Can a small Tennessee K-12 school that opened before 1961 build a new high school building even though it has fewer than 300 high school students?

Subject

Opinion No. 11-59, Establishment and Maintenance of a Senior High School, July 18, 2011

Plain-English summary

Representative Jimmy Matlock asked whether Greenback Public School, a K-12 school in Loudon County, could build a new facility for its high school students even though the high school's average daily attendance was below 300. The concern was Tenn. Code Ann. § 49-6-403(b)(2)(A), which says "[n]o senior high school shall be established and maintained with fewer than three hundred (300) pupils in average daily attendance." On its face, that seemed to bar small high schools from continuing.

The AG explained why it does not. Subsection (D) of the same statute contains a grandfather clause: "Nothing in this part shall be construed as abolishing any high school now established." Tracing the legislative history matters. The original 1925 act set a minimum of 10 students for a two-year high school and 30 for a four-year high school, and it included the same "now established" grandfather. The 1957 act raised the minimum to 75 students and kept the grandfather. The 1961 act raised the minimum to 300 students, and again kept the grandfather. The phrase "now established" in each version refers to high schools in existence at the time of that act's enactment. So the 1961 grandfather protects every high school that existed in 1961.

Greenback Public School opened in 1921 and has run a high school continuously since then. It was the first and only public school on the eastern side of the Tennessee River in Loudon County. As of 2011 it had about 660 students in grades K-12. Greenback's high school existed long before 1961, so it falls inside the grandfather. The 300-student minimum simply does not apply to it.

Then the second piece: building a new facility for the existing high school program does not count as "establishing" an additional high school. The statute uses "established and maintained" together. Greenback was established as a high school in 1921 and has been maintained as one ever since; a new building is just a continuation of the same school. Under that reading, Greenback can build a new high school building even though its enrollment is well below the 300 threshold. (If Greenback were trying to spin off a separate, new high school, the analysis might be different. But that was not what the question presented.)

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee school size and consolidation rules have been amended multiple times since 2011. Anyone applying this analysis to a current construction project should check the current text of Tenn. Code Ann. § 49-6-403 and any related funding or state-aid statutes (BEP, TISA, etc.) before relying on the conclusion. The grandfather principle is likely intact, but specific thresholds and procedures may have changed.

Background and statutory framework

Senior high school defined. Tenn. Code Ann. § 49-6-401 defines a senior high school as "schools in which are taught any combination of grades corresponding to grade nine through grade twelve (9-12); however, the school must include grade twelve (12)."

The minimum-size rule. Tenn. Code Ann. § 49-6-403(b)(2)(A): "No senior high school shall be established and maintained with fewer than three hundred (300) pupils in average daily attendance." Subsection (B) allows a school in a "state of transition" to start below 300, provided it reaches 300 after the transition. Subsection (C) preserves consolidations even if the consolidated school is below 300. Subsection (D) is the grandfather: "Nothing in this part shall be construed as abolishing any high school now established." Subsection (E) authorizes local boards, in "unusual circumstances," to maintain smaller high schools with prior approval from the commissioner of education and the state board of education.

The historical pedigree of the grandfather clause. The 1925 act (1925 Tenn. Pub. Acts, ch. 115, § 14) set the original minimums (10 for a two-year high school, 30 for a four-year high school) and included the grandfather. The 1957 amendment (1957 Tenn. Pub. Acts, ch. 145, § 1) raised the minimum to 75 in average daily attendance and retained the grandfather. The 1961 amendment (1961 Tenn. Pub. Acts, ch. 137) raised the minimum to 300 and retained the grandfather in the form now codified at § 49-6-403(b)(2)(D). The AG read each version's "now established" as referring to schools in existence as of that act's enactment date.

Judicial backdrop. State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 223-24 (Tenn. 1988), is cited as Tennessee Supreme Court precedent applying the statute, though not addressing the precise grandfather question.

The school in question. Greenback Public School opened in fall 1921 in Loudon County. As of 2011 it served roughly 660 students in K-12 and was the only public school on the eastern side of the Tennessee River in Loudon County. The high school program had operated continuously since 1921.

Common questions

Does the grandfather protect Greenback's high school forever?

The grandfather protects the school's continued existence as a high school. It does not freeze the school in time. The school continues to be a "high school now established" so long as it operates continuously as one. The opinion does not say what would happen if Greenback voluntarily closed its high school and then later tried to reopen it; the language "now established" suggests reopening would not regain grandfather protection.

Could Greenback be forced to consolidate with another school?

The 300-student rule does not by itself force consolidation; the grandfather clause shields existing small high schools. Consolidation is governed by separate statutes and local board action. Subsection (C) protects consolidations even if the resulting school is below 300, so a voluntary consolidation does not run afoul of the minimum-size rule either.

Is the answer the same if the new facility is built somewhere else in the district?

The opinion does not say. The reasoning depends on the new building being for "Greenback Public School's high school students," that is, the same school in continuing operation. If a district tried to relocate so far that the school effectively ceased to exist and a new one began, that might raise a different question under "established and maintained." The clean factual case the AG addressed is replacement of facilities for the same school.

What about subsection (E), the "unusual circumstances" exception?

Subsection (E) allows the local board to maintain a smaller high school with prior approval from the commissioner of education and the state board of education. That is a separate path that could apply to other schools that lack grandfather protection. The opinion does not need to reach (E) for Greenback because the grandfather clause does the work.

Did Greenback need state permission to build the new facility?

The opinion does not address building approvals (architectural review, BEP funding eligibility, code compliance). It addresses only the question of whether the size-minimum statute bars the project. A real construction project will involve those other approvals separately.

Citations

• Tenn. Code Ann. §§ 49-6-401, 49-6-403(b) (with subdivisions A through E)
• 1925 Tenn. Pub. Acts, ch. 115, § 14
• 1957 Tenn. Pub. Acts, ch. 145, § 1
• 1961 Tenn. Pub. Acts, ch. 137
• State ex rel. Weaver v. Ayers, 756 S.W.2d 217 (Tenn. 1988)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-059.pdf

Original opinion text

July 18, 2011
Opinion No. 11-59
Establishment and Maintenance of a Senior High School

QUESTION

Is Greenback Public School, which currently provides classes from kindergarten through the twelfth grade, prohibited by Tenn. Code Ann. § 49-6-403(b)(2)(A) from building a new facility for its high school students because the current average daily attendance of students attending high school at the school is less than three hundred (300) students?

OPINION

No. According to publicly available sources, Greenback Public School was opened in 1921, and from that date going forward established and maintained a high school. Tenn. Code Ann. § 49-6-403(b)(2)(A), the current version of which was enacted in 1961 and which provides that no senior high school shall be established and maintained with fewer than three hundred (300) pupils in average daily attendance, would not apply to Greenback Public School because Tenn. Code Ann. § 49-6-403(b)(2)(D), the current version of which also was enacted in 1961, excludes from the average-daily-attendance requirement "any high school now established." The building of a new facility for Greenback Public School's high school students would not constitute "establish[ing]" an additional high school within the meaning of the statute. Therefore, based on these facts, while the current average daily attendance of students attending high school at the school is less than three hundred (300) students, Greenback Public School is not prohibited by Tenn. Code Ann. § 49-6-403(b)(2)(A) from building a new facility for its high school students.

ANALYSIS

Tenn. Code Ann. § 49-6-403(b) sets forth the requirements for maintaining a senior high school, stating as follows:

(2)(A) No senior high school shall be established and maintained with fewer than three hundred (300) pupils in average daily attendance.

(B) Any senior high school in a state of transition may be initially established with fewer than three hundred (300) pupils in average daily attendance; provided, that as soon as the transition period has been completed, the senior high school shall not have fewer than three hundred (300) pupils in average daily attendance.

(C) Nothing in this part shall prohibit the consolidation of any two (2) or more high schools now established into one (1) high school, even though the combined average daily attendance of the pupils in the consolidated high school is less than that required in this part.

(D) Nothing is this part shall be construed as abolishing any high school now established.

(E) Local boards of education may, in unusual circumstances, establish and maintain high schools with fewer pupils in average daily attendance than is prescribed in this section; provided that prior approval is granted by the commissioner of education and the state board of education upon request of the respective local board of education.

See State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 223-24 (Tenn. 1988). "Senior high schools" are "schools in which are taught any combination of grades corresponding to grade nine through grade twelve (9-12); however, the school must include grade twelve (12)." Tenn. Code Ann. § 49-6-401.

The relevant provisions of Tenn. Code Ann. § 49-6-403 under review were originally enacted by 1925 Tenn. Pub. Acts, ch. 115, § 14. This Act provided that no two-year high school could be established and maintained with fewer than ten (10) high school pupils, and no four-year high school could be established and maintained with fewer than thirty (30) high school pupils. That Act contained the same "grandfather" provision that exists under current law, stating that nothing in the act was to be construed as abolishing "any high school now established." Id.

In 1957, the statute was amended to increase the number of students required in order to establish and maintain a senior high school, providing that no senior high school shall be established and maintained with fewer than seventy-five (75) pupils in average daily attendance. 1957 Tenn. Pub. Acts, ch. 145, § 1. This Act also contained the "grandfather" clause stating that its provisions were not to be construed as abolishing any high schools "now established." Id.

Finally, apparently in response to the continued growth of high school student populations in Tennessee, the General Assembly in 1961 increased the number of pupils required for the establishment and maintenance of a senior high school to the number now specified in Tenn. Code Ann. § 49-6-403(b)(2)(A), providing that no senior high school shall be established and maintained with fewer than three hundred (300) pupils in average daily attendance. 1961 Tenn. Pub. Acts, ch. 137, § 1. However, significantly, Chapter 137 retained the "grandfather" clause, stating that "nothing in this chapter shall be construed as abolishing any high school now established," the language which is currently set forth Tenn. Code Ann. § 49-6-403(b)(2)(D). Section 2 of the Act provided that the Act would take effect from and after July 1, 1961. 1961 Tenn. Pub. Acts, ch. 137, § 2. This law remains in effect today.

The public website for the Greenback Public School reflects that it opened on its present site in the fall of 1921 and has operated a high school continuously since that date. Greenback Public School was the first and only public school on the eastern side of the Tennessee River in Loudon County, thus giving students on that side of the river the opportunity to attend a public high school near their homes instead of choosing between a private school at nearby Morganton and public schools in surrounding counties. Greenback Public School currently has a school population of approximately 660 students and serves the students from kindergarten through the twelfth grade.

Assuming that Greenback Public School was founded in 1921 and has operated a high school continuously since that date, which was well before the requirements contained in the pertinent provisions of § 49-6-403(b)(2) were enacted in 1961, Greenback Public School's senior high school would be exempt from the average daily attendance requirement of Tenn. Code Ann. § 49-6-403(b)(2)(A) by Tenn. Code Ann. § 49-6-403(b)(2)(D). Under such circumstances, the building of a new facility for Greenback Public School's high school students would not constitute "establish[ing]" an additional high school within the meaning of the statute. Therefore, based on these facts, it is the opinion of this Office that, while the current average daily attendance of students attending high school at the school is less than three hundred (300) students, Greenback Public School is not prohibited by Tenn. Code Ann. § 49-6-403(b)(2)(A) from building a new facility for its high school students.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

Requested by:
The Honorable Jimmy Matlock
State Representative
219 War Memorial Building
Nashville, Tennessee 37243