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Tennessee Gov. Bill Lee talks with students during a visit to Cameron Middle School Monday, April 1, 2019, in Nashville, Tenn. (AP Photo/Mark Humphrey)

This story was updated Wednesday, April 10, 2019, at 9:43 p.m. with more information.

NASHVILLE — Republican Gov. Bill Lee's education savings account legislation advanced in Senate and House committees Wednesday, but an immigrant rights group is charging the governor's bill is "bucking the Constitution" because it seeks to exclude undocumented children.

"This bill suffers from serious constitutional and legal problems that will undoubtedly lead to costly taxpayer funded litigation that is doomed to fail in the courts," reads a statement from Lisa Sherman-Nikolaus, policy director at the Tennessee Immigrant & Refugee Rights Coalition.

To address several political issues, including concerns raised by some House Republicans over undocumented children being able to qualify for the taxpayer-funded school voucher-like program, Lee came forth with an amendment re-write of the bill.

It seeks to exclude undocumented students by requiring parents to provide official documents such as a driver's license, birth certificate or a passport.

While the Lee administration has said that's intended to provide information so the state can audit families' expenditures to deter fraud and ensure public dollars are being spent on private school tuition, uniforms and other education-related expenditures, Lee himself acknowledged to reporters earlier this month that the legal status of participants was at least part of the rationale.

"It's important that we provide this program and we're going to make certain that we provide that to legal residents of Tennessee," Lee said at the time.

In a rare moment of agreement, the Tennessee Immigrant & Refugee Rights Coalition and the anti-illegal immigration group Federation for American Immigration Reform (FAIR) both say Tennessee can't do that under a 1982 U.S. Supreme Court ruling.

It held that undocumented children are entitled to a free public education under the U.S. Constitution's equal protection clause. As a result, school systems are barred from determining which students are in the U.S. illegally, they say.

Lee spokespeople Chris Walker and Laine Arnold did not respond to a Times Free Press request for a response to Sherman-Nickolaus' comments.

But Lee's bill may have a built-in escape hatch if the issue were to go to court. It's called a severability clause.

It states: "If any provision of this act or its application to any person or circumstance is held invalid, then the invalidity shall not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to that end the provisions of this act shall be severable."

 

Amended Senate bill changes at odds with House version

The bill would impact school districts that have three or more schools falling into the state's bottom 10% of schools in terms of student performance.

That takes in Hamilton, Davidson, Shelby and Knox counties' school systems, as well as the state-run multi-school Achievement School District intended to turn around failing schools.

Lee proposes providing $125 million by the fifth year of the program to provide education savings accounts to thousands of students, with the average annual award estimated at about $7,300 in state and local tax dollars.

The bill approved by the Senate Education Committee on Wednesday makes a number of other changes that differ from concessions made by Lee to get the House bill moving. The House bill cleared that chamber's Finance Subcommittee earlier Wednesday and is now going to the full committee.

Senate Education Committee Chairman Dolores Gresham, R-Somerville, the bill's sponsor, presented her own amendment to re-write the bill, which was eventually adopted on a 7-2 vote after about two hours of debate and testimony.

It would allow up to 30,000 students from impacted districts to participate in the program. But the House version caps the number at 15,000.

And while the House bill deleted funding for parents who home school their children, Gresham's amendment allows them to participate. That came about due to concerns over fraud in a similar Arizona program.

The Senate's inclusion of homeschoolers drew praise from Sen. Mike Bell, R-Riceville, noting he and his wife had homeschooled their own children.

"I think it's time for those parents not to have to foot the bill completely for their children's education," Bell said. "Face it," he added, "we have school choice now for the wealthy," and noted that attending the private Baylor School in Chattanooga costs upwards of $40,000 when room and board is considered.

Bell, who voted for the bill, said it's a bill about "school choice."

The Senate bill is also at odds with the House's version on testing. Representatives' bill says private schools accepting the students will have to let them take the state's TNReady tests in English and math. The Senate bill says they can take either the TNReady exams that public school students must take or norm-referenced tests.

 

Local dollars at stake?

During the Senate hearing, representatives of the Tennessee Organization of School Superintendents and the Tennessee School Board Association repeatedly clashed over how well similar education savings account programs are doing in other states.

And they disagreed over the financial implications for schools and even whether local tax dollars along with state funds would have to follow students to private schools.

Lee is proposing giving the collective impacted school systems $25 million a year for the savings account program's first three years to cover any losses of students from the state's Basic Education Program, where most dollars are tied to enrollment.

Beginning in the fourth year, the money would go to a district's "priority schools," those schools falling into the bottom 5% of schools statewide.

Sen. Brian Kelsey, who chaired the committee since Chairman Gresham was presenting the bill, resisted calls by Sen. Joey Hensley, R-Hohenwald, to bring a state Department of Education official in to set the record straight on potential losses of local tax dollars following children participating in the savings account program.

"I'm concerned about local dollars because local governments and county commissions, city councils are required to fund so much money," Hensley said. "And the school boards and the county commissions fight now all the time now about funding."

Kelsey, a long-time voucher proponent, finally called on Lee's chief lobbyist, Brent Easley, former state director for the pro-voucher and school choice education advocacy group TennesseeCAN, to testify.

Easley told the panel "I'm not with the department, but I will give you my interpretation of it. You have two real portions of this bill. The first is the time period when the reimbursement fund is active. And beyond that you have the time period where the monies that were meant for that fund are turned into priority school turnout grants."

He also noted that "during that time and really throughout the program, the state and local portions of the BEP are used to fund the [education savings] account. Very similar to what happens right now with the [individualized education account] program [for disabled students]. Those local dollars are subtracted from the state portion that goes in and they're used to fund those accounts."

Hensley, who voted no, said he also was worried that the education savings account program would likely impact rural counties like those he represents because as urban schools presumably improve, new districts would fall into the bottom 10%.

Gresham said she was "disappointed" in the opposition to the bill, saying the reasoning behind local systems' opposition "can essentially be stated in one sentence. And that is: 'We shouldn't have parental choice because it will cost us money.'"

The next stop for Gresham's bill is Senate Finance. The legislation is Senate Bill 795 and House Bill 939.

Contact Andy Sher at asher@timesfreepress.com or 615-2655-0550. Follow him on Twitter @AndySher1.

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