Can a Tennessee priority school in the Achievement School District add new grade levels on its own?

Plain-English summary

Tennessee created the Achievement School District (ASD) in 2010 as a state takeover mechanism for the lowest-performing 5% of public schools. Once a school is placed in the ASD, the commissioner of education becomes the operational authority over that school. The commissioner can run the school directly or contract with a charter operator or other manager.

Rep. Harry Brooks asked whether a school assigned to the ASD could expand the grade levels it serves on its own initiative. AG Slatery answered no across five variations of the question. The reasoning is structural: once a priority school is placed in the ASD, the school no longer has independent decision-making authority over its operations. Adding grades is a structural decision about operations, so it must come from the commissioner, not the school.

The opinion further addressed whether State Board of Education Rule 0520-14-03-.01 could change that answer. The rule grants charter schools an automatic waiver from many education statutes when they are approved. The AG concluded the waiver is bounded by Tenn. Code Ann. § 49-13-105(b), which limits waivers to provisions that hinder the charter school's ability to meet its mission. The commissioner's direct-operation authority over ASD schools is not such a hindrance; it is the very mechanism designed to restore performance. So the waiver does not extend to it.

Currency note

This opinion was issued in 2017. 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 Achievement School District has gone through significant programmatic and structural review since 2017. Anyone evaluating ASD authority over school operations today should pull the current versions of Tenn. Code Ann. §§ 49-1-602 and 49-1-614, the current State Board of Education rules, and any post-2017 ASD reforms.

Common questions

Q: What is the Achievement School District?
A: The ASD is an organizational unit of the Tennessee Department of Education, administered by the commissioner of education. It was created by the First to the Top Act of 2010 to improve the state's lowest-performing schools. It is primarily made up of "priority schools," meaning schools with academic achievement levels in the bottom 5% statewide.

Q: Who decides whether to place a school in the ASD?
A: When State Board of Education intervention is required to improve achievement levels, the commissioner of education may place a priority school within the ASD's jurisdiction. The placement decision is the commissioner's, not the school's.

Q: Once placed, can a school expand by itself?
A: No. The school itself has no independent decision-making authority. The commissioner has the authority to operate the school directly or contract with a third party to manage day-to-day operations. Either way, structural changes like adding grade levels would have to flow from the commissioner, not the school.

Q: Does it matter whether the ASD runs the school directly or contracts the school out?
A: No. The opinion addresses this expressly: the answer is the same regardless of whether the commissioner directly operates the school or has contracted with an individual, governmental entity, or nonprofit to manage it. The school itself does not regain independent decision-making authority by virtue of being managed under contract.

Q: What if the school's performance has improved?
A: Improvement does not transfer authority back to the school. The opinion is clear that a school in the ASD lacks independent control regardless of how its academic performance has trended, and regardless of whether it remains classified as a "priority" school.

Q: What if the new grade is grade 9, and the receiving high school is or isn't itself a priority school?
A: The status of the feeder high school does not change the analysis either. The school in the ASD still cannot add grade 9 without commissioner action.

Q: Doesn't State Board Rule 0520-14-03-.01 give charter schools a free pass on most education statutes?
A: It grants an automatic waiver, but the scope of the waiver is bounded. Section 49-13-105(b) limits the waiver to statutes and rules that "inhibit or hinder" the charter school's ability to meet its goals or comply with its proposed mission. The commissioner's direct-operation authority over ASD schools is the mechanism for restoring performance; it is not an obstacle to the school's mission, so the waiver does not reach it.

Background and statutory framework

The First to the Top Act of 2010 created the Achievement School District. It addressed a chronic problem of the previous decade: a tail of public schools whose performance metrics were so low that local turnaround efforts had failed. The legislature placed those schools under a state-level operator, the ASD, with the commissioner of education in operational charge.

Section 49-1-614(a) places the ASD under the commissioner. Section 49-1-614(b) gives the commissioner the choice of operating ASD schools directly or contracting them out. Section 49-1-602(b)(2) defines "priority school" as one in the bottom 5% statewide. Section 49-1-602(b)(2)(C) ties placement of a priority school in the ASD to State Board intervention.

When charter operators run ASD schools, they fall under Tennessee's charter school statutes as well. Section 49-13-105(b) is the key limit on charter waivers: a charter school is not exempt from statutes or rules whose application is necessary to its mission, only from those that "inhibit or hinder" the school's mission. The commissioner's operational authority over the school is part of the mission machinery, not an inhibitor.

The opinion's logic stitches these provisions together: the school as an institution does not retain operational autonomy in the ASD; the commissioner does; the commissioner's autonomy is preserved against the charter waiver. So a unilateral grade-level expansion by the school is outside any of the available authorities.

Citations

• Tenn. Code Ann. § 49-1-602(b)(2), -1-602(b)(2)(C) (priority schools, ASD placement)
• Tenn. Code Ann. § 49-1-614(a), -614(b), -614(c) (ASD oversight; direct operation; placement)
• Tenn. Code Ann. § 49-13-105(b) (scope of charter waivers)
• Tenn. Comp. R. & Regs. 0520-14-03-.01 (State Board of Education)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-001.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
January 5, 2017

Opinion No. 17-01

Authority of a Priority School to Add Additional Grades

Question 1
Assume the Achievement School District (ASD) has assigned Jones School, a priority school serving grades five through eight, to the ASD. May Jones School subsequently add grades other than grades five through eight to those that the school serves?

Opinion 1
No. Once a school has been placed in the Achievement School District the school itself may not add grades because it has no independent control over its operations while it is in the ASD.

Question 2
Does the answer to question 1 depend on whether Jones School is directly operated by the ASD or the commissioner has contracted with an individual or individuals, a governmental entity, or nonprofit entity to manage the day-to-day operation of Jones School?

Opinion 2
No. Once a school has been placed in the Achievement School District the school itself may not add grades because it has no independent control over its operations while it is in the ASD.

Question 3
Does the answer to question 1 depend on whether the performance of Jones School has improved while it has been assigned to the ASD or Jones School remains a priority school?

Opinion 3
No. Once a school has been placed in the Achievement School District the school itself may not add grades because it has no independent control over its operations while it is in the ASD.

Question 4
Does the answer to question 1 depend on whether Jones School seeks to add grade nine to those grades it serves and the local education agency's high school that Jones School's students will attend for grade nine is or is not a priority school?

Opinion 4
No. Once a school has been placed in the Achievement School District the school itself may not add grades because it has no independent control over its operations while it is in the ASD.

Question 5
Does Rule 0520-14-03-.01 of the Rules of the State Board of Education in any way affect your answer to question 1?

Opinion 5
No.

ANALYSIS

The Achievement School District ("ASD") is an organizational unit of the Tennessee Department of Education that is administered by the commissioner of education. Tenn. Code Ann. § 49-1-614(a). The ASD was created by Tennessee's First to the Top Act of 2010 as a way to improve the state's lowest performing schools. The ASD is primarily comprised of priority schools, i.e., those schools with academic achievement levels ranking in the bottom five percent in the state. Tenn. Code Ann. § 49-1-602(b)(2). When intervention by the State Board of Education is necessary to improve academic achievement levels, the commissioner may place a priority school within the jurisdiction of the ASD. See Tenn. Code Ann. §§ 49-1-602(b)(2)(C), -614(c).

The commissioner is authorized to provide oversight for the operation of priority schools within the jurisdiction of the ASD. Tenn. Code Ann. § 49-1-614(a). The commissioner has "the authority to directly operate . . . any or all schools placed in the ASD, including, but not limited to, providing direct services to students." Id., § 49-1-614(b). Alternatively, the commissioner may contract with third parties to operate and manage the schools. Id. Either way, the schools themselves have no independent decision-making authority over their operations while they are in the ASD. Since a school within the ASD has no independent decision-making authority, it follows that a school may not itself add grades after it has been placed in the ASD.

State Board of Education Rule 0520-14-03-.01 does not change the analysis or affect Opinion 1. Rule 0520-14-03-.01 does not alter the fact that a priority school cannot add grade levels without permission from the commissioner. Rule 0520-14-03-.01(1)(b), which applies only to charter schools, provides for the automatic waiver of "all education statutes and rules of the state board or department of education, except those listed in T.C.A. § 49-13-105 or included by reference" when a charter school is approved. But the scope of the waiver is limited to statutes and rules that inhibit or hinder the charter school's ability "to meet its goals or comply with its proposed mission." Tenn. Code Ann. § 49-13-105(b). Thus, the automatic waiver would not extend to a waiver of the commissioner's authority "to directly operate . . . any or all schools placed in the ASD," Tenn. Code Ann. § 49-1-614(b), since the very purpose of ASD placement and commissioner oversight is to restore, not hinder, a school's ability to meet its goals and fulfill its mission.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

TAYLOR W. JENKINS
Assistant Attorney General

Requested by:
The Honorable Harry Brooks
State Representative
117 War Memorial Building
Nashville, Tennessee 37243-0119

[Footnote 1: The letter requesting this opinion referred to "Rule 0120-14-03-.01" of the Rules of the State Board of Education. However, we assume that the intended reference was Rule 0520-14-03-.01 since there is no "Rule 0120-14-03-.01" in the Rules of the State Board of Education and since the Board's rules are in 0520.]