If a Tennessee local school board fails to act on an amended charter school application, is it approved or denied?

Subject

Opinion No. 12-67, Approval or Denial of Amended Charter School Applications, July 5, 2012

Plain-English summary

Gary D. Nixon, Executive Director of the Tennessee State Board of Education, asked what happens when a local board of education fails to act on an amended charter school application under Tenn. Code Ann. § 49-13-108(a)(2). Is the application deemed approved or denied?

The AG said: under the law in effect from July 1, 2012, the amended application is deemed approved. Tenn. Code Ann. § 49-13-108(a)(2), as revised by Chapter 1021 of the 2012 Tennessee Public Acts, requires the local board to "deny or approve the amended application" within thirty days; failure to do so means automatic approval.

Before that change, the situation was different. The pre-2012 version of the statute provided automatic approval only for inaction on initial applications under § 49-13-108(a)(1). It did not extend the automatic-approval mechanism to amended applications under (a)(2), so failure to act on a previously denied and amended application meant the application remained denied (State v. Casper, on the canon that when the legislature uses particular language in one section and omits it in another, the omission is presumed intentional).

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

The Charter Schools Act framework

Tennessee's Public Charter Schools Act of 2002 (Tenn. Code Ann. §§ 49-13-101 to -134) creates a process by which a sponsor applies to a local board of education to operate a charter school. The local board approves or denies the application by resolution.

Pre-2012 statute

Section 49-13-108(a)(1) (2011 Supp.) provided that a local board's failure to act within sixty days on a charter application resulted in automatic approval. Subsection (a)(2) gave the sponsor of a denied application fifteen days to submit an amended application addressing the deficiencies, and gave the local board fifteen days to "either deny or approve the amended application." But subsection (a)(2) was silent about what happened if the local board did nothing within those fifteen days.

The AG read that asymmetry as deliberate: the legislature provided automatic approval for inaction on initial applications but not for inaction on amended ones. Under State v. Casper (quoting Bryant v. Genco Stamping & Mfg. Co.), "where the legislature includes particular language in one section of the statute but omits it in another section of the same act, it is presumed that the legislature acted purposefully." So pre-July-1, 2012, a board's silence on an amended application left it denied.

The 2012 change

Chapter 1021 of 2012 Tenn. Pub. Acts changed the rule. Section 49-13-108(a)(2) now provides:

The local board of education shall have thirty (30) days either to deny or to approve the amended application. Should the local board of education fail to either approve or deny the amended application within thirty (30) days, the amended application shall be deemed approved.

Chapter 1021 took effect July 1, 2012. From that date forward, inaction on an amended application produces automatic approval, the same default as for initial applications.

Resulting alignment

After Chapter 1021, both initial and amended charter applications carry an automatic-approval default for local board inaction. The difference is just the time window: sixty days for initial applications (§ 49-13-108(a)(1)), thirty days for amended applications (§ 49-13-108(a)(2)).

Common questions

My local board approved my initial application by inaction last year. Is that still good?

Under § 49-13-108(a)(1), the initial-application automatic-approval rule applies if the local board doesn't act within sixty days of receiving the completed application. The opinion did not address whether prior automatic approvals are subject to revisit.

Our amended application was denied in March 2012 by inaction. Are we now approved because of Chapter 1021?

According to this opinion, Chapter 1021 took effect July 1, 2012. It would not retroactively transform a prior denial into an approval. The opinion treats the pre-change rule as resulting in denial, and the new rule applies only from July 1, 2012, forward.

How is "completed application" defined?

The opinion does not define it. The Charter Schools Act and any related State Board rules would govern what constitutes a completed application for the sixty-day clock.

What constitutes "action" by the local board?

The statute requires the board to "deny or approve" by resolution at a regular or special-called meeting. The Charter Schools Act spells out what the local board must do for a formal action.

What if the board denies the amended application without explanation?

For the initial-application denial, the statute requires the board to state grounds "in writing, specifying objective reasons for the denial," and gives the sponsor fifteen days to amend. The amended-application rule does not by itself require detailed written reasons, though general administrative-procedure practices may apply.

Is this still how Tennessee handles amended charter applications?

This opinion analyzes the law as of July 5, 2012, after Chapter 1021 took effect on July 1, 2012. The Charter Schools Act has been amended several times. Verify current statutory text and any later AG opinions or court decisions.

Citations

• Tenn. Code Ann. §§ 49-13-101 to -134 (Tennessee Public Charter Schools Act of 2002)
• Tenn. Code Ann. § 49-13-108(a)(1) (initial-application automatic approval)
• Tenn. Code Ann. § 49-13-108(a)(2) (amended-application rule)
• 2012 Tenn. Pub. Acts, ch. 1021
• State v. Casper, 297 S.W.3d 676 (Tenn. 2009)
• Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761 (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/op12-067.pdf

Original opinion text

July 5, 2012
Opinion No. 12-67
Approval or Denial of Amended Charter School Applications

QUESTION

If a local board of education, in considering an amended charter school application under Tenn. Code Ann. § 49-13-108(a)(2), fails "either to deny or to approve the amended application," will the application be deemed approved or will it be deemed denied?

OPINION

The amended application is deemed approved pursuant to Tenn. Code Ann. § 49-13-108(a)(2), as revised by 2012 Tenn. Pub. Acts, ch. 1021 effective July 1, 2012.

ANALYSIS

Prior to the 2012 legislative session, the Tennessee Public Charter Schools Act, codified at Tenn. Code Ann. § 49-13-101 to -134, delineated the procedure for the approval or denial of a charter school application for the creation of a public charter school as follows:

(1) The local board of education shall have the authority to approve applications to establish public charter schools and renew public charter school agreements. The local board of education shall rule by resolution, at a regular or special called meeting, on the approval or denial of a charter application within sixty (60) days of receipt of the completed application. Should the local board of education fail to either approve or deny a charter application within the sixty (60) day time limit prescribed in this subdivision (a)(1), the application shall be deemed approved.

(2) The grounds upon which the local board of education based a decision to deny a public charter school application must be stated in writing, specifying objective reasons for the denial. Upon receipt of the grounds for denial, the sponsor shall have fifteen (15) days within which to submit an amended application to correct the deficiencies. The local board of education shall have fifteen (15) days either to deny or to approve the amended application.

Tenn. Code Ann. § 49-13-108(a)(1) & (2) (2011 Supp.).

The statute thus stated that the local board's failure to timely approve or deny an initial charter application caused the application to be approved; the statute did not address what would result if the board failed to timely act on a denied application which was subsequently amended and resubmitted. Compare Tenn. Code Ann. § 49-13-108(a)(1) (2011 Supp.) with Tenn. Code Ann. § 49-13-108(a)(2) (2011 Supp.). In 2012, Tenn. Code Ann. § 49-13-108(a)(2) was amended by Chapter 1021 to provide that should the local board of education fail to act on an amended application within thirty days, the amended application would be deemed approved, stating as follows:

The local board of education shall have thirty (30) days either to deny or to approve the amended application. Should the local board of education fail to either approve or deny the amended application within thirty (30) days, the amended application shall be deemed approved.

2012 Tenn. Pub. Acts, ch. 1021. Chapter 1021 by its terms is effective on July 1, 2012. Id. at § 12.

Prior to July 1, 2012, a local board of education's inaction on an amended and resubmitted charter application would have left the application denied, given that Tenn. Code Ann. § 49-13-108(a)(2), unlike Tenn. Code Ann. § 49-13-108(a)(1), did not provide for automatic approval when a local board of education failed to timely act on the amendment of a previously denied application. See State v. Casper, 297 S.W.3d 676, 693 (Tenn. 2009) (quoting Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn. 2000)) (stating the general rule of statutory construction that "where the legislature includes particular language in one section of the statute but omits it in another section of the same act, it is presumed that the legislature acted purposefully in including or excluding that particular subject").

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

MELISSA A. BRODHAG
Assistant Attorney General

Requested by:
The Honorable Gary D. Nixon
Executive Director
State Board of Education
710 James Robertson Parkway
9th Floor, Andrew Johnson Tower, Nashville 37243-1050