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Tennessee Supreme Court to Hear Parents’ Appeal Defending School Choice Program

ESAs offer lifeline to parents with children assigned to underperforming schools

Monday afternoon, the Tennessee Supreme Court announced that it will hear the appeal from 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. Bah and Diallo planned to use the ESAs to send their children to better-performing schools.

“Parents will vindicate their right to choose the best education for their children at the Tennessee Supreme Court,” said IJ Senior Attorney Arif Panju. “The Home Rule Amendment does not allow local governments to extinguish Tennesseans’ educational options.”

In the September ruling against the program, the appeals court ruled that the pilot program was unconstitutional under the Home Rule Amendment of the Tennessee Constitution. This provision prohibits the legislature from adopting “private or local” laws that are “applicable to a particular county . . . in either its governmental or its proprietary capacity.” But the program applies to school districts, not counties, and it neither affects nor reduces any county’s ability to govern itself. The law simply empowers 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 parents filing today’s appeal are asking the Tennessee Supreme Court to reverse the appellate court and restore Tennessee’s Education Savings Account Pilot Program.

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.

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