VITAL POLICY – Tennessee Supreme Court, School Voucher Law Upheld as Constitutional

Changes on the horizon for education in Tennessee

Tennessee legislators enacted the “Tennessee Education Savings Account Pilot Program“, commonly known as “school vouchers” on May 24, 2019, legislation that was touted as a way-out for students zoned to attend failing schools. After weeks of negotiating, compromising, and even arm-twisting, the Tennessee General Assembly narrowly approved a scaled-down version of Governor Lee’s signature education plan, resulting in a heavily amended bill that excluded most of the state. Students zoned for certain target schools in Memphis and Nashville, whose families meet income criteria, were the only ones left eligible for school vouchers.

The city governments and school boards of Memphis and Nashville wanted no part of school vouchers.

Metropolitan Government of Nashville and Davidson County, Shelby County Government, and Metropolitan Nashville Board of Public Education filed a lawsuit in Davidson County Chancery Court to stop school vouchers, alleging that Public Chapter 506 violated the “home rule” provision of the Tennessee Constitution.

A legal rollercoaster ensued.

Davidson County Chancellor Anne C. Martin ruled that Tennessee’s school voucher law violated the “home rule” provision of the Tennessee Constitution. The Tennessee Court of Appeals, in an expedited hearing of the case on appeal, agreed.

The State of Tennessee, Intervening Defendants, and others appealed the voucher case to the Tennessee Supreme Court arguing that “home rule” applies only to county and city governments, not their subsidiary education departments. The Tennessee Supreme Court agreed, clearing a path for school vouchers in Shelby and Davidson Counties.

Institute for Justice, representing Intervening Defendants

With this ruling, thousands of Tennessee parents will get the chance to choose the school that works best for their children,” said Institute for Justice Educational Choice Attorney David Hodges. “We are delighted that the Court rejected the argument that the Home Rule Amendment empowers a school district to stand in the way of a student’s future.”

Beacon Center of Tennessee, Advocate for School Choice

We are so pleased that the Tennessee Supreme Court affirmed today what we have always known: the ESA law is not a violation of the Tennessee Constitution’s Home Rule Amendment. We are fully confident after this decision that families in Nashville and Memphis will finally get the choice opportunities that they deserve.”

Beacon Center of Tennessee President and CEO Justin Owen.

As the ESA school voucher law worked its way through the committee process in 2019, numerous Tennessee legislators lobbied to keep vouchers out of their own district schools.

New Research on School Vouchers

Critics of school vouchers contend that money and resources would be subtracted from public school districts. New research conducted by the Beacon Center of Tennessee in 2020 proves otherwise, research linked below under “References”.

Where does Tennessee go from here with school vouchers?

With the Espinoza vs. Montana decision in 2020, the United States Supreme Court cleared the way for public funds to be used at religious affiliated schools. Private religious schools are likely to join a long list of public interest groups and concerned parents to lobby for expanding school vouchers in the state of Tennessee.

Americans for Prosperity of Tennessee issued the following statement for this article.

AFP supports complete educational freedom – a system where families can pursue the best education opportunities for their children. Since per-pupil education funding reform passed this year TN is well positioned to be the next state to provide more school choice.

We passed an open-enrollment bill last year allowing kids to go to other schools in the same district if open seats are available and parents provide transportation. It’s important to note that this is already law for the upcoming school year. Every district must publish the number of open seats by grade, allow at least a 14-day transfer period and consider any child that transfers to be part of the school through the final grade offered at that school. This provides stability for families that previous open enrollment policies refused to address. If more students apply than open seats are available, then schools must host a lottery to see who gets the desired seats; this is the only way to prevent cherry-picking or athletic recruitment.

Ideally, we see state-wide open-enrollment as the next step – allowing families a choice of public schools as a minimum. School zones should become merely “transportation zones” – where the buses would pick up and drop off students. We will support legislation next year to give families that freedom.

We’ve worked on ESAs for special needs students and failing schools too. We think this is especially important when a child’s educational needs are not being met within their zoned school. But, of course we’d like to go further…that will require a policy majority in the legislature that is willing to trust families with their children’s education decisions and their own tax dollars.

We look forward to attaining a policy majority of freedom-loving legislators who believe parents are best suited to make decisions for their children instead of the government. AFP will support and would love to see the day when every family has equal access to educational opportunities.” Tori Venable, State Director Americans for Prosperity – Tennessee

Many Tennessee legislators are on the record as supporting school choice. In the wake of the recent court decisions, it remains to be seen how these legislators will react to the pressure that will be exerted by parents, private schools, and child advocacy groups that demand promises be kept on school choice. One thing is certain, ESA expansion will be a hot topic in future legislative sessions.


Text of Tennessee Education Savings Account (school voucher) Law: pc0506.pdf (

Documents and media releases on the intervenor defendants: Tennessee School Choice – Institute for Justice (

Espinoza vs. Montana SCOTUS Opinion: 18-1195 Espinoza v. Montana Dept. of Revenue (06/30/2020) (

Text of Tennessee Supreme Court Opinion: metro.government.opn_.pdf (

Limiting the scope of school vouchers in Tennessee:

Representative Andrew E. Farmer Leads Successful Negotiations With Governor To Protect District 17 From ESA Legislation | The Jefferson County Post

Beacon Center of Tennessee ESA Research: Evaluating ESAs in the Volunteer State (

Tennessee Attorney General Statement: Tennessee Supreme Court’s Ruling on the Education Savings Account Program (ESA) | The Jefferson County Post

Jefferson County Post Article – ESA Background

Tennessee Court of Appeals Decision School Vouchers (ESA’S) Unconstitutional | The Jefferson County Post

David Seal is a retired Jefferson County educator, recognized artist, local businessman, and current Chairman of the Jefferson County Republican Party. He has also served Jefferson County as a County Commissioner and is a lobbyist for the people on issues such as eminent domain, property rights, education, and broadband accessibility on the state level.