Victory for Parents in the Volunteer State

Arif Panju
Arif Panju  ·  July 26, 2022

When it comes to defending educational choice, IJ fights on multiple fronts. So at the same time IJ was setting major constitutional precedent at the U.S. Supreme Court (see Carson v. Makin), we were also fighting for choice before state supreme courts. And our most recent victory, before the Tennessee Supreme Court, is a perfect example of the value that IJ brings when we intervene in educational choice lawsuits on behalf of families. 

The fight in Tennessee began two years ago, when IJ entered two lawsuits to defend the Tennessee Education Savings Account (ESA) Pilot Program Act against a basket of legal claims. Readers may remember that Tennessee enacted the ESA program in May 2019, giving IJ clients Natu Bah, Builguissa Diallo, Star Brumfield, and thousands of families like theirs a lifeline—scholarships worth up to $7,300 for low- and middle-income families in Shelby County and Metro Nashville. Families can use these scholarships for a wide array of educational expenses, including private school tuition. 

Unfortunately for these families, the trial court seized on the lead claim in both cases challenging the ESA law, invoking the Tennessee Constitution’s Home Rule provision. The court reasoned that because the ESA program is available only to students assigned to school districts in two counties, and those counties did not approve the program after it was passed by the state Legislature, it violates the counties’ home rule authority. The court halted the program as parents were submitting applications―and the intermediate appellate court agreed.

Making the Tennessee Constitution’s Home Rule provision sound like something resembling plain English is no easy task. At its core, a county’s home rule authority concerns power. Shelby County and Metro Nashville claimed the home rule power to extinguish the only education benefit that gave children from low-income families a lifeline to escape two of this country’s worst-performing school districts. But no such power exists.  

That’s where IJ’s unique contribution to educational choice lawsuits comes in. Because no matter how strongly the government feels about a school choice program, it will never have the same interest in defending that program as parents and their children. And that difference can have a major effect on litigation strategy and the arguments the parties put before the court. 

So it was in Tennessee. As intervenors defending the program, IJ did not follow the state’s lead, which focused on whether the plaintiffs had the right to sue. Rather, IJ centered the justices’ attention on the plain text of the state constitution’s Home Rule provision and argued it presented the clearest path to reversing the lower courts and reinstating the ESA program. And the Tennessee Supreme Court agreed: The high court affirmatively embraced the legal theory that IJ advanced and reversed the lower courts.

Tennessee’s ESA program will remain the go-to educational option for thousands of Tennessee families of modest means assigned to failing schools, and it’s all thanks to three moms who joined with IJ to fight for their children’s education. And as the case returns to the trial court on the remaining claims, it is those moms—Natu, Builguissa, and Star—who will continue to lead the way in defending Tennessee’s ESA program in court, following in the footsteps of so many other parents who have teamed up with IJ to defend choice for more than three decades.

Arif Panju is managing attorney of IJ’s Texas Office. 

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