Is Tennessee's 2012 law letting school districts sponsor charter schools constitutional?

Subject

Opinion No. 12-68, Local Education Agencies as Sponsors of Charter Schools, July 6, 2012

Plain-English summary

Representative G.A. Hardaway asked the Tennessee AG whether Chapter 1065 of the 2012 Tennessee Public Acts, which lets local education agencies (LEAs) sponsor charter schools while making the state board of education the chartering authority for those schools, is constitutionally suspect.

The AG concluded it is not. The Tennessee Constitution gives the General Assembly the power to provide for and regulate the public school system (Tenn. Const. art. XI, § 12), and the General Assembly's plenary authority is broad within constitutional limits (Tennessee Small School Systems v. McWherter; Hamblen County v. City of Morristown). Charter schools have generally survived constitutional challenge in other states (California, New Jersey, Ohio). The opinion is a facial analysis only; the AG did not rule out potential "as applied" challenges that could arise in specific circumstances.

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

What Chapter 1065 did

Chapter 1065 of 2012 Tenn. Pub. Acts amended part of the Tennessee Public Charter Schools Act of 2002 (Tenn. Code Ann. §§ 49-13-101 to -134) to add:

Notwithstanding the provisions of 49-13-104(7) to the contrary, an LEA [Local Education Agency] may be the sponsor of a charter school. If an LEA seeks to sponsor a charter school, then the state board of education shall serve as the chartering authority.

So a school district can sponsor a charter school, but the state board of education serves as the chartering authority. The AG noted that Chapter 1065 precludes an LEA from filling both roles.

The "sponsor" definition

Tenn. Code Ann. § 49-13-104(7) defines "sponsor" to include "any individual, group, or other organization filing an application in support of the establishment of a public charter school." The statute excludes for-profit entities, private elementary or secondary schools, post-secondary institutions not accredited by the Southern Association of Colleges and Schools, and religious or church schools (and those promoting a religious denomination's agenda). The AG noted the existing definition does not technically exclude LEAs since they fall outside any listed exception. But Chapter 1065 clarifies the matter and separates sponsor from chartering authority when the LEA is the sponsor.

Why no facial constitutional problem

The Tennessee Constitution at Article XI, § 12 vests the General Assembly with the power to "provide for the maintenance, support and eligibility standards of a system of free public schools." That includes plenary authority to establish and maintain rules for the public school system (Tennessee Small School Systems v. McWherter). The AG found "nothing constitutionally suspect on the face of Chapter 1065."

The AG also drew on out-of-state authority where charter school regimes survived constitutional challenge: Wilson v. State Bd. of Educ. (California, 2000); In re Grant of Charter School Application of Englewood on Palisades Charter School (N.J. 2000); Scipio-Derrick v. Davy (N.J. Super. Ct. App. Div. 2010); State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ. (Ohio 2006). The opinion also cited an Andrew Broy article discussing constitutional challenges to charter school laws.

What the opinion does not address

The AG noted that "as-applied" challenges depend on specific factual contexts the opinion could not anticipate (citing Waters v. Farr for the distinction between facial and as-applied challenges). So the opinion is limited to facial review and leaves room for fact-specific constitutional issues to arise.

Chartering authority context

Before Chapter 1065, chartering authorities for Tennessee charter schools were limited to LEAs and the achievement school district under Tenn. Code Ann. § 49-1-614. The 2012 amendment adds the state board of education as chartering authority when an LEA itself is the sponsor.

Common questions

Why does the state board of education review charter applications when an LEA is the sponsor?

Chapter 1065 assigns the state board of education the chartering role when an LEA sponsors a charter school. The AG noted that this keeps the LEA from serving as both sponsor and chartering authority.

Are LEA-sponsored charter schools handled differently in operation?

The opinion did not analyze operational differences. It addresses the constitutional question on the face of Chapter 1065.

Could a court still strike down a specific LEA-sponsored charter under the Tennessee or federal Constitution?

The opinion leaves that question open. It analyzes Chapter 1065 on its face and says it cannot anticipate the facts of possible "as applied" challenges, which are outside its scope.

Could a for-profit entity sponsor a charter school under Chapter 1065?

No. Tenn. Code Ann. § 49-13-104(7) excludes for-profit entities from being sponsors. Chapter 1065 allows LEAs to sponsor charter schools but did not change that limitation.

Could a religious school sponsor a charter school?

No. The same § 49-13-104(7) excludes "religious or church school or promote the agenda of any religious denomination or religiously affiliated entity."

Is the AG opinion binding on courts?

No. AG opinions are persuasive authority, not binding precedent. The opinion's facial-constitutionality conclusion would carry weight in litigation but does not preclude a court from reaching a different result.

Citations

• Tenn. Const. art. XI, § 12
• Tenn. Code Ann. §§ 49-13-101 to -134 (Public Charter Schools Act of 2002)
• Tenn. Code Ann. § 49-13-104(2) (chartering authority)
• Tenn. Code Ann. § 49-13-104(7) (sponsor definition)
• Tenn. Code Ann. § 49-13-106(2) (prior chartering authorities)
• Tenn. Code Ann. § 49-1-614 (achievement school district)
• 2012 Tenn. Pub. Acts, ch. 1065
• Tennessee Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1983)
• Hamblen County v. City of Morristown, 584 S.W.2d 673 (Tenn. Ct. App. 1979)
• Wilson v. State Bd. of Educ., 88 Cal. Rptr. 2d 745 (Cal. Ct. App. 2000)
• In re Grant of Charter School Application of Englewood on Palisades Charter School, 753 A.2d 387 (N.J. 2000)
• Scipio-Derrick v. Davy, 2 A.3d 387 (N.J. Super. Ct. App. Div. 2010)
• State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E.2d 1148 (Ohio 2006)
• Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009)
• Tenn. Att'y Gen. Op. 08-32 (Feb. 21, 2008)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-068.pdf

Original opinion text

July 6, 2012
Opinion No. 12-68
Local Education Agencies as Sponsors of Charter Schools

QUESTION

Is Chapter 1065 of the 2012 Tennessee Public Acts, which allows local education agencies (LEAs) to sponsor charter schools, constitutionally suspect?

OPINION

No.

ANALYSIS

Chapter 1065 of the 2012 Tennessee Public Acts ("Chapter 1065") amends part of the Tennessee Public Charter Schools Act of 2002, codified at Tenn. Code Ann. §§ 49-13-101 to -134 ("Charter Schools Act"). The Charter Schools Act authorizes the creation and operation of public charter schools in the State of Tennessee. Tenn. Att'y Gen. Op. 08-32 (Feb. 21, 2008). Public charter schools are created by a charter agreement between the sponsor of the charter school and the chartering authority. Tenn. Code Ann. §§ 49-13-104(2), -104(7), 107, & -108.

Chapter 1065 adds the following section to Title 49, Chapter 13 of the Tennessee Code:

> Notwithstanding the provisions of 49-13-104(7) to the contrary, an LEA [Local Education Agency] may be the sponsor of a charter school. If an LEA seeks to sponsor a charter school, then the state board of education shall serve as the chartering authority.

2012 Tenn. Pub. Acts, ch. 1065.

Chapter 1065 thus allows a "LEA" to sponsor the creation of a charter school, notwithstanding the definition of "sponsor" contained in Tenn. Code Ann. § 49-13-104(7). That section defines "sponsor" to include:

> any individual, group, or other organization filing an application in support of the establishment of a public charter school; provided, however, that a sponsor cannot be a for-profit entity, a private elementary or secondary school, a post-secondary institution not accredited by the Southern Association of Colleges and Schools, a religious or church school or promote the agenda of any religious denomination or religiously affiliated entity.

Tenn. Code Ann. § 49-13-104(7).

Arguably, the existing definition of "sponsor" in Tenn. Code Ann. § 49-13-104(7) does not exclude LEAs, given that a LEA does not technically fall within any of the listed exceptions to being a sponsor. Nonetheless, Chapter 1065 clarifies that LEAs may be sponsors and further provides that, when an LEA is the sponsor of a charter school, the chartering authority for that school is the state board of education. Chapter 1065 thus precludes a LEA from being both a sponsor and the chartering authority for a charter school.¹

The changes made by Chapter 1065 to Tennessee's Charter Schools Act are within the State of Tennessee's broad authority to administer and operate Tennessee's public education system. The Tennessee Constitution vests the General Assembly with the power to "provide for the maintenance, support and eligibility standards of a system of free public schools." Tenn. Const. Art. XI, § 12. To accomplish this task, the General Assembly has plenary power to establish and maintain rules for the system of public schools in the state, within the limits of both the Tennessee and federal Constitutions. See Tennessee Small School Systems v. McWherter, 851 S.W.2d 139, 140-41 (Tenn. 1983); Hamblen County v. City of Morristown, 584 S.W.2d 673, 675 (Tenn. Ct. App. 1979). This Office is not aware of any provision of either the Tennessee or federal Constitution that would be violated by permitting an LEA to sponsor a charter school. Indeed other state jurisdictions have generally rejected constitutional challenges to a state's inclusion of charter schools in its system of public education. See Wilson v. State Bd. of Educ., 88 Cal. Rptr. 2d 745, 747-56 (Cal. Ct. App. 2000); In re Grant of Charter School Application of Englewood on Palisades Charter School, 753 A.2d 387, 388-98 (N.J. 2000); Scipio-Derrick v. Davy, 2 A.3d 387, 389-400 (N.J. Super. Ct. App. Div. 2010); State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E.2d 1148, 1151-66 (Ohio 2006). See generally Andrew Broy, Comment, Charter Schools and Education Reform: How State Constitutional Challenges Will Alter Charter School Legislation, 79 N.C. L. Rev. 493 (Jan. 2001).

Accordingly, this Office finds nothing constitutionally suspect on the face of Chapter 1065.²

¹ Prior to the passage of Chapter 1065, the only chartering authorities were either LEAs or the achievement school district under Tenn. Code Ann. § 49-1-614 that approved, renewed or decided not to revoke a public charter school application or agreement. See Tenn. Code Ann. §§ 49-13-106(2) & -108 (2011 Supp.).

² This Office cannot effectively anticipate all possible factual situations in which Charter 1065 might be applied or “as applied” challenges that might develop against Charter 1065. See generally Waters v. Farr, 291 S.W.3d 873, 922-23 (Tenn. 2009) (Koch, J., concurring in part and dissenting in part) (discussing in depth distinctions between “as applied” and “facial” constitutional challenges). Accordingly, such “as applied” challenges are outside the scope of this opinion.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ADAM B. FUTRELL
Assistant Attorney General

Requested by:
The Honorable G.A. Hardaway
Representative
22 Legislative Plaza
Nashville, TN 37243-0192