This story was updated Wednesday, May 1, 2019, at 8:46 p.m.
NASHVILLE — The Republican-led Tennessee Senate gave final approval Wednesday to Gov. Bill Lee's school education savings account plan amid questions over its actual costs, with one GOP lawmaker warning colleagues that "fuzzy math like this is how majorities become minorities."
The bill, which cleared the House earlier, passed the Senate on a 19-14 vote.
Sen. Todd Gardenhire, R-Chattanooga, was among nine Republicans voting no, citing the joint Senate and House conference committee's decision to change language that Gardenhire said effectively excludes undocumented students and even U.S.-born children whose parents are here illegally from participating.
It was a deal killer for Gardenhire, who has championed education for undocumented immigrant children, although he was happy the final bill excludes Hamilton County schools.
Under the legislation, the program would now only apply to Metro Nashville and Shelby County schools, as well as the state's Achievement School District for failing public schools.
Lee's "education savings account" legislation over the next five years would provide about $7,300 in state and local tax dollars annually to parents of up to 15,000 students who live in a school district that has one or more schools falling into the bottom 10 percent of public schools statewide.
Problems erupted early in the day Wednesday after a new fiscal note on the conference committee report, drafted by longtime voucher advocate Sen. Brian Kelsey, R-Germantown, showed costs much higher than originally touted.
It estimates the bill will cumulatively cost nearly $370 million in state as well as local tax dollars shifted due to loss of students from impacted districts over the next five years.
As Senate Finance Committee Chairman Bo Watson, R-Hixson, who wasn't involved in fashioning Kelsey's plan, sought to explain the fiscal note, questions continued to pile up. Kelsey tried to address them, noting the costs are $25 million annually, plus an additional $3 million for state administrative expenses.
That still didn't satisfy a number of lawmakers, including Sen. Steve Dickerson, R-Nashville. That's when he dryly observed that "fuzzy math like this is how majorities become minorities."
Gardenhire had his own issues. A longtime voucher proponent, Gardenhire said Kelsey's change "eliminates any undocumented children, also those born in the U.S. whose parents are undocumented."
"You can't believe in a part of the 14th Amendment, you believe in it all," Gardenhire chided the chamber. "We all took oaths to uphold the Constitution but not the parts you didn't like, but the whole darned thing."
He noted Howard High School in Chattanooga is a failing school with some 40 percent of students now of Hispanic heritage.
"If educated, they will become assimilated," Gardenhire said.
Seeking to rally supporters, Senate Majority Leader Jack Johnson, R-Franklin, urged lawmakers to remember "this is a good bill it's time to try it."
Lee and other proponents say the bill is intended to help students "trapped" in failing schools to go to private schools. Amendments deleted original provisions to add students who are home schooled.
Earlier, the conference report faced rough questioning in the House, where it eventually passed 51-46. Two Republicans, who didn't vote, later asked their votes to be recorded as yes votes.
Earlier, when the conference report hit the House floor, Rep. Patsy Hazlewood, R-Signal Mountain, who voted against the original bill, said she was now supporting it because it excludes Hamilton County and gives the community's State Partnership Network for Brainerd High School and its four "priority" feeder schools time to work.
"I've worked very hard to protect this pilot program," Hazlewood said of the partnership network. "I committed to vote for the [education savings accounts] if Hamilton County was exempted."
Still, Hazlewood said, she nonetheless thinks the bill should be better targeted on low-income families in poorly performing schools, noting she would like to restrict it to students eligible for the federal free and reduced lunch program.
As it is, some middle class families making $66,000 a year can participate in Lee's [education savings account] program, Hazlewood said.
"I want to challenge us as a legislative body, both today and in the 112th legislature, to take a hard, long, objective look at this program in the next three years," Hazlewood said.
Minority Leader Mike Stewart, D-Nashville, an attorney, predicted the exclusions for the 93 counties will be found unconstitutional by a court if the legislation is challenged, as was the case in a 2012 decision involving a law dealing with small school districts.
Stewart said the legislation's attempts to get around that won't work.
"You can't cure unconstitutional by then having a provision saying if that's struck down we're going to limit it according to that same constitutional provision," Stewart said.
Rep. Mike Carter, R-Ooltewah, an attorney, disagreed.
"This bill is as supported legally as any I've seen come through here," Carter said.
There is a severability clause in case any provision is struck down by a court, Carter said. It would remove any provision of the law ruled invalid.
Moreover, Carter said, there's a "reverse severability" provision which he said would "clearly state" to courts "that it is our intention" that if the county restriction provision was found unconstitutional, it "shall not be construed to expand to any other counties."
"These 'pants' are not only held up by a belt but by suspenders as well," Carter argued.
Contact Andy Sher at firstname.lastname@example.org or 615-255-0550. Follow him on Twitter @AndySher1.