Last night, Natu Bah and Builguissa Diallo, two parents who partnered with the Institute for Justice (IJ) to defend the Tennessee Education Savings Account Pilot Program from a constitutional challenge levied against it in February, filed a motion with the Tennessee Supreme Court to ensure Tennessee families can use Education Savings Accounts (ESAs) in the upcoming 2021-22 school year should they prevail in the Tennessee Supreme Court. As of now, due to an injunction issued last year by the Chancery Court of Davidson County, even if Bah and Diallo prevail in Tennessee’s high court, they along with other Tennessee families will not have ESAs available in the fall unless the injunction is modified.

“Parents like Natu and Builguissa are among the thousands who will send their kids to better schools because of this program. This motion will ensure that they’re able to do so once the program is ruled constitutional,” said IJ Attorney Keith Neely.

The Chancery Court’s injunction went into effect in May 2020 and stops the Tennessee Department of Education from processing ESA applications and taking the administrative steps to ready the ESA program. In a September ruling against the program, the appeals court of appeals affirmed the lower court and ruled that the ESA program was unconstitutional under the Tennessee Constitution’s Home Rule Amendment. On February 4, the Tennessee Supreme Court granted review and will hear the case.

“The need to protect educational choice for Tennessee families is made even more clear by Metro Nashville and Shelby County shutting the doors to the public schools while simultaneously working to extinguish the educational options that empower parents to go elsewhere,” said IJ Managing Attorney Arif Panju. “Parents will vindicate their right to choose the best education for their children at the Tennessee Supreme Court.”

At issue in the Tennessee Supreme Court is how to interpret the Home Rule Amendment, a provision of the state constitution that prohibits the General Assembly from adopting “private or local” laws that are “applicable to a particular county . . . in either its governmental or its proprietary capacity.”

But the ESA program applies to school districts, not counties, and it neither affects nor reduces any county’s ability to govern itself. ESAs simply empower low- and middle-income families with children assigned to some of Tennessee’s worst-performing schools, and does so by allowing them to receive their education benefit in an ESA so that they can afford private educational options that meet their needs.

The ESA program was passed in 2019 by the Tennessee Legislature. The program can offer a lifeline to families that would like to leave underperforming school districts that do not meet their children’s needs, but who lacked the financial resources to do so until now. Under the ESA program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks, and tutoring services. The program is available to qualifying low- and middle-income families like a family of four whose annual income is less than $66,950.

The February lawsuit was brought by the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education.

Oral argument will be scheduled following the completion of briefing.