchase education services from online providers

But what about those pesky IDEA requirements that protect students with disabilities? Well, Mercatus and the privatizers agree with Tennessee’s own Lamar Alexander that “flexibility” should be offered in this regard. Here, flexibility means students with disabilities lose so for-profit prowlers can win:

While this fact sheet already offered school leaders “discretion” and “significant latitude,” the department appears to have erased any uncertainty on March 21 with another memo that said schools should not fear reprisal for good-faith efforts to move classes online, even for children with special needs. The department said, “To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.”

The privatizers want ALL the money, all the students, and none of the accountability. It’s not a secret. They are saying (and writing) it out loud.

Will Tennessee’s policymakers stand up to the virtual vultures?

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Voucher Leader Jumps Ship

Today, Shelby County Director of Schools Joris Ray announced new additions to his leadership team. Among them, Amity Schuyler, previously the Tennessee Department of Education’s point person on school vouchers. Gov. Bill Lee and his team have been counting on Schuyler to fast-track the state’s voucher scheme.

Here’s the announcement via tweet:

It’s unclear what this means for the future of a voucher program that Lee chose to fund in his emergency budget while cutting a planned investment in public schools.

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