McEwen, et al. v. Lee, et al.

Tennessee’s voucher program threatened to siphon hundreds of millions of tax dollars from Nashville and Memphis public schools to private schools, raising the specter of more budget cuts for already underfunded public schools. The SPLC and its allies filed a lawsuit in state court challenging the program as an unconstitutional diversion of public education funding.

The Tennessee Education Savings Account (ESA) violates public school students’ rights to the adequate and equitable educational opportunities guaranteed under the Tennessee Constitution, according to the lawsuit filed in the Chancery Court for Davidson County. The lawsuit also charges that the voucher law violates the constitution’s “Home Rule” provision, which prohibits the Legislature from passing laws that apply only to certain counties – in this instance, Shelby and Davidson counties – without getting local approval.

The Tennessee voucher program would take away more than $7,500 per student – or over $375 million in the first five years – from funds appropriated by the General Assembly to maintain and support the Metro Nashville Public Schools and Shelby County (Memphis) Schools. The underfunded school districts would face more budget cuts for educators, support staff and other essential resources, the lawsuit states.

The voucher law passed by a single vote in May 2019, over the objections of legislators from Shelby and Davidson counties, as well as others. At the time the lawsuit was filed in 2020, the law could take effect as early as the 2020-21 school year.

The complaint highlights numerous ways in which private schools receiving public funds are not held to the same standards as Tennessee public schools, in violation of the state constitution’s requirement of a single system of public education. Private schools do not have to adhere to the numerous academic, accountability and governance standards that public schools must meet.

They can discriminate against students on the basis of religion, LGBTQ status, disability, income level and other characteristics. And they are not required to provide special education services to students with disabilities.

The voucher law also violates the Tennessee Constitution’s requirement that the General Assembly appropriate first-year funding for each law it passes. No money was appropriated for the voucher law, and hearings have revealed that the Tennessee Department of Education used funds from an unrelated program to pay over $1 million to a private company for administration of the voucher program.

In July 2022, following Tennessee Gov. Bill Lee’s announcement that the state would begin implementing the voucher program for the upcoming school year, the plaintiffs filed an urgent motion asking the court to block the action. The motion contended that disbursal of voucher funds would throw public schools into chaos weeks before the school year begins and the fact that the vouchers could be declared unconstitutional shortly thereafter would leave families that used them to enroll in private schools mired in uncertainty.