TENNESSEE ADOPTS NEW LAW TO FRUSTRATE REFORM LITIGATIONS

As a result of a new state law enacted this summer, the trial in the long-pending Shelby County school funding case, instead of being heard before a single judge in Nashville— the traditional venue for constitutional challenges to Tennessee laws  —- will now be heard in Murfreesboro, a university town south of Nashville, by a panel of three judges representing East, Middle, and West Tennessee. Moreover, the start of the trial,  that had been scheduled for October, was postponed to February.

The new law creates a statewide court to hear certain matters related to state government. The Republican-controlled legislature apparently adopted this statute in response to rulings from judges elected in heavily Democratic Nashville, such as recent decisions that struck down the state’s  school voucher law and expanded access to absentee voting during the pandemic. Critics have called the creation of a so-called “super-chancery court” an attack on Tennessee’s judiciary, while supporters have argued that the courts in these cases should better reflect the political leanings of all of the state’s voters.

Memphis-based Shelby County Schools, the state’s largest district, filed the original lawsuit in 2015. Metropolitan Nashville Public Schools joined the case two years later, and a coalition of 87 smaller districts signed on as intervening plaintiffs in 2020.

The core of the plaintiffs case is a claim that the state has failed to fully fund the Basic Education Program (the “BEP”), a funding mechanism that the legislature enacted in 1992  in response to an earlier school funding litigation.  A BEP Review Committee periodically determines the actual costs of operating the public school system and is expected to ensure that funds are distributed equitably to meet actual costs across the state based on school districts’ relative funding needs.

By recently joining the case, the small school districts underscored the argument that the problem with Tennessee’s education  finance system is that it is inadequate and inequitable for all students throughout the state and not just for the urban school districts, which educate a disproportionate percentage of poor students, English-learning students and disabled students. The earlier lawsuit that led to enactment of the BEP was, in fact,  filed by the small school districts in the 1980s over the equity of education funding.

Some commentators have opined that  the legislature’s maneuver to empower a statewide judicial panel to hear major lawsuits may backfire on conservative legislators, at least in the school funding context,  because of the involvement of the coalition of small districts. “If this case was just about two urban districts, the judicial changes could be bad news because it will be argued before jurists from different jurisdictions,” said Will Pinkston, a former Nashville school board member who pushed for the litigation. “But now you’ve got a statewide panel that’s on the cusp of adjudicating a statewide issue. In a weird way, it makes a lot of sense.”