Does Tennessee’s School Choice Program Violate the State Constitution’s Public Education Guarantee?

Arif Panju is lead counsel for the parent intervenor-defendants in McEwen v. Lee, a legal challenge to Tennessee’s education choice program.

Education clauses in state constitutions are meant to serve children, not public school bureaucracies.

In most states, education clauses impose a mandate to create a public school system that is free to attend. Simple enough. But a debate has erupted in multiple states over whether laws that allow families to use public money to access schools beyond their local option — known as educational choice programs — run afoul of these clauses. Fortunately, the legal theory pressed by public school advocates that oppose choice programs has been rejected by nearly every state supreme court that has considered it.

Why do some advocates think educational choice programs violate education clauses? The answer is found in state court litigation pressed by public school advocates seeking to extinguish choice programs after they become law. The crux of their legal theory is that such programs violate constitutional requirements mandating a single system of public education because they take resources from already-struggling school districts and give them to private schools that are not held to the same standards. This amounts to an argument that education clauses not only require maintaining a public school system but make it illegal for a legislature to create any additional educational options. Accepting this view risks upending K–12 education.

Take Tennessee. The state’s Education Savings Account Pilot Program empowers families of modest means to afford a variety of educational options that meet their child’s needs if an assigned public school fails to do so. Tennessee’s program allows eligible students zoned to attend the lowest performing schools in the state to opt for the public money for their child’s education to be deposited into an education savings account. The families can use funds in the account for approved education expenses like tuition at a private school. The money follows the child, giving families more options.

In 2020, two state lawsuits were filed to stop this program — one by two counties where students were eligible for the program and a second by public school advocates. Parents represented by the Institute for Justice, where I work, and the Beacon Center of Tennessee entered both cases as intervenors to defend the program alongside the state. The counties abandoned their case, Metropolitan Government of Nashville v. Tennessee Department of Education, after losing in the Tennessee Supreme Court in 2022. The second case, McEwen v. Lee, is ongoing, and currently in the trial court after an appellate court held that the plaintiffs have standing to sue. At issue is whether the state constitution’s education clause bars the creation of the education savings account program.

The remaining plaintiffs challenging the program argue that the clause prohibits the legislature from establishing anything other than a “single system of public education.” This reading of the clause is wrong for many reasons. To start, the text says no such thing. Rather, the text states three things: First, Tennessee “recognizes the inherent value of education and encourages its support.” Second, the legislature “shall provide for the maintenance, support and eligibility standards of a system of free public schools.” And third, the legislature “may establish and support . . . post-secondary educational institutions.”

As with education clauses in other states, the Tennessee Constitution imposes a mandate to provide a public school system — “shall provide for” ― which sets a floor. But the provision contains no restrictive language imposing a ceiling on the legislature’s power to support Tennesseans’ education. Nowhere do the words of the clause prohibit the legislature from creating additional educational options.

In fact, the clause celebrates innovation right from the start, with its declaration that the state will encourage and support education. One way Tennessee does this is by establishing innovative educational options in addition to the traditional public school system. These include the savings account program and a separate choice program for special-needs children. These are additional educational options that help Tennessee parents exercise their fundamental constitutional right to direct the upbringing of their children.

The right to direct a child’s education is deeply rooted in Tennessee’s history. In 1917, the state’s high court declared “sacred” the interest of a parent “to [her child’s] tutorage” in In re Knott. This fundamental right is also protected by the 14th Amendment to the U.S. Constitution. In 1925, the U.S. Supreme Court in Pierce v. Society of Sisters held that a law requiring every child to attend public school was “unreasonably interfer[ing] with the liberty of parents and guardians to direct the upbringing and education of children under their control.” It’s children first, not systems. Those seeking to confine education clauses get this exactly backwards.

Imposing a duty to create and maintain a system of free public schools does not constrain the power of a state legislature to legislate in the area of education. Were it otherwise, the framers of Tennessee’s education clause would have said so. They would have used prohibitive language, employed elsewhere in the constitution, to say that maintaining the public school system is the “sole” or “exclusive” way that the legislature can support education. But education clauses do no such thing. The plaintiffs’ exclusivity theory leads to absurd results ― it is no different than insisting that courts should interpret the U.S. Constitution’s mandate to “raise and support Armies” as prohibiting an air force.

Importantly, in all states with educational choice programs, the state’s public school system remains firmly in place, both before and after the program’s passage, and thus fully available to parents who wish to send their children to public schools. It is no surprise, then, that nearly every state supreme court to consider whether their education clause bars the creation of educational options in addition to the public school system has rejected the theory.

The sole outlier is Bush v. Holmes from the Florida Supreme Court. The high court found that a program allowing public dollars to go toward private schools improperly reduced “money available to the free schools” and funded “private schools that are not ‘uniform’ when compared with each other or the public system.” In so doing, the court rejected the argument that Florida’s education clause sets a constitutional floor requiring a public school system and instead cast it as a ceiling.

But Holmes is a singularly unpersuasive decision. As the dissent explained, the text of the constitutional provision in question is unambiguous, and nowhere does it preclude the legislature from helping those in one of Florida’s “failing” public schools from achieving a better education using public funds. It’s no wonder, then, that every state supreme court considering an exclusivity argument based on Holmes has rejected it. When the Tennessee challengers invoked Holmes to ask for a preliminary injunction, the district court was unpersuaded and held they were unlikely to prevail on the merits of their claim.

Education clauses are designed to benefit children. They ensure a constitutional floor— a system of free public schools — but do not tie the hands of future legislatures by imposing a ceiling on how states can help parents with education. And that is good for all children.

Arif Panju is a managing attorney with the Institute for Justice.