School Choice in Tennessee: A Violation of the State Constitutional Right to a Substantially Equal Education
Most states have experimented with various versions of school choice over the past several years. While a federal right to education is not recognized, all fifty state constitutions provide some variation of an education clause, guaranteeing a state constitutional right to education. In Tennessee, satisfaction of the state constitutional right to education requires substantially equal educational opportunities for all students across the state. Despite this constitutional mandate, students in public schools across the state of Tennessee experience vast disparities in educational opportunities. Litigation is currently pending before the Tennessee Supreme Court regarding the constitutionality of the Tennessee Education Savings Account Pilot Program, and the public charter school sector continues to grow. School choice programs are draining traditional public schools of funding. Marginalized students and their families are expected to “choose” their way into the right school, as the Tennessee legislature abdicates its responsibility to provide substantially equal educational opportunities for all students. This note examines school choice in Tennessee through the lens of the Tennessee Supreme Court’s rulings in the Small Schools cases, which established the state constitutional right to a substantially equal education. Further, this article examines the discourse surrounding school choice, and compares that discourse to the available data on charter schools and traditional public schools. Applying the holdings in the Small Schools cases to the data comparing charter schools and traditional public schools, this Article concludes that the current state of school choice in Tennessee violates the Tennessee Supreme Court mandate that all students across the state have access to a substantially equal education. Finally, this Article proposes that the only realistic solution to fully address the issue of inequitable educational opportunities across the State of Tennessee is to adequately and equitably fund traditional public schools for the first time in State history.