Editorial on ESA Voucher Ruling from Professional Educators of TN:

The question in political circles is what will happen now that the signature legislation of the Lee Administration on Education Savings Accounts has been overturned by Davidson County Chancellor Anne C. Martin?

For the Governor's office, next steps will likely depend on the Tennessee Attorney General Herbert Slatery III's recommendation. The special interest groups in favor of the legislation will have to take a two prong strategy: they may have to raise money to fund an appeal, and they will have to prepare for future legislation. This will mean that they will have to make this a campaign issue in 2020. It will be a harder sell in 2020 than it was in 2018.

The COVID-19 crisis's effect on the state budget will be a huge factor. Even the cost of appeal, if they proceed with that, will be questioned. For education groups such as ours, we remain opposed. In particular for us, we will remain focused on K12 public education and keeping the necessary funding and programs in place to help all children succeed in Tennessee. Even with an ESA program in place with low numbers, K12 public education numbers continue to escalate.

In the immediate future, what happens to the roughly $40 million ESA set-aside now freed up - what happens to that funding? Will the Tennessee General Assembly press for changes to the budget? When legislators return this session, they could seek to move those dollars back into the BEP funding formula to pay for numerous mandates that remain unfunded and underfunded, or even technology which has been woefully inadequate historically in Tennessee?

The costs of appeals may be relatively low for court fees. However, attorney fees and the cost of litigation could be concerning. Potentially anyone involved from passing the legislation to enacting the legislation could be a witness. Obviously the longer this goes on, the more prohibitive it may become for both sides. What is interesting is that the person responsible for enacting the legislation for the state, Amity Schuyler, has subsequently moved to Shelby County Schools, which strongly opposes the legislation. Possibly nobody in the state knows the strengths and weaknesses of the program as well as Ms. Schuyler. Whereas the appeal will likely focus on the home rule provision and unconstitutionality of the program, plaintiffs will likely delve into the enactment of the program and Schuyler is critical on that particular component.

In the end, the political ramifications may be just as important as the judicial ruling. Questions are likely to be asked, such as: Does the Governor think the Tennessee General Assembly continues to support his effort on this program, in light of the latest ruling and in an election year? In hindsight, should the Governor and his staff have pushed for a more inclusive statewide program to defuse the merits of the judicial ruling that the legislation was unconstitutional, or would he have pursued the same legislation? Those answers will likely be forthcoming in the next few days. And it is likely this will be a huge campaign issue across Tennessee in 2020.