Tennessee's controversial school voucher program can go ahead for this school year, a three-judge panel ruled late Friday afternoon.
Familiar arguments circled earlier in the day as the panel, part of Tennessee's new "super chancery" court for challenges to state law, heard arguments over a push to once again halt the state's controversial school voucher law.
The hearing was just two days before school starts in Memphis and Nashville, but nonetheless the judges chose to take the issue under advisement and not issue an order from the bench.
A few hours later, they denied the motion for an injunction.
Chris Wood, partner at Robbins Geller Rudman & Dowd, who argued for the a group of parents who oppose the law, known as the McEwen plaintiffs, said they were disappointed in the decision in an emailed statement.
“This chaotic rollout will only harm students and schools and waste taxpayer dollars on an unconstitutional voucher scheme. The chancery court will hear further argument in the case on September 19, and we are confident it will recognize the merits of our clients’ claims and the many ways this voucher program violates the essential guarantees of the state constitution," Wood said.
The program puts public school funds toward private school tuition for eligible students from the two counties. The Tennessee Supreme Court last month struck down an order that had blocked the program for two years.
But Nashville and Shelby County, as well as a group of parents who want the funds to stay in public schools, argue the program should still be paused.
The higher court's ruling didn't wipe away the need for the courts to block the program while the case continues, they say, and by rushing to get the program on its feet in time for school, the state is overlooking its own rules for implementation.
At least one parent celebrated the win.
“I am thrilled at the opportunity for my children to attend private schools that meet their needs," said Star Brumfield, in an emailed statement released by the Institute for Justice "It’s been a long journey.”
The organization says it is the nation’s leading advocate for school choice, and was joined by the Beacon Center of Tennessee in intervening in the case.
Details on the precise process of rolling out the program remain thin, a point of contention in Friday's ruling.
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Home rule argument denied, so state moved forward
The state argues the program is intended to give students in districts that have low-performing schools a chance to attend private schools in the hope of a better education. Attorneys insist delaying the program would harm those students.
But the counties say taking money away from underperforming school districts helps no one. A crux of their argument is also that other districts that have performed worse than those in Nashville and Memphis aren't part of the program, creating a possible equal protection violation.
By rushing to implement the program in time for school, they argue, the state is bypassing key components of how the program should work and how it should be communicated to families
The Tennessee Supreme Court disagreed that the program's narrow tailoring to only include Davidson and Shelby counties' public school districts was unconstitutional under the Home Rule amendment.
But, the counties argue, the court found they did still have local sovereignty and a stake in the decision, not ruling out their chance to continue the challenge.
The timing of the ruling ultimately gave the state education department half the time education officials had previously said would be required for a successful launch before the school year started.
So far, the state says more than 2,000 students have expressed interest in applying for the program, but the final count of how many will apply or be found eligible remains to be seen.
Also still in the air is how exactly the program will be implemented. The state has yet to announce a contract for a portal system or details on the logistics of the initial rollout.
The ambiguity was part of the counties' argument for the injunction. At a hearing Friday, Davidson County Chancellor Anne C. Martin also pushed the state on why it was pushing to implement the program so quickly.
"Whether or not that justifies an injunction or whether or not that shows likelihood of success on the merit, it is a very valid point that this is all inconsistent, rushed, unclear, with different sources of information that are difficult to discern," Martin told the state's attorneys.
When Assistant Attorney General Stephanie Bergmeyer responded that the state had been blocked from working on the program for two years, Martin once again pushed for a more solid argument.
"That still doesn't answer the question, why does it have to happen in three weeks' time or a month's time? There's a whole list of things that the state is not adhering to: It's not setting up accounts rather it's doing the reimbursement to the schools; it hasn't done any rulemaking to answer all these questions," she noted.
Attorneys for certain defendants included state Sen. Brian Kelsey, R-Germantown,who voted for the law in the General Assembly and argued before the court Thursday on behalf of the Liberty Justice Center, which joined the state's appeal last year.
Kelsey, who announced this year he would not run for reelection, stepped down as chair of the Senate Education Committee following an indictment in a federal campaign finance conspiracy.
This article originally appeared on Nashville Tennessean: Judges greenlight TN school voucher program in Nashville, Memphis