Can a 17-year-old in Tennessee leave high school to enroll in a GED program?

Subject

Opinion No. 12-63, Tennessee's Compulsory School Attendance Requirement, June 13, 2012

Plain-English summary

Senator Andy Berke asked the Tennessee AG whether a 17-year-old enrolled in a state-approved GED program complies with Tennessee's compulsory school attendance law (Tenn. Code Ann. § 49-6-3001), which generally requires children between 6 and 17 to attend public or nonpublic school.

The AG said yes. Section 49-6-3001(c)(2)(B) carves out an express exemption for students enrolled and making satisfactory progress in courses leading to a GED. The local board of education determines whether the student is making satisfactory progress, and the GED-providing institution must report on each enrolled student's progress at least three times a year. If the local board concludes the student is not making satisfactory progress, the student snaps back into the compulsory-attendance rule.

The opinion also reconciles this statute with a Tennessee State Board of Education rule (Tenn. Comp. R. & Regs. 0520-01-03-.06(6)(c)) that ordinarily requires GED candidates to be 18, with 17-year-old testing permitted on local superintendent recommendation. The AG saw no conflict: the rule governs taking the GED test, while the statute governs enrollment in GED courses. Both rely on local-level evaluation.

Currency note

This opinion was issued in 2012. 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.

Historical background and statutory framework

Compulsory school attendance

Tenn. Code Ann. § 49-6-3001(c)(1) requires every parent, guardian, or legal custodian to ensure that children "between six (6) years of age and seventeen (17) years of age, both inclusive" attend public or nonpublic school. Failure carries the penalties identified in the rest of the chapter.

The GED exemption

Section 49-6-3001(c)(2)(B) carves out:

Subdivision (c)(1) does not apply to a child who:

. . . .

(B) Is enrolled and making satisfactory progress in a course leading to a general educational development certificate (GED) from a state-approved institution or organization or who has obtained a GED. Any institution or organization that enrolls a child who is under eighteen (18) years of age shall provide a report to the local board of education at least three (3) times each year relative to the progress of all such persons under eighteen (18) years of age. If the local board of education determines any child under eighteen (18) years of age is not making satisfactory progress, then the child shall be subject to subdivision (c)(1); . . .

The exemption has three components: (1) enrolled in a GED course from a state-approved institution or organization; (2) making satisfactory progress as determined by the local board of education; and (3) the institution must report on the student at least three times a year. If progress flags, the local board can return the student to the regular compulsory attendance rule.

The state board rule

Tenn. Comp. R. & Regs. 0520-01-03-.06(6)(c) provides:

A candidate must be eighteen (18) years of age before being eligible to take the GED test. A (17) [sic] year old may be allowed to take the examination upon the recommendation of the local school superintendent. The superintendent may require written documentation from the applicant to support this recommendation. This rule shall not be used to circumvent participation in the regular high school program.

The companion rule (Tenn. Comp. R. & Regs. 0520-01-03-.03(10)(c)(2)) reflects the statutory carve-out: a child must attend school until age 18 unless, among other things, "[h]e or she is enrolled in a course of instruction leading to a GED."

Reconciliation

The state board rule sets eligibility to take the GED test (recommendation by local superintendent for a 17-year-old). The statute and the parallel rule address enrollment in GED courses (satisfactory progress as determined by the local board). The two rules operate on different stages of the process and rely on the local board of education in both cases. The AG found no conflict (citing Wright v. Tennessee Peace Officer Standards and Training Comm'n for the principle that an agency cannot adopt rules inconsistent with the underlying statute, and Hobbs v. Hobbs for a related limitation, but concluding the rule and statute were consistent on these facts).

The opinion also cited Kentucky-Tennessee Clay Co. v. Huddleston for the standard rule that statutory exceptions delineate the extent of general provisions; courts cannot diminish an express exception.

Common questions

My 17-year-old wants to drop out of high school and pursue a GED. Is that legal under Tennessee law?

According to this opinion, yes, as long as the student enrolls in a state-approved GED program and the local board of education determines satisfactory progress. Confirm with the local school district and verify current statutory text.

What does "satisfactory progress" mean?

The statute leaves the call to the local board of education. The GED-providing institution must report on each student under 18 at least three times a year. If the local board decides progress is not satisfactory, the student returns to the regular compulsory-attendance rule.

Can my 17-year-old actually take the GED test before turning 18?

The state board rule (Tenn. Comp. R. & Regs. 0520-01-03-.06(6)(c)) allows it on the recommendation of the local superintendent. The superintendent can require written documentation. The rule also says this exception cannot be used to circumvent the regular high school program.

Who counts as a "state-approved institution or organization"?

That's a separate determination by the state. Programs typically include adult education centers and accredited community-college-based GED programs. Verify a specific program's status with the Tennessee Department of Education.

What if my child stops attending the GED program?

If the local board of education determines the student is not making satisfactory progress, the student becomes subject again to subdivision (c)(1) and must return to school. The parent or guardian can then face the compulsory-attendance penalties for non-compliance.

Does this still apply today?

The opinion analyzed the 2012 version of § 49-6-3001 and the state board rules. Statutory provisions and administrative rules can change. Anyone navigating compulsory attendance issues should verify current law.

Citations

• Tenn. Code Ann. § 49-6-3001 (compulsory school attendance)
• Tenn. Code Ann. § 49-6-3001(c)(1) (the rule)
• Tenn. Code Ann. § 49-6-3001(c)(2)(B) (GED exemption)
• Tenn. Comp. R. & Regs. 0520-01-03-.06(6)(c) (GED test eligibility)
• Tenn. Comp. R. & Regs. 0520-01-03-.03(10)(c)(2) (attendance rule)
• Kentucky-Tennessee Clay Co. v. Huddleston, 922 S.W.2d 539 (Tenn. 1995)
• Wright v. Tennessee Peace Officer Standards and Training Comm'n, 277 S.W.3d 1 (Tenn. Ct. App. 2008)
• Hobbs v. Hobbs, 27 S.W.3d 900 (Tenn. 2000)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-063.pdf

Original opinion text

June 13, 2012
Opinion No. 12-63
Tennessee's Compulsory School Attendance Requirement

QUESTION

Does a 17-year-old student's enrollment in state-approved general educational development ("GED") programs under Tenn. Code Ann. § 49-6-3001(c)(2)(B) violate the compulsory school attendance requirements set forth at Tenn. Code Ann. § 49-6-3001(c)(1)?

OPINION

No. Tenn. Code Ann. § 49-6-3001(c)(2)(B) allows a 17-year-old student to enroll in state-approved GED courses in fulfillment of Tennessee's compulsory attendance requirement provided that, in the judgment of the local board of education, the student continues to make satisfactory progress in the GED courses.

ANALYSIS

The question posed concerns the interpretation of Tenn. Code Ann § 49-6-3001 and related rules promulgated by the Tennessee State Board of Education ("the Board"). Tenn. Code Ann. § 49-6-3001 generally requires all children between 6 and 17 years of age to attend public or nonpublic school. The pertinent portions of Tenn. Code Ann. § 49-6-3001(c)(1) state:

Every parent, guardian or other legal custodian residing within this state having control or charge of any child or children between six (6) years of age and seventeen (17) years of age, both inclusive, shall cause the child or children to attend public or nonpublic school, and in event of failure to do so, shall be subject to the penalties provided in this part. . . .

Tenn. Code Ann. § 49-6-3001(c)(2)(B) provides the following exemption to this compulsory school attendance requirement:

Subdivision (c)(1) does not apply to a child who:

. . . .

(B) Is enrolled and making satisfactory progress in a course leading to a general educational development certificate (GED) from a state-approved institution or organization or who has obtained a GED. Any institution or organization that enrolls a child who is under eighteen (18) years of age shall provide a report to the local board of education at least three (3) times each year relative to the progress of all such persons under eighteen (18) years of age. If the local board of education determines any child under eighteen (18) years of age is not making satisfactory progress, then the child shall be subject to subdivision (c)(1); . . .

Thus Tenn. Code Ann. § 49-6-3001(c)(2)(B) specifically establishes an exception to the compulsory attendance requirement where a student is enrolled and making satisfactory progress, as determined by the local board of education, in a course leading to a GED certificate from a state-approved institution or organization. See Kentucky-Tennessee Clay Co. v. Huddleston, 922 S.W.2d 539, 543 (Tenn. 1995) (stating the rule of statutory construction that an exception generally delineates the extent of the general provision and thus courts are precluded from diminishing an express exception).

The Board cannot establish a rule for the administration of this statute that voids, or is inconsistent with, this statutory exception. Wright v. Tennessee Peace Officer Standards and Training Comm'n, 277 S.W.3d 1, 15 (Tenn. Ct. App. 2008) (citing Hobbs v. Hobbs, 27 S.W.3d 900, 903 n. 1 (Tenn. 2000)). In any event, this Office finds no existing conflict between this statute and the Board's current rules related to this statute. Specifically, the Board has adopted rules governing the taking of the GED examination, which provide in pertinent part:

A candidate must be eighteen (18) years of age before being eligible to take the GED test. A (17) [sic] year old may be allowed to take the examination upon the recommendation of the local school superintendent. The superintendent may require written documentation from the applicant to support this recommendation. This rule shall not be used to circumvent participation in the regular high school program.

Tenn. Comp. R. & Regs. 0520-01-03-.06(6)(c).

No conflict exists between this rule and Tenn. Code Ann. § 49-6-3001(c)(2)(B). The rule addresses the circumstances under which a 17-year-old may take the GED test (i.e., the student must be recommended by the local school superintendent), whereas the statute addresses a student that is enrolled in GED courses (i.e., a student enrolled in GED courses must demonstrate "satisfactory progress" as determined by the local board of education). Both the rule and statute rely on representatives of the local board of education to evaluate eligibility for 17-year-old students to enroll in GED courses or take the GED test, and the statute affirms that any student who either is enrolled in GED courses or has obtained a GED is excluded from the compulsory attendance requirement of Tenn. Code Ann. § 49-6-3001(c)(1). This symmetry between the Board rule and the statute is confirmed by Tenn. Comp. R. & Regs. 0520-01-03-.03(10)(c)(2), which states:

A child must attend school until his/her 18th birthday unless:

. . . .

2. He or she is enrolled in a course of instruction leading to a GED;

Accordingly, both Tenn. Code Ann. § 49-6-3001(c)(2)(B) and the Board rules permit 17-year-old students to enroll in state-approved GED programs, and such enrollment excludes these students from compulsory school attendance, provided the local board of education determines that such students are making satisfactory progress in their GED courses.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

KEVIN STEILING
Deputy Attorney General

Requested by:
The Honorable Andy Berke
State Senator
310 War Memorial Building
Nashville, TN 37243-0029