Tennessee Court of Appeals Decision School Vouchers (ESA’S) Unconstitutional

David Seal is a retired Jefferson County educator, as well as a recognized artist and local businessman. 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.

By David Seal


Education Savings Accounts (ESA’s), more commonly known as school vouchers, became law in Tennessee during the 2019 legislative session. Tennessee is one of a handful of states to enact law giving parents school choice, providing an option for their students to escape failing schools. In doing so, the state would issue a debit card to qualified families valued at $7300 to be used for “approved expenses” including payments for tuition at a private school. Proponents of school choice were thrilled; but opponents of the plan lined up to oppose public money going to private institutions. Twenty-five million dollars in new spending was appropriated in the state budget to cover the cost of ESA’s, money that opponents claim would be better spent on cash strapped public schools. The voucher law was carefully crafted to only apply to “priority schools” in Davidson and Shelby Counties, home to the state’s lowest performing schools according to the Tennessee Department of Education. Here is where the rub intensified.

Court Decisions

Davidson and Shelby Counties, plaintiffs in the voucher case, sued for relief in Davidson County Chancery Court, asking that ESA’s be deemed unconstitutional under Article XI, Section 9, Paragraph 2 of the Constitution of the State of Tennessee. Chancellor Anne C. Martin ruled in favor of the plaintiffs. Her decision holds that Tennessee’s school voucher law is unconstitutional under the “home rule” provision of the state constitution. The state promptly appealed the decision to the Tennessee Court of Appeals, which expedited hearing of the case. The Tennessee Court of Appeals, in a 12-page decision delivered by Judge Andy D. Bennett, J., agreed with the lower court affirming its decision. The court reasoned that state and county governments share the responsibility of funding education; and that the ESA law burdened local governments without their consent rendering EAS’s unconstitutional.

The Battle is Not Over

Several organizations and intervenors in the voucher case plan to pursue a resolution in favor of school choice. The state of Tennessee, having invested heavily in the voucher system, is expected to appeal the decision to the state Supreme Court. Two Tennessee families, intervening as defendants, represented by the Institute for Justice, recently announced their plans to appeal to the Tennessee Supreme Court. The institute for Justice, a law firm with a track record of winning school choice lawsuits, successfully represented parents in the landmark U.S. Supreme Court case Espinoza v. Montana decided earlier this year. Espinoza cleared the way for parents to use public money to pay educational expenses at religious institutions. Many other organizations are advocating for school choice, among those are the American Federation of Children, Liberty Justice Center, and the Beacon Center.

The Beacon Center of Tennessee is representing two Nashville families in their pursuit of educational choice for their children. Beacon provided the following statement on the Tennessee Court of Appeals voucher decision.

“While we respect the court’s ruling, we look forward to taking this case to the Tennessee Supreme Court. We are confident the Supreme Court will find that the state’s careful attempt to throw a lifeline to parents stuck in the worst performing schools is in fact constitutional. These families are hurt every day that the status quo remains in place and we hope the Supreme Court will give them the educational options they so desperately need and deserve.” Justin Owen, President and CEO of the Beacon Center