Parents Ask State Court to End Voucher Program

Parents in Nashville and Memphis are asking a state court to end the state’s new voucher program in its infancy. The program began this year after a court lifted an injunction preventing it from going into effect.

A small number of students qualified this year, as the program was greenlighted just weeks before the start of school. The lifting of the injunction did not, however, stop the ongoing lawsuit from parents.

Here’s more from Public Funds for Public Schools:

Today, a panel of judges for the Davidson County Chancery Court heard arguments in two consolidated cases challenging the constitutionality of Tennessee’s private school voucher law, which the state began implementing in August. 

The plaintiffs – Davidson and Shelby County parents and community members – argued that Tennessee’s voucher program illegally diverts taxpayer funds appropriated for public schools in those counties to private schools. They asserted that the program violates the Tennessee Constitution and state law, exacerbates underfunding of public schools, and treats Davidson and Shelby County students and taxpayers differently from their counterparts across the state. 

“My daughter’s public school is wonderful. But it already struggles with funding for textbooks, technology, and enough teachers to keep class sizes down,” said plaintiff Roxanne McEwen, whose child is a student in Metro Nashville Public Schools. “It’s wrong to take money away from our public schools – which serve every child who walks through their doors – when they are already underfunded.” 

Private schools participating in the taxpayer-funded voucher program are not obligated to comply with the academic, accountability, and governance standards that apply to public schools. Unlike public schools, private schools can discriminate against students on the basis of religion, LGBTQ status, and other characteristics, as well as refuse to provide services such as special education for students with disabilities. 
“The state and the other defendants want the court to throw out this case before the plaintiffs have even had a chance to fully air their claims,” said Chris Wood, partner at Robbins Geller Rudman & Dowd. “Our clients have asserted multiple violations of the constitution and state law that the court has not yet heard or decided.” 

Public school parents and community members in Shelby and Davidson Counties filed McEwen v. Lee in 2020. They are represented by the ACLU of Tennessee, Education Law Center, the Southern Poverty Law Center, and Robbins Geller Rudman & Dowd LLP. The McEwen case has been consolidated with Metro Government v. Tennessee Department of Education, another case challenging the voucher law.  

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Of Vouchers and Indictments

Readers may remember a time when hot chicken, sex, and cocaine played a role in securing the passage of voucher legislation in the state.

That was three years ago. So, what happened? Well, as it turns out, the former Speaker of the House (Glen Casada) and his former Chief of Staff (Cade Cothren) have been indicted in a bribery and kickback scandal related to the voucher vote.

NewsChannel5 reports:

According to the indictment, beginning in October 2019, Casada, Cothren, as well as another conspirator engaged in a fraudulent scheme to enrich themselves “by exploiting Casada and the other conspirator’s official positions as legislators to obtain State approval of Phoenix Solutions as a Mailer Program vendor to provide constituent mail services to members of the Tennessee General Assembly.”

This reportedly began after Cothren’s resignation and after Casada stepped down as the Tennessee Speaker of the House.

While the indictment is not specifically around the voucher vote, the conspirators were directly involved in that event as well.

More to come as this process continues.

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What’s the Rush?

Gov. Bill Lee has moved quickly to implement his school voucher scheme as courts have cleared the way for it to start this school year.

So far, though, not many families are expressing serious interest.

The Tennessean reports that as of the first day of school in Memphis and Nashville (the only two districts eligible for vouchers), only 30 applications had been submitted for approval.

As of Monday morning, only 30 families had submitted an actual application, according to information from Department of Education spokesperson Brian Blackley. The department received applications from 40 schools, he said, noting that application process has closed.

While Lee has claimed that several thousand families want the vouchers, that has not yet been borne out in the application process.

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$26 Million Harm

Voucher case proceeds despite imminent harm to Memphis, Nashville

A three-judge panel on Friday declined to stop Gov. Bill Lee’s rushed implementation of a school voucher scheme in Memphis and Nashville.

Chalkbeat reports that lawyers for parents opposing the voucher plan had asked the court to halt implementation while their case against vouchers proceeds.

Specifically, lawyers noted that if implementation proceeds, Memphis and Nashville combined could lose up to $26 million in funding this year despite no attendant reduction in costs to operate.

“Nothing requires the state defendants to push this forward at a rocket’s pace after the injunction was lifted, just before the school year started,” said Allison Bussell, Metro Nashville’s associate law director, representing the two local governments.

She argued that allowing the program to start will cause irreparable harm to both districts, which she said stand to lose $26 million this school year if 3,000 students shift from public to private schools — while the districts must maintain and staff the same number of schools. 

A recent article in The Hechinger Report noted that vouchers have not been shown to improve student achievement, and in fact, have in some cases been shown to actually be harmful.

Vouchers are dangerous to American education. They promise an all-too-simple solution to tough problems like unequal access to high-quality schools, segregation and even school safety. In small doses, years ago, vouchers seemed like they might work, but as more states have created more and larger voucher programs, experts like me have learned enough to say that these programs on balance can severely hinder academic growth — especially for vulnerable kids.

So, vouchers not only cost local districts significant money, but they also harm the very students they are intended to help. Nevertheless, Gov. Lee and his allies are persisting with this perilous plan.

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Disproportionate Harm

The plaintiffs in one of the lawsuits against the State of Tennessee and Gov. Bill Lee regarding Lee’s school voucher scheme are again asking the courts to grant an injunction and prevent implementation of the plan.

A previous injunction was lifted and Lee announced his Department of Education would move quickly to usher vouchers in to Memphis and Nashville this school year.

Here’s more from Public Funds for Public Schools via a press release:

Following Tennessee Governor Bill Lee’s announcement that the state immediately will begin implementing its controversial private school voucher program for the school year starting in just a few weeks, public school parents and community members in the targeted counties are going back to court to stop this sudden and unprecedented rollout.

The plaintiffs in McEwen v. Lee, a pending 2020 lawsuit filed by Shelby and Davidson County residents that challenges the constitutionality of Tennessee’s Education Savings Account (ESA) voucher law, filed an urgent motion Friday asking the Davidson County Chancery Court to block the state from rolling out vouchers for the 2022-2023 school year.

“This unconstitutional program will drain resources from our public schools, and our lawsuit challenging it has not yet been decided,” said plaintiff Roxanne McEwen, whose child is a student in Metro Nashville Public Schools. “Rushing to implement the voucher program before the court has spoken will only create needless chaos for our public schools and for Tennessee families.”

Friday’s motion explains the immediate and irreparable harm that would result from the state’s extremely rushed plan to hand out vouchers for the coming school year. Disbursing those funds, which are drawn from public school district budgets, would throw public schools into chaos weeks before the school year begins. And handing out vouchers that could be declared unconstitutional shortly thereafter would leave families that used them to enroll in private schools mired in uncertainty.

“The state cannot be permitted to recklessly barrel ahead with an unconstitutional 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 again asking the court to enjoin the voucher program while the judges rule on the numerous constitutional and statutory violations asserted by the plaintiffs.”

This is the second time the McEwen plaintiffs have called on the chancery court to halt implementation of the voucher program before the state diverts taxpayer funds to unaccountable private schools. In 2020, the chancery court ruled in a companion case challenging the voucher law, Metro Government v. Tennessee Department of Education, that it violated the Home Rule provision of the Tennessee Constitution by targeting only Shelby and Davidson Counties without their local approval and prohibited the state from starting the program.

The Tennessee Court of Appeals upheld that ruling, but the state Supreme Court reversed it earlier this year in a split decision, sending the case back to the chancery court. The chancery court lifted its 2020 injunction of the voucher law on July 13 as a result of the Supreme Court decision. The state initially told the court that it had not decided on a course of action, but Governor Lee released a statement just hours later declaring that implementation would proceed immediately.

The plaintiffs in McEwen v. Lee are represented by the law firm Robbins Geller Rudman & Dowd LLP, the ACLU of Tennessee, the Southern Poverty Law Center, and Education Law Center. The Southern Poverty Law Center and Education Law Center collaborate on the national Public Funds Public Schools (PFPS) campaign.

“There are numerous unresolved legal claims in both the McEwen and Metro Government lawsuits,” said Jessica Levin, senior attorney at Education Law Center and director of PFPS. “The temporary injunction motion filed by the McEwen plaintiffs on Friday focuses on their claim that the voucher law violates the Education Clause of the Tennessee Constitution – which requires the state to provide education solely through a system of public schools – by funding private schools outside that system.”

Private schools participating in the voucher program are not obligated to comply with the academic, accountability, and governance standards that apply to public schools. And unlike public schools, they can discriminate against students on the basis of religion, LGBTQ+ status, and other characteristics, as well as refuse to provide services such as special education for students with disabilities.

“Defunding public schools through voucher schemes like this one also disproportionately harms Black and brown children and children experiencing poverty, who have been overrepresented in public schools since private segregation academies were first funded by segregationist lawmakers across the South,” explained Bacardi Jackson, interim deputy legal director for the Southern Poverty Law Center. “Children with the greatest needs, who are welcomed and served by our public schools, are left with fewer resources when the state acts to deplete the funds intended to educate all children. So not only is this law unconstitutional, it funds discrimination, and it is racially and economically unjust.”

“Taking money away from already underfunded public school districts and sending taxpayer dollars to private schools, many of which are religious, hurts Tennessee students,” said Lindsay Kee, interim director of the ACLU of Tennessee. “We will continue to stand with public school parents and students to fight this unconstitutional program until it is struck down for good.”

More information about McEwen v. Lee is available here.

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Flat-Out Wrong

That’s how Bruce VanWyngarden describes Gov. Bill Lee’s school voucher scheme. Yes, the very same scheme Lee is rushing to get up and running THIS school year.

Here’s VanWyngarden in the Memphis Flyer:

Which is why every human being in Tennessee should be absolutely outraged at Governor Bill Lee, who is relentlessly fostering the destruction of our public schools via a voucher system in which parents play the middleman between our state treasury and private schools to the tune of $7,000 per family. It’s flat-out wrong, and it’s using money that rightfully should be going to public schools. If people want to send their children to private schools, let them have at it, just don’t ask the taxpayers to cover the note.

He then goes on to detail the current Hillsdale controversy and note that Lee is selling our public schools to private entities with a very clear agenda.

Reports suggest voucher opponents are making one more attempt in court to stop the “rushed” implementation of the voucher program this year.

Whether or not they succeed, VanWyngarden is right: Vouchers are wrong for Tennessee.

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NPEF Opposes Voucher Program

Amid news that Gov. Bill Lee’s office and Department of Education plan to begin a school voucher program in Memphis and Nashville for this school year (2022-23) following the lifting of an injunction that had been blocking the scheme, the Nashville Public Education Foundation (NPEF) issued a statement expressing opposition to Lee’s move.

Here’s the statement:

Governor Bill Lee announced yesterday that the Tennessee Education Savings Account (ESA) program will enroll students for the upcoming school year in Davidson and Shelby counties.The Nashville Public Education Foundation (NPEF) opposes this decision and the ESA program. While NPEF supports high-quality school options for all students in Nashville, the foundation believes public dollars should stay with public schools. In addition, research suggests conflicting and inconclusive evidence on the effectiveness of voucher programs on academic achievement for students.  NPEF will continue to support Nashville students and Metro Nashville Public Schools to create a public system of education where all students can thrive.
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An Assault on Public Schools

The Network for Public Education – a nationwide coalition of groups fighting to defend public schools – issued a statement today in light of the U.S. Supreme Court’s ruling allowing public funds to be used for private, religious schools.

Here is that statement in full:

The ruling of the U.S. Supreme Court in Carson v. Makin forces taxpayers to fund religious education in states with school choice programs, a radical departure from American values and traditions. With this decision, the Court eradicated the separation between church and state when it comes to public funding for education, opening the door to future decisions that would further mandate the public funding of religious education. Prior to the ruling, states could fund religious education but were not obliged to do so. As Justice Breyer noted in his dissent, “What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools?”

The implications of the Court’s wrong-headed decision are enormous and will certainly be seized upon by radical school privatization advocates. Privatizers have focused on capturing state legislatures and securing judicial appointments to ensure their small minority can bend public policy against high-quality and popular public schools, and today’s ruling further undermines the ability of Americans to protect public education funding.

Students, families, and taxpayers have regularly been saved from problematic, unaccountable, and fraudulent voucher programs through lawsuits citing state constitutional provisions that prohibit direct government aid to educational institutions affiliated with religious organizations. The U.S. Supreme Court has demolished those protections and this will lead to additional voucher programs that will siphon taxpayer dollars from public schools.

Although this case focused on a voucher program, the ruling also opens the door to allow religious institutions to overtly run charter schools, which also have their own long history of fraud, low-quality staff, poor academic performance, and general mismanagement. Given that charters are run by private boards, similar to the boards that run private schools, this precedent paves the way for later decisions for religious charters.

Perhaps most disturbing, some religious schools have a long history of engaging in reprehensible discrimination in both admissions and hiring and in many cases failing to provide adequate and science-based academic instruction. This decision will embolden the creation of more schools, that receive taxpayer funding, to engage in discriminatory practices in the name of religion.

Commenting on the decision, NPE President, Diane Ravitch, stated, “Maine and Vermont should only include the option of public schools in their town tuitioning programs, thus limiting public funding to public schools. Other states that subsidize any private schools should stop doing so. The path on which SCOTUS has embarked will end in publicly funded schools for every religion, of which there are scores. It threatens the principle of the common school, supported by the public and open to all children.”

Carson v. Makin highlights the depth of the current assault on our public schools by a highly motivated and organized radical minority. Even with today’s devastating ruling, their assault will continue to push for even more until all public schools are closed, and every student is left behind.

We will continue our advocacy efforts on behalf of democratically governed public schools opened to all. Public funds are for public schools.


This case has clear implications for Tennessee and Gov. Bill Lee’s plans to privatize public schools:

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Vouchers Strike Back?

On the surface, it would seem Gov. Bill Lee and his commitment to a statewide voucher scheme for Tennessee scored a huge victory yesterday when the Tennessee Supreme Court ruled in a 3-2 decision that Lee’s ESA voucher plan does NOT violate the “Home Rule” Amendment of the Tennessee Constitution.

Here’s the deal: While the loss on the Home Rule Amendment is a definite blow to public school advocates, there are MORE issues at play here.

Here’s what a press release from the Tennessee Administrative Office of the Courts has to say about yesterday’s ruling:

The Tennessee Supreme Court granted Defendants’ applications for permission to appeal. Because it is an interlocutory appeal, the issues before the Court were limited to the constitutionality of the ESA Act under the Home Rule Amendment and Plaintiffs’ standing to bring that challenge. The Supreme Court agreed with both the trial court and the Court of Appeals that Plaintiffs Metro and Shelby County had standing to bring their Home Rule Amendment Claim. However, the Supreme Court, after reviewing the applicable constitutional language, held that the ESA Act is not rendered unconstitutional by the Home Rule Amendment because the Act is not “applicable to” the Plaintiff counties for purposes of the Amendment. The majority concluded that the ESA Act is not applicable to the Plaintiff counties because the Act regulates or governs the conduct of the local education agencies and not the counties. Thus, the Act does not violate the Home Rule Amendment. The Supreme Court therefore affirmed, in part, and reversed, in part, the judgment of the Court of Appeals and remanded the case to the trial court for the dismissal of the Home Rule Amendment claim and for consideration of Plaintiffs’ remaining claims.

“Consideration of remaining claims.”

There.

So, the plaintiffs lost on the Home Rule Amendment in a narrow, 3-2 ruling. While I may not agree with that interpretation of Home Rule, as it relates to vouchers, this is not a “death blow” per se.

There are “other issues.” The plaintiffs will now have to revisit their case as it relates to other claims relative to the harms or potential harms of vouchers.

This ruling does NOT mean that Bill Lee and Penny Schwinn can just go all out on vouchers.

Instead, it means that lower courts will hear evidence on claims related to vouchers.

Was the Home Rule Amendment the home run in terms of defeating vouchers? Yes! Seeing vouchers as unconstitutional in this light was the easiest, fastest way to defeat a voucher scheme.

Was it the ONLY way that vouchers would lose in court? Not at all.

Remember, the ESA scheme as concocted in 2019, applies only to Memphis and Nashville. There are a range of legitimate claims that could serve to halt the negative impact of a voucher scheme.

A trial court may now have to hear evidence and make a decision on those claims.

Bottom line: This is NOT a green light for Lee’s voucher plan.

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The Big Voucher Payback

Remember when then-House Speaker Glen Casada “enticed” members to vote for Gov. Bill Lee’s school voucher scheme? Remember how the FBI was (and still is) interested in Casada and others for possible bribes in order to pass the bill by a single vote?

Remember the ensuing scandal that led to Casada’s resignation as House Speaker?

Well, it turns out dark money groups like Tennesseans for Student Success are all in on a big payback for Casada’s “leadership.” You see, Casada is now running for the six-figure job of Williamson County Clerk. Here’s what Phil Williams reports TSS is doing for Casada in that race:

Oh, and in case you’re wondering, Tennesseans for Student Success is pretty shady:

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