Tennessee Supreme Court Agrees to Rehear School Voucher Challenge After Sitting Judge Dies

The Tennessee Supreme Court in Nashville, Tenn., on July 20, 2013. (Thomas R Machnitzki via Wikimedia Commons/GNU FDL)

The Tennessee Supreme Court has agreed to rehear oral arguments two months from now in a challenge to a state school voucher program, after a justice on the panel died before the court could render its judgment in the case.

The rescheduling comes as the U.S. Supreme Court has become increasingly receptive to school choice programs designed to allow poor students to escape failing government-run schools.

The nation’s highest court ruled in Espinoza v. Montana Department of Revenue last year that a state may not exclude families and schools from participating in a student-aid program because of a school’s religious status.

On Dec. 8, the same court heard oral arguments in Carson v. Makin, regarding a Maine law that excludes families from a student aid program if they choose to send their children to religious schools. That program provides tuition assistance for students who don’t have a local public school so they can attend private institutions, as long as the funding isn’t used for religious education, The Epoch Times previously reported. A ruling is expected in the new year.

The case at hand, known as Metropolitan Government of Nashville v. Tennessee Department of Education, deals with the Tennessee Education Savings Account Pilot Program Act of 2019, which provides scholarships to needy families in the Shelby County and Metro Nashville (Davidson County) school districts to place their children in private schools.

The state government takes the position that the Tennessee General Assembly had the power to pass the bill, and that it would help to improve struggling school systems.

The program is the brainchild of Tennessee Gov. Bill Lee, a Republican, and was among his top legislative priorities in 2019. The legislation eked by in the House after its scope was narrowed to include only Shelby and Davidson counties.

Under Tennessee’s Education Savings Account (ESA) program, eligible students assigned to schools in the affected areas are allowed to use state and local Basic Education Program (BEP) funds toward expenses, such as tuition or fees, at participating private schools. The ESA program is covered under the state law known as Public Chapter 506.

“Low-income students deserve the same opportunity as every other kid in this state, and we will need a bold plan that will help level the playing field,” Lee said in March 2019 in his inaugural State of the State address.

“We need to challenge the status quo, increase competition, and not slow down until every student in Tennessee has access to a great education. We’re not going to get big results from our struggling schools by nibbling around the edges. That is why we need education savings accounts in Tennessee this year.”

But Anne C. Martin, a Democrat who is a judge in the Chancery Court of Davidson County, struck down the statute authorizing the program in May 2020, ruling it ran afoul of the “home rule” provisions of the state constitution because it applied only to two counties and didn’t require their input in the matter. In September that year, the state’s Court of Appeals upheld Martin’s decision.

The Tennessee Supreme Court heard the appeal from the ruling in June of this year. Justice Cornelia Clark, who participated in the hearing, died after a brief battle with cancer on Sept. 24 at the age of 71. Clark was first appointed to the court in 2005 and was chief justice from 2010 to 2012.

On Dec. 17, Chief Justice Roger Page issued an order stating that “in light of the untimely death” of Clark, “this Court has concluded that re-argument will aid the resolution of this appeal,” and scheduled the re-argument for Feb. 24, 2022, in Nashville. Page also designated Thomas Frierson, a judge of the Court of Appeals of Tennessee, to participate in the appeal to its conclusion.

Lee and the Metropolitan Government of Nashville didn’t respond to a request by The Epoch Times for comment by press time.