Ep. 308: Legal Updates – March 2022

March 10, 2022

In this update, we hear about progress being made in litigation in the states of Tennessee and Kentucky.

Jordan Zachary: Hello and welcome to another episode of our EdChoice Chats. We are joined today by Leslie Hiner, our VP of Legal Affairs, and Lauren Hodge, our director of Legal Affairs, and I’m Jordan Zachary, one of our state relations directors. It’s been a busy time in the litigation world for both of you so I was hoping we could take a little time to discuss two states that have been on our mind, both Tennessee and Kentucky. I want to start out by moving the conversation towards Tennessee where both of you can update us on what’s been happening in that wonderful state. First, I want to start with Leslie. Can you give us a little bit of the current case status and what you think our listeners should know about the litigation in Tennessee?

Leslie Hiner: Yes. Thanks, Jordan. Tennessee is a very important case because Tennessee folks have worked for such a very long time to pass a voucher in that state. Brian Kelsey there, he has many sleepless nights to prove how long and how hard he’s worked on getting the legislation passed for kids in his state. What passed was what they call an ESA pilot program, Education Savings Account Pilot program which is, it’s a voucher where the students could use that funding for a variety of purposes in addition to tuition so it could also be used for tutoring and that sort of thing. Now, the bill has some limitation. It’s limited to children who are living in primarily Memphis and Nashville, and so what we found is that the school boards and the counties there around Memphis and Nashville, they brought this litigation to stop the program.

Now, what happened is, and this part is important. What happened in the very beginning is that there were two different lawsuits that were brought and the people suing brought in everything but the kitchen sink to argue against the program so the judge at the Chancery Court, which is otherwise known as the trial court level, made a decision that… She heard all the arguments in the case, in an eight hour long Zoom meeting no less, but she then determined that it would be wise to separate out one of the issues and allow that one issue to go up to be argued before the higher courts in Tennessee but to hold back all the other issues. The issue that went up before the appellate court and is now pending before the State Supreme Court is the question of home rule, which is very simply this. The Tennessee Constitution says that the legislature can’t enact special legislation that’s limited to a county, but that’s really what the question is.

Does a county mean one or does it mean two or could it mean three counties? It seems like an odd point but it’s actually a very important point when you’re looking at the Tennessee Constitution so that is the question that’s pending. Now, another issue before the Tennessee Supreme Court is more procedural in nature. This case has lingered for quite a while. Part of the reason for that is that, sadly, there is an untimely death of one of the Supreme Court Justices so filling that vacancy always takes a little while. The governor filled the vacancy. However, then that judge recused herself because she had worked previously for the attorney general’s office and so she was concerned about any possible conflict of interest in the case.

Then another judge had to be appointed so they brought up Judge Frierson from the Tennessee Court of Appeals to hear this case and they did oral arguments again here in just the last couple weeks. All this to say that we are expecting a ruling out of the Tennessee Supreme Court sooner than later because there are five justices. Four of these justices have had more than ample time to consider this case and the issue involved so it really just comes down to the one judge getting up to speed on this case. We’re hoping to see a decision soon in this case, which is why we wanted to talk to you about it today so that when the decision comes down you can understand what it means.

Lauren Hodge: Okay, Leslie, so let’s unpack that because, first of all, for any of our legal eagles out there, good Lord, there is some procedural history to this case. As you are going through the timeline, Leslie, when I really stop and think about Tennessee’s program, I pair it up in my mind with the COVID pandemic starting. We are now in calendar year three of that and so, as I kind of think through, this case has lingered with some interesting kind of procedural history. Couple of questions that I think we want to kind of flush out here. As you noted, we have five judges who are going to be looking at this and four of them have already heard the arguments once. They’ve been briefed on this, we have a new judge that’s coming up being especially appointed for this case due to the newest justice’s recusal. Leslie, what happens if the advocates for this program prevail at the judiciary? Is that it, game over, program goes into effect, we’re done?

Leslie Hiner: You’re asking if the advocates, which would be those who like this program, if they prevail. That would mean that then the Tennessee Supreme Court would rule that the ESA in Tennessee does not violate the home rule provision of the Tennessee Constitution.

Lauren Hodge: What happens to the rest of those arguments that were made way bad when this all began at the trial court level?

Leslie Hiner: Well, you asked the million dollar question of the day. At the trial court level, the judge held back the rest of the arguments so they’re still sitting there waiting to be argued. In the event that we win, the court says there’s no violation of home rule provision, then the case will need to go back to that Chancery Court, to the trial court level for consideration of the remaining issues. Now, the remaining issues are the usual ones that we see in these cases, violation of the uniformity clause or equal protection.

There’s nothing out of the ordinary from what we normally see in these cases but those issues will need to be considered, again, hopefully judiciously and quickly. But yeah, don’t hold your breath is what I would say because that really will depend on the court’s discretion.

Lauren Hodge: For all of those families who are hoping to utilize this program, even if the case were to prevail and the court were to find there was no violation of Tennessee’s home rule, that does mean there could still be a waiting period for those families, is that right, Leslie?

Leslie Hiner: There could be, and this is where timing means everything. The timing issue would be this, that let’s say if we get this decision out of the Supreme Court here quickly in the next couple weeks, if the Chancery Court would act swiftly and take up the case, again, because the Chancery Court heard the arguments on those other issues, there is some hope that that court would dispense of the case pretty quickly. In the best of all worlds, then I’m sure that the lawyers would ask the Supreme Court to then bypass the appellate court, take the rest of those issues up directly, and rule on them just as quickly as possible.

Here we are in March. It’s asking a lot to think that perhaps we could have this resolved before school starts in the fall but it’s not impossible so the outcome of case will be, boy, we’ll all be sitting on pins and needles waiting for this. I can assure you that if this case then does go back to the lower court to adjudicate the remaining issues, the lawyers who are for this new ESA program will really act swiftly to do everything in their power to move this case along just as quickly as possible. There’s so many families in Tennessee who have been waiting for years to have this opportunity. I think the momentum to move this forward will definitely be on our side.

Lauren Hodge: Leslie, if the Tennessee Supreme Court holds that the new ESA program does violate the home rule provision, what happens to the program then?

Leslie Hiner: Well, I wish you didn’t have to ask that question. If the court rules that the program violates the home rule provision of the constitution, then it’s unconstitutional. Then it would be incumbent upon the legislature of the state of Tennessee to get with it in a hurry and act just as swiftly as possible to enact the program again. This time I would strongly suggest that instead of limiting it to just two geographic areas, a new program, if they need to do this, should be modeled after the West Virginia Hope Scholarship Program which applies to all the children in the state. That truly is the way of the future and the way to go for all kids.

Lauren Hodge: If I’m understanding correctly, Leslie, one of the surest ways to avoid this alleged violation of home rule would be to follow Milton Friedman’s vision, right? For every single child to have every single option and every single dollar flow with them, and so potentially there wouldn’t be this issue in Tennessee if the program was universal and available to all counties. Is that a fair statement?

Leslie Hiner: I think that’s a fair statement, for sure. I think it’s also fair to say, much like we saw some years ago in Wisconsin when the Milwaukee Program, Milwaukee Voucher Program was first enacted, the same complaint was raised that, “Oh, this violates their home rule provision because it was just limited to Milwaukee.” But the court in Wisconsin was very clear to say, “Wait a minute. None of this happens in a vacuum. These legislators are not enacting a program thinking that, oh, if it really works we won’t make it available to anybody else. That wasn’t it at all. The whole purpose was let’s make this program work first and foremost where the need is the greatest and if it works for these kids then absolutely we need to broaden this to all children in the state.”

The legislators in Tennessee are no different than the legislators in Wisconsin. Now legislators, when they enact these school choice programs, they are very simply looking around the neighborhood, looking at their districts, hearing their constituents and what they need for their children, and then they act. That’s all this is about. So we’re hopeful in Tennessee that after all the work that they’ve put in to making this happen for their kids, that they’ll have a good result this year.

Lauren Hodge: Well, fingers crossed. It’s been a long path for them so we’ll have to see what happens next.

Leslie Hiner: That’s right.

Jordan Zachary: As we finish up with the legal podcast today, we’re going to briefly touch base about Kentucky and the Council for Better Education vs Johnson, which is a case over the nation’s first tax credit funded ESA. Recently, we have caught word that the case will be moving directly from the trial court to the Supreme Court and in doing so it’ll be bypassing the appellate court. Going forward, there’s still a lot of questions around this case, issues like uniformity and also issues as whether or not a tax credit program would violate the state’s no aid to private education rule. As we know more about the case, we’ll keep you updated and be sure to check back here for our future podcast.