School Choice a Matter of State Lines for Tennessee and Kentucky

A class at an elementary school in a file photo. John Moore/Getty Images

School choice, the policy debate surrounding using public education funds to allow students to attend a range of alternatives to traditional public schools, has become more widespread in the United States over the past few years.

While 18 states have taken no action on school choice, according to school choice nonprofit EdChoice, other states have followed the direction of Florida, which has the largest school choice program in the nation. EdChoice reported Florida spent approximately $1.2 billion on its school choice programs, equaling around four percent of the state’s total spending on K-12 education.

Last July, Arizona’s Republican Gov. Doug Ducey signed the nation’s most comprehensive private school voucher program into law, allowing more than 1.2 million children statewide to access funds for private school costs, according to the Associated Press.

Tennessee passed its school choice pilot program in 2019, but it was stalled in court until last summer, when the state’s Supreme Court gave it the green light.

Just across the state’s northern border, in Kentucky, their legislature passed a further-reaching school choice program. Although legislators sought a more expansive program in Kentucky, the state’s high court went in the opposite direction and overruled lower courts—finding the legislation unconstitutional.

Tennessee’s Plan Moves Forward

The Tennessee General Assembly passed its Education Savings Account (ESA) pilot program in 2019, but it was only recently allowed to go into effect when the state’s high court cleared its implementation after years of legal roadblocks.

The Tennessee ESA Act set up accounts where eligible families could receive approximately $8,100 in public tax dollars to help pay for private schooling tuition and other pre-approved expenses.

Republican Gov. Bill Lee has been a vocal supporter of school choice, but the measure only narrowly passed in the House in 2019, despite a Republican supermajority. The act passed by only one vote, after a Knoxville representative received concessions to remove Knox County from the proposal.

Justin Owen, President and Chief Executive Officer of the Beacon Center of Tennessee, has been working on advocacy for school choice for over a decade. While acknowledging the vote in 2019 was “very close,” he sees support for school choice growing in the state.

“We’re very pleased at the direction Tennessee is heading relative to Kentucky,” Owen said in an interview with The Epoch Times. “It really is the tale of two states on the issue. We’ve worked for many years to pass legislation in Tennessee to allow parents to have choice and then we actually defended against the lawsuits that were filed to try to strike the program down, and have thus far been unsuccessful,—with our Supreme Court actually upholding the program unlike Kentucky’s Supreme Court.”

He added that support was clearly growing among the population of the state, but he also believed it was growing among legislators.

Arizona Gov. Doug Ducey (R), talks about school choice expansion in Arizona during an "Education Freedom Report Card" celebration sponsored by The Heritage Foundation in Phoenix on Oct. 25, 2022. Allan Stein/The Epoch Times

“A whole lot of polls show people overwhelmingly support choice and that cuts across party lines—Republican, Democrat. It really is something that people support and I think that legislative support for it has grown, too.”

The original proposal for Tennessee covered school districts in the state’s four largest cities—Nashville, Memphis, Knoxville, and Chattanooga.

The Tennessee Senate’s version of the bill excluded Hamilton County (Chattanooga) at the time, but legislation is set to be proposed this session by Chattanooga Sen. Todd Gardenhire to add his own Hamilton County to the pilot program.

The program was eventually enacted only in districts with “10 or more” failing schools, which left only Shelby County and Metropolitan Nashville Public Schools.

Last May, the state’s Supreme Court found the ESA pilot program did not violate a section of the Tennessee Constitution regarding home rule, which seeks to prevent the legislature from implementing laws on select governments without their consent.

An earlier court upheld that the law did violate the home rule amendment and enjoined the state from implementing the program until the higher courts overrule.

The justices in their overruling found that because the pilot program focused on local education agencies instead of counties, it did not violate the home rule amendment.

Dissenting justices said the ESA Act “substantially affects Metro [Nashville] and Shelby County’s ability to self-govern and decide school funding issues ... and the Act gives Metro and Shelby County no choice in the matter.”

In another legal challenge in November, a Tennessee judicial panel upheld (pdf) the ESA Act—which was challenged under funding rules as opposed to the home rule amendment—stating they believed the opponents’ concerns were “speculative and representative of their disapproval of policy.”

That decision is again being challenged in court as the plaintiffs seek to appeal. Chris Wood, partner at Robbins Geller Rudman & Dowd, who represented the opponents of the ESA Act in court, said tax money should stay solely with public schools.

“Taxpayer funds should be used to support public schools,” he told The Epoch Times. “Tennessee’s voucher law is unconstitutional, and we have filed an appeal in our clients’ lawsuit challenging this damaging program.”

School Choice Slowed in Kentucky

Kentucky’s program, passed in 2021, would have allowed the state’s taxpayers who donate to account-granting organizations (AGOs) to receive a “near dollar-for-dollar tax credit against their income taxes,” which then could go toward EOAs set up for eligible students.

The EOA funds could be used for various education-related expenses, but “the primary focus has been their availability to defray the costs of nonpublic school tuition for eligible students,” according to the court’s ruling overturning the law.

The legislation did not come without its hurdles prior to becoming law either, as it passed in the Kentucky House by a narrow margin of 48–47 in March 2021. It was promptly vetoed by Democrat Gov. Andy Beshear, but subsequently overridden by the General Assembly later in the month.

Kentucky Gov. Andy Beshear speaks onstage during the 2022 Concordia Lexington Summit–Day 2 at Lexington Marriott City Center in Lexington, Ky., on April 8, 2022. Jon Cherry/Getty Images for Concordia

The legislation became effective on June 29, 2021, and was challenged shortly after as violating the Kentucky Constitution. A lower court found the legislation to be unconstitutional on two merits, one being the constitution’s prohibition of raining or collecting any sum for education other than public schools unless expressly approved by voters.

Proponents of the legislation appealed, urging the state Supreme Court to reconsider based upon “the importance of parental choice and recognition of the unique education needs of each child.” Opponents argued to the court the importance “of a sound, well-funded common school system open to all children regardless of their circumstances.”

“Public dollars can only go to public schools. Period,” Beshear said after the ruling.

EdChoice Kentucky President Andrew Vandiver said the goal is to continue to fight for educational choice.

“Comparing Tennessee and Kentucky, I would say that the Education Opportunity Account Act that the general assembly passed in 2021 actually put us in a position to lead on educational choice compared to Tennessee,” he said in an interview with The Epoch Times. “It was a really robust program and it would’ve helped a lot of kids. I think the General Assembly this session would have been positioned to expand that program in a number of ways, but because of the Kentucky Supreme Court decision, it’s going to hinder what the legislature can do in the short term.”

He added it is fortunate the “Kentucky Supreme Court does not set educational policy,” and expects the legislature to produce proposals to remedy the court’s ruling.

“We are going to work to set this right so that we’re not passed by states like Tennessee when it comes to investing in students,” he added. “The court’s ruling is the law of the land, but I do think that the legislature should not accept that as the final say on this issue.”

He added he is not against public schools and they are a valid choice for a lot of Kentucky families, but it is not the best fit for everyone and “parents shouldn’t be penalized for not being able to pay for it on their own.”

School Choice a Matter of State Lines

While Tennessee’s program is considered more modest than Kentucky’s due to its current scope, it nonetheless could make the state more attractive to parents seeking options for school choice, Owen said.

“States like Kentucky that are curtailing those choices, that are refusing to expand options for families, they’re really beholden to the unions and bureaucrats rather than the parents,” Owen said.

“People vote with their feet all the time and certainly when it comes to their kids’ education, people are willing to move from one school district to another, from one county to another, and from one state to another.”

Owen said he believed that opponents who think school choice takes money away from public schools are only standing in opposition to choice.

“Parents aren’t making those arguments,” he said. “In fact, every time you give parents options, they’re exercising those options—whether it’s a charter school, a private school, or another option.”

He added he believed opponents are against school choice because the money follows the child instead of bureaucratic institutions.

“The reality is, they’ve been given decades to fix our failed education system, and they have not succeeded, they have actually failed miserably,” he added. “It’s time to give someone else a shot. And for us there’s no better person than the parent to make that decision.”

Vandiver said the high court’s move not only puts Kentucky at odds with its neighbors to the south, but with every other surrounding state.

“Every single state surrounding Kentucky has educational choice,” he said. “If you go out into the broader area, practically every state in the South and Midwest and big chunks of the Northeast all have programs. So this supreme court decision really is on the fringes, legally speaking; it’s on the fringes policy speaking. And there is a lot of energy I think to take steps to push back on that.”

He also sees the move as possibly being the difference between a parent moving to Kentucky or moving to Tennessee.

“I think it’s going to be a big issue, you know, when you put up Kentucky and Tennessee,” he said. “Tennessee is really a growing state, so when you get beyond education policy, folks are always talking about how we can keep up with these other states that are seeing a lot of families moving in. If a family is thinking about moving to Kentucky, or maybe they’re between Kentucky and Tennessee and they’re a family with young kids, Tennessee has more options.”

The Tennessee legislature is currently in session and the Kentucky legislature reconvenes in February.