Metropolitan Government of Nashville and Davidson County et al. v. Tennessee Department of Education et al. - Concurring in Part & Dissenting in Part

SHARON G. LEE, J., with whom HOLLY KIRBY, J., joins, concurring in part and dissenting in part.

In this interlocutory appeal, the issues we address are whether the Plaintiffs,Metropolitan Government of Nashville and Davidson County (“Metro”) and Shelby County, have standing to challenge the constitutionality of the Tennessee Education Savings Account Pilot Program,2 (“the ESA Act”), and, if so, whether the ESA Act violates the Home Rule Amendment.

I agree with the Court that the Plaintiffs have standing to bring this action. The ESA Act causes a distinct and palpable injury to the Plaintiffs’ sovereignty—their right to control their local affairs—as guaranteed by the Home Rule Amendment. As we have held, the Home Rule Amendment was adopted “to strengthen local self-government” and “to fundamentally change” the relationship with the General Assembly. Civil Serv. Merit Bd.of Knoxville v. Burson, 816 S.W.2d 725, 728 (Tenn. 1991); S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706, 714 (Tenn. 2001). Based on the Home Rule Amendment, Tennessee’s counties and home-rule municipalities “derive their power from sources other than the prerogative of the legislature,” and they enjoy constitutional protection against local legislation enacted without their consent. S. Constructors, 58 S.W.3d at 714; Tenn. Const. art. XI, § 9, cl. 2. Thus, the Plaintiffs’ standing is based on the ESA Act’s impairment of their ability to self-govern regarding school funding.

I disagree with the Court that the ESA Act does not implicate the Home Rule Amendment. The Court’s decision ignores the acknowledged harm to the Plaintiffs’ sovereignty caused by the ESA Act.3 It is this established injury to the Plaintiffs’ ability to self-govern that the Home Rule Amendment was intended to protect. While the ESA Act facially refers only to a Local Education Agency (“LEA”),4 the Act substantially affects the Plaintiffs’ ability to decide issues of local concern. That is enough under our previous decisions to implicate the Home Rule Amendment. Without a provision of local approval as required by the Amendment, the ESA Act is unconstitutional.