Would adding 'as the elected representatives of the people' to Tennessee's public schools clause free the General Assembly from equal protection limits on how it funds schools?

Plain-English summary

Tennessee's constitution contains a "public schools clause" in article XI, § 12, requiring the General Assembly to "provide for the maintenance, support and eligibility standards of a system of free public schools." HJR 493 in the 2016 session proposed to add the italicized words: "The General Assembly as the elected representatives of the people shall provide for the maintenance, support and eligibility standards of a system of free public schools in such manner as the General Assembly may determine."

A state representative asked whether passing HJR 493 would weaken or eliminate the equal protection limits on how the legislature funds and structures public schools, equal protection limits that had been the basis for the Tennessee Small Schools line of cases requiring substantially equal educational opportunity statewide.

The AG concluded the proposed language would not change those limits. The added words were redundant: legislators are already, by definition, elected representatives of the people, and the existing public schools clause already implicitly leaves the manner of implementation to the legislature. Even setting redundancy aside, the equal protection guarantees in article I, § 8 and article XI, § 8 sit outside the public schools clause and would continue to constrain any legislation enacted under it.

Currency note

This opinion was issued in 2016. 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

Tennessee's constitution combines a duty (a free system of public schools) with general equal protection guarantees. The public schools clause in article XI, § 12 commits the General Assembly to maintain, support, and set eligibility standards for free public schools.

The equal protection limits sit elsewhere. Article XI, § 8 bars the legislature from suspending general laws for the benefit of particular individuals or granting privileges not extended to others similarly situated. Article I, § 8 (the law-of-the-land clause) is Tennessee's analogue to federal due process and is part of the same equal-protection complex. The Tennessee Supreme Court has long read these two provisions as coextensive with the federal Equal Protection Clause and as guaranteeing "equal privileges and immunities for all those similarly situated." Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993).

The Small Schools cases used those provisions to require the legislature to fund public education in a way that affords "substantially equal educational opportunities." 851 S.W.2d at 153; see also 894 S.W.2d 734 (Tenn. 1995). Those rulings sat under the equal protection clauses, not under the public schools clause itself.

That framing is what made the AG's answer relatively straightforward. The opinion gave two reasons.

The added language is redundant. The General Assembly is, by article II, § 3, vested with the legislative power and consists of a Senate and House "both dependent on the people." Members are elected; they can act in no other capacity than as representatives of the people. Foster v. Roberts, 219 S.W. 729 (Tenn. 1919). So the phrase "as the elected representatives of the people" does not add an authority the General Assembly did not already have. Similarly, "in such manner as the General Assembly may determine" merely restates what is already implicit in the public schools clause: the constitution leaves implementation details to the legislature.

Even if substantive, the equal protection limits would still apply. The General Assembly's authority to legislate, however broad, "is always subject to and limited by the provisions and requirements of the Tennessee and federal Constitutions." Quinn v. Hester, 186 S.W. 459 (Tenn. 1916); Smiddy v. Memphis, 203 S.W. 512 (Tenn. 1918). Amending the public schools clause to grant the legislature broader implementation discretion would not amend article I, § 8 or article XI, § 8. The equal protection clauses would continue to forbid arbitrary classifications and require similarly situated students to be treated similarly, just as they did before HJR 493 was proposed.

The opinion did not opine on whether HJR 493 was a wise amendment or how courts would interpret it if adopted alongside other constitutional changes. It addressed only the narrow question of whether HJR 493, on its own, would change the equal protection landscape.

Common questions

Q: Would HJR 493 have overturned the Small Schools funding-equity cases?
A: No. Those cases rested on Tennessee's equal protection clauses (article I, § 8 and article XI, § 8), not on the public schools clause. Amending only the public schools clause would leave the constitutional basis for those rulings intact.

Q: What did 'as the elected representatives of the people' add?
A: Nothing of legal substance, in the AG's view. Legislators are elected by definition. The Tennessee Constitution already vests legislative power in a General Assembly "dependent on the people." Tenn. Const. art. II, § 3.

Q: What about 'in such manner as the General Assembly may determine'?
A: Also redundant. The existing public schools clause requires the General Assembly to provide for free public schools but does not prescribe how. Implementation was already a legislative prerogative.

Q: Could a future constitutional amendment override Tennessee's equal protection clauses?
A: An amendment that expressly modified article I, § 8 or article XI, § 8 could. HJR 493 did not propose to amend either of those provisions, so it left them intact.

Q: Is an AG opinion binding on a court interpreting an adopted amendment?
A: No. AG opinions are advisory. A court interpreting the amended constitution would not be bound by this opinion, although it could find the analysis persuasive.

Citations and references

Constitutional provisions (as cited in the opinion):

• Tenn. Const. art. XI, § 12 (public schools clause)
• Tenn. Const. art. XI, § 8 (general laws)
• Tenn. Const. art. I, § 8 (law of the land)
• Tenn. Const. art. II, § 3 (vesting of legislative power)
• HJR 493, 109th Gen. Assem. (2016)

Cases:

• Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993)
• Tennessee Small Sch. Sys. v. McWherter, 894 S.W.2d 734 (Tenn. 1995)
• Foster v. Roberts, 219 S.W. 729 (Tenn. 1919)
• Richardson v. Young, 125 S.W. 664 (Tenn. 1910)
• Quinn v. Hester, 186 S.W. 459 (Tenn. 1916)
• Smiddy v. Memphis, 203 S.W. 512 (Tenn. 1918)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-011.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 29, 2016
Opinion No. 16-11
Proposed Constitutional Amendment to Public Schools Clause, Tenn. Const. art. XI, § 12

Question
Would the language, if adopted, in HJR 493, 109th Gen. Assem. 2016, affect the equal
protection provisions of article I, § 8, or article XI, § 8, of the Tennessee Constitution?

Opinion
No. The proposed amendatory language does not change the meaning of the public schools
clause (article XI, § 12) of the Tennessee Constitution, and would not affect the equal protection
provisions of article I, § 8 or article XI, § 8, of the Tennessee Constitution, which would still limit,
as they do now, the authority of the General Assembly to determine how to provide for free public
education in Tennessee pursuant to the public schools clause.

ANALYSIS

The public schools clause (article XI, § 12) of the Tennessee Constitution recognizes the
importance of education to the State and its citizens and requires the General Assembly to provide
for a system of free public schools as follows:

The General Assembly shall provide for the maintenance, support and eligibility
standards of a system of free public schools.

House Joint Resolution 493, 109th Gen. Assem. 2016, proposes to amend the public
schools clause by adding the italicized language:

The General Assembly as the elected representatives of the people shall provide
for the maintenance, support and eligibility standards of a system of free public
schools in such manner as the General Assembly may determine.

You have asked whether the addition of the italicized language, if made part of the
Constitution as an amendment to article XI, § 12, would "affect" the equal protection provisions
of the Tennessee Constitution. We take the question to be whether the addition of the italicized
language would allow the General Assembly to provide for a system of free public schools without
having to take into consideration the limits and constraints otherwise imposed on law-making by
those equal protection provisions.

The Tennessee Constitution guarantees "equal protection," i.e., equal privileges and
immunities for all those similarly situated. It does so by limiting the power of the General
Assembly in two ways. First, 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." Tenn. Const. art. XI, § 8. Second, "no man shall be . . .
disseized of his freehold, liberties or privileges . . . or deprived of his life, liberty or property but
by the judgment of his peers or the law of the land." Id., art. I, § 8.

These equal protection provisions of the Tennessee Constitution require the legislature to
perform its obligation to provide for free public schools in a nondiscriminatory way. Tennessee
Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 153, (Tenn. 1993). In other words, the legislature
is required to maintain and support a system of free public schools that affords substantially equal
educational opportunities. Tennessee Small Sch. Sys. v. McWherter, 894 S.W.2d 734, 738 (Tenn.
1995).

The amendatory language proposed in HJR 493, if adopted, would do nothing to change
the fact that any legislation enacted in furtherance of the public schools clause must comply with
the equal protection guarantees of the Tennessee Constitution. We reach that conclusion for two
reasons.

First, the language that HJR 493 proposes to add to the public schools clause does not
materially change the meaning of that clause. The members of the General Assembly are elected
by the qualified voters of the State and ipso facto are acting as representatives of the people
whenever they engage in the legislative process. See Tenn. Const. art. II, § 3 (vesting the
legislative authority of Tennessee in "a General Assembly, which shall consist of a Senate and
House of Representatives, both dependent on the people") and Foster v. Roberts, 219 S.W. 729,
730 (Tenn. 1919) (the legislature acts as representatives of the people). It is, therefore, redundant
to add that the General Assembly "as the elected representatives of the people" shall provide for
free public schools. The General Assembly cannot provide for public schools in any capacity other
than as representatives of the people. Similarly, it is superfluous to add that the General Assembly
shall provide for free public schools "in such manner as the General Assembly shall determine."
It is already implicit in the current version of article XI, § 12, that the General Assembly determines
the manner in which to provide for the required system of free public education.

In short, the proposed amendments to the public schools clause of the Tennessee
Constitution do not substantively change that clause. For that reason alone, the language proposed
by HJR 493 would not, if adopted, affect the equal protection provisions of the Tennessee
Constitution.

Second, while the Tennessee Constitution vests in the General Assembly the broad
authority to make, order, and repeal the laws, Richardson v. Young, 125 S.W. 664 (Tenn. 1910),
that authority is not unlimited. The authority of the legislature is always subject to and limited by
the provisions and requirements of the Tennessee and federal Constitutions. Quinn v. Hester, 186
S.W. 459, 460 (Tenn. 1916); Smiddy v. Memphis, 203 S.W. 512, 514 (Tenn. 1918) ("[T]here has
never been a doubt in this State of the power of the legislature to do all acts not forbidden by the
State Constitution, or the Constitution of the United States, expressly or by necessary implication"
(emphasis added)). "As the representatives of the people the Legislature has the power to pass
such laws as are not directly or impliedly in contravention of the mandates of the Constitution."
Foster v. Roberts, 219 S.W. 729, 730 (Tenn. 1919) (emphasis added). The equal protection
provisions of the Tennessee Constitution "forbid" certain kinds of legislation; the legislature does
not have the power to pass laws that contravene the mandates of the equal protection provisions.

Accordingly, even assuming that the amendments proposed by HJR 493 make some
substantive change in the public schools clause, they do not alter the fact that the General Assembly
is subject to and constrained by the equal protection provisions of the Tennessee Constitution in
determining the manner in which to fulfill its duties under the public schools clause, even as that
clause would be amended by HJR 493. For this reason, too, HJR 493 does not affect the equal
protection provisions of the Tennessee Constitution. Those equal protection provisions would
continue to limit the ways in which the General Assembly could implement the public schools
clause; any legislation enacted pursuant to the public schools clause, even if that clause were
amended as proposed by HJR 493, would still have to comply with the equal protection provisions
of the Tennessee Constitution.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Bill Dunn
State Representative
115 War Memorial Building
Nashville, Tennessee 37243