Is Tennessee's charter school waiver statute an unconstitutional delegation of legislative power?

Subject

Opinion No. 14-14, Authority to Waive Charter School Requirements, January 31, 2014

Plain-English summary

Rep. Craig Fitzhugh asked whether Tenn. Code Ann. § 49-13-105, which lets the Commissioner of Education or a local education agency (LEA) waive state rules or statutes that hinder a public charter school's ability to meet its goals or mission, unconstitutionally delegates legislative power.

The AG said no. The statute gives sponsors of proposed charter schools a way to ask either the LEA or the Commissioner of Education to waive "any state board rule or statute that inhibits or hinders the proposed charter school's ability to meet its goals or comply with its mission statement." But the statute also contains twelve carve-outs that cannot be waived: federal and state civil rights; federal, state, and local health and safety; public records; immunizations; weapons on school grounds; background checks and fingerprinting; special education; student due process; parental rights; assessment and accountability; open meetings; and the requirement of equivalent instructional time.

The Tennessee Constitution, Article II, § 3, prohibits the General Assembly from delegating "purely legislative" powers (the discretion to decide what the law shall be). But the legislature may delegate to agencies and local governments the authority to implement legislative policy, including the power to promulgate rules and grant case-specific waivers, as long as the statute supplies sufficient standards to enable both the agency and the courts to determine whether the agency is carrying out the legislature's intent. Bean v. McWherter, 953 S.W.2d 197, 199 (Tenn. 1997).

The AG found three reasons the charter waiver provision satisfies Bean:

1. Standards tied to mission. The waiver authority is tied to whether the rule or statute inhibits or hinders the charter school's ability to meet its statutorily defined "mission" and "goals" — which themselves have been clearly articulated in the school's application, reviewed and approved by the chartering authority, and incorporated into a binding contract. Tenn. Code Ann. §§ 49-13-104(1), (2); 49-13-107(b)(1); 49-13-108(a)(2); 49-13-110(a). The mission and goals are not the Commissioner's invention; they come from the legislature's framework and the school's pre-approved application.

2. Express off-limits categories. Twelve specific categories cannot be waived (§ 49-13-105(b)(1)-(12)). The legislature has thus identified, by name, the substantive areas that policy considerations require the Commissioner to honor regardless of the school's mission. Other parts of the Act (e.g., § 49-13-111) impose additional compliance requirements that effectively can't be waived.

3. Legislative-purpose anchor. The Act's purpose, set out in § 49-13-102(b), is to provide "an alternative means within the public school system" for educational outcomes "by allowing the establishment and maintenance of public charter schools that operate within a school district structure but are allowed maximum flexibility to achieve their goals." The waiver authority directly implements that purpose.

The AG also cited Boyce v. Tennessee Peace Officer Standards and Training Commission, 354 S.W.3d 737, 742-43 (Tenn. Ct. App. 2010), which upheld a similar delegation where the POST Commission was directed to establish "minimum standards and curriculum requirements" in accordance with a general policy. Public education is "clearly a complex area that requires just such expertise and flexibility."

The opinion is limited to facial challenges. Specific as-applied challenges (a particular waiver in a particular context that someone argues exceeds the standards) are outside its scope.

Currency note

This opinion was issued in 2014. 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.

Background and statutory framework

The Tennessee Public Charter Schools Act of 2002. Tenn. Code Ann. §§ 49-13-101 et seq. Allows the establishment of public charter schools within the state's public-school system.

§ 49-13-105 (waiver provision). A charter school sponsor may apply to the LEA or the Commissioner for waiver of a state board rule or statute that inhibits or hinders the school's mission or goals. Twelve categories cannot be waived.

Mission and goals as the standard. § 49-13-107(b)(1) requires a charter application to include a statement defining the mission and goals, including the academic focus. §§ 49-13-104(1), (2) define "academic focus" as "a distinctive, thematic program" and "academic plan" as the platform supporting that focus. The chartering authority must approve the application (§ 49-13-108(a)(2)), and the approval is reduced to a written agreement (§ 49-13-110(a)).

State Board waiver rules. Tenn. Comp. R. & Regs. Chapter 0520-14-2 governs waiver requests. § 0520-14-2-.02(4) requires "detailed documentation of the grounds for requesting the waiver" and "specific evidence" showing how the rule or statute hinders the mission. § 0520-14-2-.04(1) limits waivers to one academic year, renewable.

Article II, § 3. The Tennessee Constitution vests legislative power exclusively in the General Assembly. The General Assembly cannot delegate purely legislative power (the discretion to decide what the law shall be), but can delegate the power to implement legislative policy.

Bean v. McWherter. The test for constitutional delegation is "whether the statute contains sufficient standards or guidelines to enable both the agency and the courts to determine if the agency is carrying out the legislature's intent." Standards need not be express; they can be reasonably ascertained from the statutory scheme as a whole. Detailed legislation may not be feasible "when the subject matter requires an agency's expertise and flexibility to deal with complex and changing conditions."

Gallaher v. Elam. Statutes are presumed constitutional. Doubts are resolved in favor of constitutionality.

Common questions

What kinds of things can the Commissioner waive under this provision?

The opinion does not list specific waivers. It describes the limit instead: the Commissioner or LEA can waive only a state board rule or statute that inhibits or hinders the school's ability to meet the goals and mission set out in its approved charter application, and may not waive any of the twelve categories in § 49-13-105(b) or other compliance requirements the Act marks as essential.

Why are some categories off-limits?

The twelve carved-out categories (civil rights, health and safety, special education, etc.) reflect policy decisions the legislature made about what's non-negotiable. A "thematic academic program" is not a reason to bypass anti-discrimination law, IDEA compliance, or background checks for teachers.

What does a charter sponsor have to show to get a waiver?

Under Tenn. Comp. R. & Regs. 0520-14-2-.02(4): detailed documentation of the grounds for requesting the waiver, plus specific evidence showing how the current rule or statute inhibits or hinders the school's ability to meet its mission or comply with its goals.

How long does a waiver last?

One academic year, renewable. Tenn. Comp. R. & Regs. 0520-14-2-.04(1).

Could a specific waiver still be unconstitutional even if the statute is constitutional?

Yes. The opinion explicitly leaves as-applied challenges open. A waiver that goes beyond mission-related need or improperly waives a non-waivable category would face its own challenge.

Does this opinion bind a court?

No. AG opinions are persuasive, not binding. A court evaluating an actual challenge would conduct its own analysis. The opinion summarizes the framework.

Citations

Constitutional: Tenn. Const. art. II, § 3. Statutory: Tenn. Code Ann. § 49-13-102(b); § 49-13-104(1), (2); § 49-13-105; § 49-13-105(b); § 49-13-107(b)(1); § 49-13-108(a)(2); § 49-13-110(a); § 49-13-111. Regulations: Tenn. Comp. R. & Regs. 0520-14-2-.02(4); 0520-14-2-.04(1). Cases: Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003); Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1997); Family Golf v. Metropolitan Gov't of Nashville, 964 S.W.2d 254 (Tenn. Ct. App. 1997); Boyce v. Tennessee Peace Officer Standards and Training Commission, 354 S.W.3d 737 (Tenn. Ct. App. 2010); Lobelville Special School Dist. v. McCanless, 381 S.W.2d 273 (Tenn. 1964). Prior AG opinion: Op. Tenn. Atty. Gen. 03-107 (Aug. 27, 2003).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-014.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL

January 31, 2014

Opinion No. 14-14

Authority to Waive Charter School Requirements

QUESTION

Does Tenn. Code Ann. § 49-13-105 constitute an unconstitutional delegation of legislative authority relative to charter schools?

OPINION

No. The waiver authority related to charter schools in Tenn. Code Ann. § 49-13-105 is consistent with the General Assembly's power to delegate authority to implement legislative policy and is defensible from attack as an unconstitutional delegation of legislative authority in violation of Tenn. Const. art. II, § 3.

ANALYSIS

Tenn. Code Ann. § 49-13-105, part of the Tennessee Public Charter Schools Act of 2002 (the Act), allows the sponsor of a proposed public charter school to apply to either the local education agency ("LEA") or the Commissioner of Education ("Commissioner") for waivers from statutes or rules that inhibit or hinder a school's ability to meet its goals or comply with its proposed mission. Specifically, Tenn. Code Ann. § 49-13-105 provides:

(a) Public charter schools shall be part of the state program of public education.

(b) Except where waivers are otherwise prohibited in this chapter, the sponsor of a proposed public charter school may apply to either the LEA or to the commissioner of education for a waiver of any state board rule or statute that inhibits or hinders the proposed charter school's ability to meets its goals or comply with its mission statement. Neither the LEA nor the commissioner shall waive regulatory or statutory requirements related to:

(1) Federal and state civil rights;
(2) Federal, state, and local health and safety;
(3) Federal and state public records;
(4) Immunizations;
(5) Possession of weapons on school grounds;
(6) Background checks and fingerprinting of personnel;
(7) Federal and state special education services;
(8) Student due process;
(9) Parental rights;
(10) Federal and state student assessment and accountability;
(11) Open meetings; and
(12) At least the same equivalent time of instruction as required in regular public schools.

Tenn. Code Ann. § 49-13-105.

As provided in the statute, charter schools may seek waiver only of a state board rule or statute that inhibits or hinders the school's ability "to meet its goals or comply with its proposed mission." A charter school's "mission" and "goals" are a required part of the school's application for charter status. The Act requires a proposed charter school to file an application with the chartering authority that includes, among other information and documents, a "statement defining the mission and goals of the proposed charter school, including the proposed charter school's academic focus." Id. § 49-13-107(b)(1). "Academic focus" is further defined as a "distinctive, thematic program," and "academic plan" is defined as "a platform that supports the academic focus of the charter school," including "instructional goals and methods" as well as "materials and curriculum." Id. § 49-13-104(1), (2).

The chartering authority has the statutory power to review and approve charter school applications, including by necessity approving the school's mission and goals. Id. § 49-13-108(a)(2). Approval by the chartering authority takes the form of a written agreement signed by the sponsor and the chartering authority and which contains all components of the application, including the mission and goals. Id. § 49-13-110(a). Accordingly, a charter school's mission and goals must be clearly stated in the school's application, are subject to review and approval by the chartering authority, and are incorporated into a binding contract between the school and the authority.

With respect to charter school waiver requests, Chapter 0520-14-2 of the Rules of the State Board of Education set forth procedures for requesting and reviewing such requests. Waiver requests must include "detailed documentation of the grounds for requesting the waiver" as well as "specific evidence showing how the state board rule or statute currently inhibits or hinders the proposed charter school's ability to meet its goals or comply with its mission statement." Tenn. Comp. R. & Regs. 0520-14-2-.02(4). All waivers are granted for one academic year and may be renewed by filing a new request. Tenn. Comp. R. & Regs. 0520-14-2-.04(1).

The waiver authority delegated to the Commissioner and LEAs is limited in significant ways by the Act. First, the Commissioner or LEA must determine that the rule or statute in question inhibits or hinders the school's goals or mission, which have been previously described and approved by a clearly defined statutory procedure. Furthermore, the section of the Act that grants waiver authority also contains a long list of regulatory and statutory requirements that cannot be waived. See Tenn. Code Ann. § 49-13-105(b)(1)-(12). In addition, that same section notes that waivers may be "otherwise prohibited in this chapter." In that regard, Tenn. Code Ann. § 49-13-111 contains a significant number of compliance requirements applicable to charter schools that the Commissioner or LEA would be unlikely, if not unable, to waive.

The question posed is whether the waiver language in Tenn. Code Ann. § 49-13-105 is an unconstitutional delegation of legislative authority. In evaluating the constitutionality of a statute, courts begin with the presumption that an act of the General Assembly is constitutional, and every doubt is resolved in favor of the statute's constitutionality. Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003).

The legislative power of the State of Tennessee is vested exclusively in the General Assembly. Tenn. Const. art. II, § 3. Under Article II, Section 3, the General Assembly may not delegate powers that are "purely legislative." Elam, 104 S.W.3d at 464 (explaining that the General Assembly cannot delegate "the exercise of the legislature's discretion as to what the law shall be"). The General Assembly may, consistent with Article II, Section 3, delegate discretion to administrative agencies or local governments to promulgate rules and enforce laws. Bean v. McWherter, 953 S.W.2d 197, 199 (Tenn. 1997); see also Family Golf v. Metropolitan Gov't of Nashville, 964 S.W.2d 254, 257 (Tenn. Ct. App. 1997). Thus, the General Assembly may delegate the authority to implement the expressed policy of particular statutes, including the power to promulgate rules and regulations that have the effect of law in an agency's area of operations. Elam, 104 S.W.3d at 464.

The Supreme Court has held that the test for determining whether a legislative delegation of power is constitutional is "whether the statute contains sufficient standards or guidelines to enable both the agency and the courts to determine if the agency is carrying out the legislature's intent." Bean, 953 S.W.2d at 199. The legislature is not required to set out "explicit guidance standards" for the delegated authority; rather, "[g]overning standards need not be express provided such standards can be reasonably ascertained from the statutory scheme as a whole." Id. at 198-99. The Court further recognizes that detailed or specific legislation may not be required or feasible "when the subject matter requires an agency's expertise and flexibility to deal with complex and changing conditions." Id. at 199; see also Boyce v. Tennessee Peace Officer Standards and Training Commission, 354 S.W.3d 737, 742-43 (Tenn. Ct. App. 2010).

It is likely that a court would hold that Tenn. Code Ann. § 49-13-105 provides "sufficient standards and guidelines" to allow the agency to carry out the General Assembly's intent relative to charter schools. First, the waiver authority is consistent with the legislative purposes of the Act. Tenn. Code Ann. § 49-13-102(b) provides:

It is the intention of this chapter to provide an alternative means within the public school system for ensuring accomplishment of the necessary outcomes of education by allowing the establishment and maintenance of public charter schools that operate within a school district structure but are allowed maximum flexibility to achieve their goals.

Tenn. Code Ann. § 49-13-102(b) (emphasis added).

Second, the waiver statute contains "a 'sufficient basic standard' accompanied by a definite and certain policy and rule of action." Bean, 953 S.W.2d at 199 (citing Lobelville Special School Dist. v. McCanless, 381 S.W.2d 273, 274 (Tenn. 1964)). The statutory language unambiguously allows the Commissioner to waive both rules and statutes through the exercise of sound judgment. Prior to granting a waiver, the Commissioner must determine that, without the waiver, the statute or rule being waived would inhibit or hinder the charter schools ability to meet its goals or comply with its mission statement. The school's goals and mission in turn will have been clearly articulated, reviewed, approved and reduced to writing through the statutorily-mandated application approval process. Furthermore, Tenn. Code Ann. § 49-13-105 prohibits the Commissioner from waiving specifically enumerated regulatory and statutory requirements in subsection (b) and other parts of the Act that the legislature has deemed essential to the operation of all charter schools. These restrictions on the waiver authority supplement the legislative guidance on granting waivers and reinforce the conclusion that the Act provides a "sufficient basic standard" under Bean. See also Op. Tenn. Atty. Gen. 03-107 (Aug. 27, 2003).

Finally, the Supreme Court in Bean held that "[d]etailed or specific legislation may neither be required nor feasible when the subject matter requires an agency's expertise and flexibility to deal with complex or changing conditions." Bean, 953 S.W.2d at 199. The state program of public education in Tennessee covers an entire title of the Tennessee Code consisting of over 1,100 pages of text and notes. Public education is clearly a complex area that requires just such expertise and flexibility. Cf. Boyce, 354 S.W.3d at 743.

In conclusion, the limited waiver authority provided under Tenn. Code Ann. § 49-13-105 facilitates the Act's purpose, as set forth in Tenn. Code Ann. § 49-13-102(b), and is consistent with the constitutional test enumerated in Bean. Accordingly, the waiver authority is consistent with the General Assembly's constitutional power to provide discretion to agencies in implementing legislative policy.

ROBERT E. COOPER, JR.
Attorney General and Reporter

KEVIN STEILING
Deputy Attorney General

LESLIE ANN BRIDGES
Senior Counsel

Requested by:

The Honorable Craig Fitzhugh
State Representative
33 Legislative Plaza
Nashville, Tennessee 37243-0182