Can the Tennessee legislature exempt one county from a state-wide education law by using a narrow population bracket?

Subject

Opinion No. 13-37, Constitutionality of Population Bracket Exemption to "Move on When Ready Act", May 2, 2013

Plain-English summary

The Move on When Ready Act (Tenn. Code Ann. §§ 49-6-8301 to -8306) lets Tennessee high school students who meet certain criteria graduate early with fewer credits than the State Board of Education typically requires. Two key provisions, §§ 49-6-8303 and 49-6-8304, set the eligibility requirements and forbid the State or local boards from imposing graduation requirements that would block early graduation.

In 2012, the General Assembly passed Chapter 1077, which added a population-bracket exemption to both code sections: the Act "shall not apply in any county having a population of not less than one hundred eighty-three thousand one hundred (183,100) nor more than one hundred eighty-three two hundred (183,200), according to the 2010 federal census or any subsequent census." Only one Tennessee county fit that bracket: Williamson County. So Williamson County was the only county exempt from the Move on When Ready Act.

The AG concluded Chapter 1077 would likely be held unconstitutional as invalid class legislation. The reasoning tracks the general rule for narrow-population brackets: a special carve-out from a generally applicable statewide statute is constitutional only if there's some rational basis (a "distinctive characteristic of that size population") for treating the exempted county differently.

Article I, section 8 of the Tennessee Constitution ("law of the land" clause), Article XI, section 8 ("general laws only" clause), and the federal Equal Protection Clause confer the same protections. Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407, 412 (Tenn. 1995). The Move on When Ready Act is a general law of statewide application, and Chapter 1077 contravenes it by exempting one county. The question is whether any rational basis supports the exemption.

The AG noted no rationale in the statute itself or in the legislative history. No conceivable basis distinguished Williamson County from any other Tennessee county with respect to the goals of the Act (allowing motivated students to graduate early). Chattanooga Metropolitan Airport Authority v. Thompson, 1997 WL 129366 (Tenn. Ct. App. 1997), is the on-point precedent: "even the generous rational basis standard requires that an exclusion based on a population bracket have some relation to a distinctive characteristic of that size population." No such relation appeared for Williamson County, so Chapter 1077 was constitutionally suspect.

Currency note

This opinion was issued in 2013. 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.

The Move on When Ready Act and its 2012 exemption have been amended since 2013. Anyone analyzing a current Tennessee population-bracket bill should pull the current statute and the most recent appellate case law on Article I, section 8 and Article XI, section 8.

Background and statutory framework

The Move on When Ready Act. Tenn. Code Ann. §§ 49-6-8301 to -8306. Permits students who meet certain criteria to graduate from high school early and lets specific qualifying students graduate with fewer credits than the State Board of Education would otherwise require. Two provisions are central:

• § 49-6-8303: requirements for early graduation.
• § 49-6-8304: prohibits State Board or local board from imposing graduation requirements that prevent a qualifying student from completing high school in less than four years.

The 2012 exemption. Chapter 1077 of the 2012 Public Acts added subsections to both §§ 49-6-8303 and 49-6-8304:

This section shall not apply in any county having a population of not less than one hundred eighty-three thousand one hundred (183,100) nor more than one hundred eighty-three two hundred (183,200), according to the 2010 federal census or any subsequent census.

Per the 2010 census, only Williamson County fell within this bracket. So the exemption was Williamson-specific in practice.

The equal protection framework. Article I, section 8 and Article XI, section 8 of the Tennessee Constitution, together with the Fourteenth Amendment Equal Protection Clause, "guarantee to citizens the equal protection of the laws." Brown v. Campbell County, 915 S.W.2d at 412.

Article XI, section 8 provides:

The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.

The federal and state protections confer the same protections and apply the same rules to legislative classifications. Brown. The "law of the land" in Article I, section 8 and "any general law" in Article XI, section 8 mean the same thing: a law must embrace and affect alike all persons in or who may come into the same situation. Harwell v. Leech, 672 S.W.2d 761 (Tenn. 1984); Maney v. State, 74 Tenn. 218 (1880).

Rational basis review. Where no fundamental right or suspect class is involved, classifications are valid if supported by any rational basis. Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003); Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978). The legislature has wide latitude in determining what is "different" and what is "the same." A classification will be upheld "if any state of facts may reasonably be conceived to justify it." Gallaher, 104 S.W.3d at 461. The question is whether the classification has "a reasonable relationship to a legitimate state interest." Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988).

Triggering Article XI, section 8. Riggs v. Burson, 941 S.W.2d 544 (Tenn. 1997), held that the clause is triggered only when the statute "contravene[s] some general law that has mandatory statewide application." The Move on When Ready Act is generally applicable statewide. Chapter 1077 contravenes it for one county. So the clause is triggered.

Population-bracket precedent. Chattanooga Metro. Airport Auth. v. Thompson, 1997 WL 129366 (Tenn. Ct. App. 1997), considered a statute excluding counties in a narrow population bracket from the Tennessee Passenger Transportation Services Act. The court held the exclusion was unconstitutional because no rational basis tied the population range to a distinctive characteristic relevant to the Act. "[E]ven the generous rational basis standard requires that an exclusion based on a population bracket have some relation to a distinctive characteristic of that size population."

Other population-bracket cases reaching similar conclusions: Knoxville's Community Development Corp. v. Knox County, 665 S.W.2d 704 (Tenn. 1984); prior AG opinions Op. 12-72 (July 18, 2012); Op. 87-185 (Dec. 3, 1987); Op. 03-123 (Sept. 25, 2003).

The rationale gap. The AG noted Chapter 1077 contained no recital of a rationale for the exemption, the statute itself was silent on why Williamson County was being singled out, and the legislative history didn't reveal any rationale either. Without a reason connecting the Williamson population range to a distinctive characteristic relevant to the Move on When Ready Act, the classification appears arbitrary. The burden of showing a classification is unreasonable is on the challenger, but if the reviewing court can't see any rational basis at all, the statute fails. Gallaher. The legislature can presumably articulate a reason, and the legislative history is one place a court would look, but the AG found no such rationale.

Common questions

What is a "population bracket" bill?

A bill that defines its scope by reference to a narrow population range, designed in practice to capture exactly one county. The bill technically applies to any county in that range, but the range is chosen specifically. They're used to enact county-specific rules without explicitly naming the county.

Why don't population brackets automatically violate Article XI, section 8?

Because the general-law clause only forbids "suspending" a general law. If the general law itself contemplates variation (as Tenn. Code Ann. § 7-82-307 did for utility districts in Op. 13-22), or if the bracket has some rational basis (a distinctive characteristic of that population size), the bracket can survive. The Williamson exemption from the Move on When Ready Act had neither.

Could the legislature have legitimately exempted Williamson County?

Maybe, with a recital of why Williamson County is different in some way that bears on the Act. Without that articulation, and without any obvious rationale a court could discern, the exemption falls.

Does this opinion mean Williamson County must follow the Move on When Ready Act?

The opinion is advisory; it doesn't strike down Chapter 1077. The AG predicted a court would likely hold the exemption unconstitutional. A definitive ruling would require litigation. In the meantime, Chapter 1077 is on the books and would be applied unless and until a court strikes it.

What if the legislature had given a reason?

The AG noted that the reasonableness doesn't have to appear on the face of the statute. Shelby County Civil Serv. Bd. v. Lively, 629 S.W.2d 15 (Tenn. 1985). But if there's no reason in the statute, no reason in the legislative history, and no conceivable basis the AG (or by extension a reviewing court) could identify, the classification fails. The legislature can articulate reasons; it just didn't here.

Citations

Tenn. Code Ann. §§ 49-6-8301 to -8306 (Move on When Ready Act, especially §§ 49-6-8303, -8304). 2012 Tenn. Pub. Acts, ch. 1077 (the population-bracket exemption). U.S. Const. amend. XIV (Equal Protection). Tenn. Const. art. I, § 8; art. XI, § 8 (general-law clauses). Cases: Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407 (Tenn. 1995); Harwell v. Leech, 672 S.W.2d 761 (Tenn. 1984); Maney v. State, 74 Tenn. 218 (1880); Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003); State v. Tester, 879 S.W.2d 823 (Tenn. 1994); Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978); Doe v. Norris, 751 S.W.2d 834 (Tenn. 1988); Riggs v. Burson, 941 S.W.2d 544 (Tenn. 1997); Chattanooga Metro. Airport Auth. v. Thompson, 1997 WL 129366 (Tenn. Ct. App. 1997); Knoxville's Community Development Corp. v. Knox County, 665 S.W.2d 704 (Tenn. 1984); Shelby County Civil Serv. Bd. v. Lively, 629 S.W.2d 15 (Tenn. 1985). Prior AG opinions: Op. 12-72 (July 18, 2012); Op. 87-185 (Dec. 3, 1987); Op. 03-123 (Sept. 25, 2003).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-037.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

May 2, 2013

Opinion No. 13-37

Constitutionality of Population Bracket Exemption to "Move on When Ready Act"

QUESTION

Chapter 1077 of the 2012 Public Acts (hereinafter "Chapter 1077"), codified at Tenn. Code Ann. §§ 49-6-8303(i) and 49-6-8304(b), exempts from coverage of the "Move on When Ready Act" any county having a population of not less than 183,100 nor more than 183,200 according to the 2010 federal census or any subsequent census. Is Chapter 1077 unconstitutional under Article I, Section 8, or Article XI, Section 8, of the Tennessee Constitution as contravening a general law having mandatory statewide application?

OPINION

Chapter 1077 would likely be found unconstitutional as invalid class legislation.

ANALYSIS

The "Move on When Ready Act," codified at Tenn. Code Ann. §§ 49-6-8301 to -8306, permits Tennessee students who meet certain criteria to graduate early from high school and allows students meeting specific criteria to graduate with fewer credits that are otherwise required by the State Board of Education. Two provisions of the Act, Tenn. Code Ann. §§ 49-6-8303 and 49-6-8304, set forth (1) the specific requirements that must be met in order for a student to qualify for early graduation under the Act and (2) the proviso that neither the State Board of Education nor a local board of education may impose graduation requirements that would prohibit a student who is pursuing early graduation under the Act from completing high school in less than four years.

In 2012, the General Assembly passed Chapter 1077, which amended the Act by adding new subsections to Tenn. Code Ann. §§ 49-6-8303 and 49-6-8304. As a result of Chapter 1077, both of these code sections contain subsections with the following exemption:

This section shall not apply in any county having a population of not less than one hundred eighty-three thousand one hundred (183,100) nor more than one hundred eighty-three two hundred (183,200), according to the 2010 federal census or any subsequent census.

Tenn. Code Ann. §§ 49-6-8303(i), 49-6-8304(b). This population bracket appears to currently only include Williamson County, and Williamson County is thus the only Tennessee county exempted from the Act's coverage.

Article I, Section 8, and Article XI, Section 8, of the Tennessee Constitution as well as the Fourteenth Amendment to the United States Constitution "guarantee to citizens the equal protection of the laws." Brown v. Campbell County Bd. Of Educ., 915 S.W. 2d 407, 412 (Tenn. 1995). The initial provision of Article I, Section 8, of the Tennessee Constitution, generally referenced as the "law of the land" clause, states that individuals shall not be deprived of "liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of . . . life, liberty or property but by the judgment of . . . peers or the law of the land." Tenn. Const. art. I, § 8. Article XI, Section 8, of the Tennessee Constitution provides in relevant part:

The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.

These federal and State constitutional provisions confer the same protections, and they apply the same rules in determining the validity of classifications made in legislative enactments. Brown v. Campbell County Bd. of Educ., 915 S.W.2d at 412. The "law of the land" referred to in Article I, Section 8, and "any general law" within the meaning of the prohibition in Article XI, Section 8, on legislation "inconsistent with the general laws of the land" mean the same thing, namely, that a law must embrace and affect alike all persons who are in, or may come into, the same or similar situation, condition, and circumstances. Harwell v. Leech, 672 S.W.2d 761, 762-63 (Tenn. 1984); Maney v. State, 74 Tenn. 218 (1880).

While these equal protections guarantees require that persons similarly situated be treated alike, not all classifications made by the General Assembly are necessarily prohibited. See Gallaher v. Elam, 104 S.W.3d 455, 461 (Tenn. 2003); State v. Tester, 879 S.W.2d 823, 327-28 (Tenn. 1994). Unless the classification impacts a fundamental right or discriminates as to a suspect class, a classification is valid if it can be supported by any rational basis. Gallaher v. Elam, 104 S.W. 3d at 461-62; Harrison v. Schrader, 569 S.W.2d 822, 825 (Tenn. 1978). A classification will be upheld under the rational basis test "if any state of facts may reasonably be conceived to justify it." Id. The question is "whether the classifications have a reasonable relationship to a legitimate state interest." Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988). If so, there is a presumption of validity.

In order to trigger application of Article I, Section 8, and Article XI, Section 8, a statute must contravene some general law that has mandatory statewide application. Riggs v. Burson, 941 S.W.2d 544, 578 (Tenn. 1997). In this instance, the Act, and specifically Tenn. Code Ann. §§ 49-6-8303 and 49-6-8304, appear to be mandatory and applicable statewide, but for the exemption created by Chapter 1077 for Williamson County at the present time and any county that might subsequently grow into the narrow population exclusions in these statutes. A court therefore likely would conclude that these provisions are laws of general applicability.

The question then is whether a rational basis exists for the narrow population classification created by Chapter 1077 that suspends the general law permitting high school students to graduate early, and with fewer credits, contingent upon certain requirements being met. In Chattanooga Metro. Airport Auth. v. Thompson, No. 03A01-9610-CH-00319, 1997 WL 129366 (Tenn. Ct. App. 1997), the Tennessee Court of Appeals reviewed the constitutionality of a statute excluding counties within a narrowly defined population bracket from the operation of the Tennessee Passenger Transportation Services Act allowing government entities the power to control private passenger-for-hire vehicles. The Court concluded that there was no rational basis for the exclusion, noting that "even the generous rational basis standard requires that an exclusion based on a population bracket have some relation to a distinctive characteristic of that size population." Id. at *3. See also Knoxville's Community Development Corp. v. Knox County, 665 S.W.2d 704, 705 (Tenn. 1984); Tenn. Att'y Gen. Op. 12-72 (July 18, 2012); Tenn. Att'y Gen. Op. 87-185 (Dec. 3, 1987); Tenn. Att'y Gen. Op. 03-123 (Sept. 25, 2003) (all concluding that relatively narrow population classifications were constitutionally suspect under Article XI, Section 8 of the Tennessee Constitution).

This Office is not aware of any reason justifying the population exemption in Tenn. Code Ann. §§ 49-6-8303(i) and 49-6-8304(b). No rationale is cited in the Act or in Chapter 1077, nor does this Office's review of the legislative history of Chapter 1077 reveal any rationale to support the exemption. While the law does not require that a reasonable basis for the classification appear on the face of the legislation, Shelby County Civil Serv. Bd. v. Lively, 629 S.W.2d 15, 18 (Tenn. 1985), this Office cannot identify any rational basis why Williamson County should be treated differently than any other county in the State with respect to the coverage of the "Move on When Ready Act." Absent the existence of a rational basis for the exclusion of Williamson County from the Act, a court would likely hold that the narrow population classifications contained in Tenn. Code Ann. §§ 49-6-8303(i) and 49-6-8304(b) violate Article I, Section 8, and Article XI, Section 8, as invalid class legislation.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

KEVIN STEILING
Deputy Attorney General

Requested by:
The Honorable Dolores Gresham
State Senator
308 War Memorial Building
Nashville, TN 37243