Shelby and Davidson counties’ effort to overturn Gov. Bill Lee’s education savings account program continued Wednesday as a Nashville judge considered various requests to rule or dismiss the lawsuit.
Under the law passed last year by the Republican-led House and Senate, qualifying students in Nashville and Shelby counties would get more than $7,000 in public-school money to spend on private-school tuition and related costs. Most lawmakers from Shelby and Davidson opposed the bill from the start, arguing that it unfairly targeted the state’s two largest school systems.
And Metro Nashville Legal Director Bob Cooper, a former state attorney general, made that argument and others while representing the two governments in the daylong video conference meeting.
“The education savings account act imposes a burden on two counties and only two counties,” Cooper said. “It’s an infringement on their sovereignty.”
Metro attorneys also argued that the lawmakers’ intent was not to benefit students in low-performing schools because the program is not targeted at low-performing schools, but rather counties with a certain number of low-performing schools. So, Metro pointed out, students at high-performing schools in Davidson and Shelby counties could participate while students at low-performing schools in other counties could not.
But Stephanie Bergmeyer, an attorney for the state, said that was irrelevant and suggested that the bill’s authors had been as precise in targeting as possible.
Bergmeyer further argued both that the local governments do not have standing to sue because the state is responsible for education policy and that local governments would not experience any economic harm because of the bill. At issue was the backfill grants offered as part of the bill, through which Nashville and Shelby County schools would be granted school improvement grants for the amount of funding lost when a student takes his or her public-school funding to a private school. Those grants would only be available for the first three years of a student’s participation in the program.
Lawyers for various intervenors, including parents opposed to and supportive of the program, also spoke during the hearing. Brian Kelsey, a Republican state senator who represents plaintiffs in school-choice cases, argued that the school districts would enjoy a “windfall” because of the school-improvement grants.
Metro and others seeking to put a halt to the program pointed out that lawmakers confirmed on the floor that the intent of the bill was never to expand beyond Nashville and Shelby County as evidence that it was not a true “pilot” program and therefore unfairly targeted the communities. They also pointed to statements from Hamilton County Republican Rep. Patsy Hazlewood, who said at the time that she would only support the bill if it excluded her county, which was originally part of the planned program.
But Bergmeyer and Kelsey warned against cherrypicking legislator statements to undermine the written intent of the law, which does not mention Nashville or Shelby County by name. The individual statements do not “accurately express the intent of the full General Assembly,” Bergmeyer said.
Lee positioned the education savings account as a top legislative priority during his first year in office, but it was not a simple undertaking. The vast majority of Democrats and a group of skeptical Republicans opposed the bill throughout the process, and the proposal’s sponsors only attracted enough votes to pass after it was amended repeatedly to include fewer and fewer counties and lower income limits for qualified families.
The vote on the bill also drew scrutiny, as then-House Speaker Glen Casada held the vote open for more than half an hour in order to find a member who would switch his or her vote to put the bill over the majority threshold. He ultimately found that vote by promising Knoxville Republican Jason Zachary that the Senate would exclude Knox County from its version of the bill. Members later said Casada offered them incentives, including a promotion in the Tennessee National Guard, to switch their votes.
Davidson County Chancellor Anne Martin said she would rule on the motions to dismiss or to enjoin the voucher plan’s implementation within a week, a timeline expedited by the stalled application process for next school year.
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