By Gary Humble
Tennesseans are still waiting on a final draft for legislation implementing Governor Bill Lee’s big push for school choice here in Tennessee. In the meantime, national special interest groups like Americans for Prosperity and the American Federation for Children are busy pushing the narrative that parents deserve a choice in educating their children. Of course, that choice includes a public benefit of $7,000 per child allowing parents to pay for or subsidize private education for students in Tennessee.
This week, an apparent mistake was made either by a staffer in Sen. Jack Johnson’s office or someone in the clerk’s office who inadvertently posted a draft of the bill on the legislature’s main website. The bill was available momentarily for public review and then taken down. Interestingly, we are uncertain of the legalities of that apparent “mistake.” Other legislators who have made a similar mistake in the past were not granted the same leeway in correcting their error citing rules that once government documents have been posted, they must remain in the public domain.
Of course, when you are dealing with legislation sponsored by the Senate Majority Leader on behalf of the Governor, seemingly, a different set of rules apply. Nonetheless, we have the draft.
A recent poll by The Beacon Center of Nashville showed Republican support for school choice at 85% while another poll by the Tennessee Education Association (TEA – aka teacher’s union) shows that 55% of Republicans oppose the effort. Most likely, the truth is somewhere in the middle. And personal experience in discussing the issue shows that Republicans are indeed split on the issue of school choice.
Concerns from the conservative mindset over school choice include:
- public monies used to fund private interests;
- funding private education for illegals;
- threats of future burdensome and overreaching regulations for homeschools and private schools;
- the overall cost of the program to taxpayers; and
- purporting to fix education by creating an entitlement program, or wealth redistribution scheme.
Before we take a look at the draft of this legislation filed by Sen. Jack Johnson, it is important to get a baseline of where things stand financially. The 2023-2024 Budget for the state of Tennessee sits at about $55.6 Billion (over 33% federal dollars). Of that, about 36 cents of every dollar is spent on education in Tennessee. When you combine that with public benefit programs, approximately 59% of our state budget is spent on education and social welfare (public benefit) programs.
To drill down a bit more considering we are discussing school choice, over $6.9 Billion is spent on K-12 education in our state. Of that, about $29 Million is spent on the current ESA program (Davidson, Hamilton, and Shelby counties where students receive about $9,800). And $66 Million is spent in support of charter schools in the state.
In recent testimony before the Tennessee Senate, Tennessee Education Commissioner, Lizzette Reynolds reported, “The results aren’t anything to write home about, is my understanding,” referring to the ESA pilot program currently going on in three Tennessee counties. Despite the lackluster performance of the pilot program, Governor Bill Lee is ready to deploy universal school choice throughout the state with an initial $140 Million price tag (funding 20,000 students in year one).
The biggest question on the minds of many is, how are we going to pay for this? And that question looms as Tennessee is currently reporting an almost $300 Million shortfall in revenue projections so far in this year’s fiscal budget.
What Tennesseans need to fully understand is the fact that the governor’s new school choice plan is new funding. It does not come out of the current budget for education in Tennessee, including K-12 funding which is appropriated through Tennessee Investment in Student Achievement (TISA). This is new money.
And there is a method to the madness. For one, the architects of this brilliant plan working to confront the talking points from the left side of the aisle are proposing that we can fund private school for some students in addition to continuing to fully fund a failing public school system. But it’s more than just appeasing the Left.
A recent January 10th federal court ruling has now given every parent in the state of Tennessee standing to sue the state over the harm done to students should dollars be transferred from funding public schools to funding private education through school choice. The state now has a real debacle on its hands. If it wants to avoid potential litigation in the courts, it needs to find a way to fund this school choice behemoth without touching TISA funds for public K-12 education. Meaning, there is no money “following the student.” Again, this is new money.
There is another reason that these expenditures need to exist outside of the current funding model for public education. And that is the funding of illegal immigrants. Under the 1982 US Supreme Court ruling, Plyer v Doe, states cannot deny public education opportunities to undocumented minors. This means, if school choice is funded through normal channels (like TISA) in how we fund public education, then the state of Tennessee would have to extend those same opportunities to illegals.
The solution per the bill draft in 49-6-3508(a)(2) on page 7 is to deem this program a “state or local public benefit.” What does that mean, exactly? Well, here are the main takeaways.
- Indeed, the state is considering school choice an entitlement program, a public benefit just like TennCare, public housing, welfare, food assistance, disability, or unemployment.
- This will be a new line item in the budget outside of current education spending.
- Per 8 U.S. Code § 1621, state or local public benefits are not offered to non-qualified aliens, meaning, illegals who do not have a green card, nor refugees or asylum seekers.
- Please note, under these guidelines, school choice dollars WILL be available to green card holders, refugees, and asylum seekers.
Beyond funding, one of the main concerns over school choice is the threat of future regulations on homeschools and private schools alike. We can say with confidence that the initial passage of this bill, should it succeed, will not carry any threatening regulation. The concerns over regulation are not immediate, but in the future once a significant portion of the population has adopted the public benefit as a mainstay.
In addition, we know that much of the regulatory scheme does not come in the legislation itself, but in the promulgation of the rules by the department once the legislation has passed. Section 49-6-3507, of course, states,
“The department shall promulgate rules, including emergency rules, to effectuate this part. The rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.”
The devil is always in the details. And in this case, those details will come well after the public scrutiny of the legislation itself has passed.
Concerning homeschools specifically, Section 49-6-3502(2)(B) of the draft defines an “eligible student” as
“Is not enrolled in a home school for which a parent is required to provide annual notice to the local director of schools prior to each school year of the parent’s intent to conduct a home school, as described in § 49-6-3050(b).”
That means that the only homeschools not subject to this legislation are those who independently report directly to the LEA, which is a very small percentage in Tennessee. The great majority of homeschoolers in Tennessee operate under an umbrella program that typically exists as Category IV Church-Related Schools. Under the current draft of this legislation, school choice dollars will be available to the homeschool community and therefore the threat of future regulations over homeschoolers is a clear and present danger.
Finally, let’s take a look at what the potential rollout of this plan actually looks like for families considering taking the state up on this offer of “free” money.
Per 49-6-3505, the program will seek to award 20,000 students with these $7,000 scholarships during the 2024-2025 school year. The prioritization schedule of the awards looks like this:
- The first 10,000 students from a family income level no more than 300% of the current US poverty level (i.e. $93,600 for a family of 4). OR, students who already qualify for the current ESA pilot program.
- The remaining 10,000 students will qualify without income restrictions or ESA pilot program qualifications and be approved in the order of application.
In short, this program will create a new $140,000,000 in Tennessee’s budget in order to move 2% of the current public school population into private schools or homeschool for the 2024-2025 school year.
In subsequent years, the future growth of the program is dependent on funds made available in the budget while continuing to admit student applicants on an income-tiered basis and then first-come, first-served.
Some advice for many who might be excited about the prospect of school choice, it is probably a good idea to temper that excitement as you will most likely not qualify for this public benefit. Additionally, even once you may qualify, the time to enter the program will be dependent on the state’s ability to both increase funding and thereby increase enrollment. In theory, many who may desire this benefit may be looking at a 5+ year wait before they can even get in.
Considering that Tennessee already spends 59% of its budget on education and public benefits, the move to add another line item to that budget can hardly be called fiscally conservative. In addition, the price tag for school choice will make the prospect of getting federal funding out of our education spending simply impossible. We can’t afford it.