April 28, 2020

NASHVILLE, Tenn. – 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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