Can Tennessee Lottery proceeds pay Advanced Placement (AP) exam fees for high school students?

Plain-English summary

A state senator asked whether net proceeds from the Tennessee Education Lottery could be used to pay the College Board's Advanced Placement (AP) exam fees for high school students. The AG said no.

The constraint comes from the Tennessee Constitution. Article XI, § 5 authorizes a state lottery only if the net proceeds are "allocated to provide financial assistance to citizens of this state to enable such citizens to attend post-secondary educational institutions located within this state." The AG read the words "to attend" as a temporal and causal restriction: the financial assistance must be for costs incurred while attending college, not for high school activities that may or may not lead to college.

AP exam fees fail on three counts. First, students take AP exams while in high school, before any college attendance. Second, taking the exam does not guarantee college attendance, college credit, or in-state college attendance; whether and how AP scores translate to college credit varies widely by school and subject (UT-Knoxville accepts a 3 on AP Biology for 4 credits but requires a 5 on AP Computer Science; Vanderbilt and MTSU often require higher scores or grant no credit at all). Third, the cost-of-attendance statute, Tenn. Code Ann. § 49-4-902(8), defines what lottery funds can pay for as "tuition, mandatory fees, room and board, books and other educational expenses" determined by a postsecondary financial aid office; AP fees are neither tuition nor a mandatory fee.

The AG contrasted AP fees with dual enrollment grants under Tenn. Code Ann. § 49-4-930, which are constitutional uses of lottery proceeds. Dual enrollment requires the high school student to actually attend and take a course at a Tennessee post-secondary institution, satisfying the constitutional "to attend" requirement directly.

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.

Background and statutory framework

Tennessee voters added the lottery clause to the state constitution in 2002 to permit a state-run lottery dedicated to higher education financial assistance. Article XI, § 5 reads, in pertinent part, that the legislature may authorize a state lottery only "if the net proceeds of the lottery's revenues are allocated to provide financial assistance to citizens of this state to enable such citizens to attend post-secondary educational institutions located within this state."

The legislature implemented that constitutional authorization in two places: Tenn. Code Ann. §§ 4-51-101 to -136 (organizing the Tennessee Education Lottery itself) and §§ 49-4-901 to -943 (the scholarship and grant programs funded by lottery proceeds). Tenn. Code Ann. § 49-4-901 states that "[n]et proceeds of the state lottery shall be used exclusively for the purposes set out in the Constitution of Tennessee, Article XI, § 5 and this part." Section 49-4-902(8) defines "cost of attendance" as "the combined cost of tuition, mandatory fees, room and board, books and other educational expenses as determined by the financial aid office of the eligible postsecondary institution."

The AG's analysis applied the basic constitutional interpretation rules in Estate of Bell v. Shelby County Health Care Corp., 318 S.W.3d 823 (Tenn. 2010), and Barrett v. Tennessee Occupational Safety and Review Commission, 284 S.W.3d 784 (Tenn. 2009): the text is the primary guide, and the ordinary and inherent meaning of the words controls.

Applying that rule, the phrase "to attend" in article XI, § 5 carries its ordinary temporal meaning: while attending college. Costs of activities that occur before college attendance and do not certainly lead to it are outside the constitutional grant. AP exams fit that description. The AG cited a previous opinion, Tenn. Att'y Gen. Op. 11-20 (Mar. 4, 2011), for the point that "financial assistance" under article XI, § 5 is limited to assistance that helps a citizen pay the costs to attend a post-secondary institution.

Common questions

Q: Could the legislature authorize lottery proceeds to cover AP fees if it wanted to? A: Not without a constitutional amendment. The legislature's authority comes from article XI, § 5, which constrains how lottery proceeds may be allocated. A statute purporting to fund AP fees from lottery proceeds would conflict with that constraint.

Q: What about non-lottery state funding for AP fees?
A: That's a different question. The constitutional restriction in article XI, § 5 applies to lottery proceeds. The state could appropriate general fund money to subsidize AP fees if it wished; this opinion does not address that.

Q: Are dual enrollment grants different from AP fees because of who actually administers them? A: The distinction is doctrinal, not administrative. Dual enrollment grants pay for the student to actually take a college course at a Tennessee post-secondary institution. The student is "attending" a Tennessee college at that moment. AP fees pay for a high school exam that may, eventually, translate to college credit at some school somewhere.

Q: What if a Tennessee high school student takes the AP exam, scores a 5, and uses the credit at UT-Knoxville? A: The post-hoc benefit doesn't change the constitutional analysis. At the time the AP fee is paid, the student is not attending a post-secondary institution. The constitutional rule looks at when the assistance is provided.

Q: Has this analysis been challenged?
A: AG opinions are advisory. A future case could come out differently if a court read "to attend" more broadly, perhaps treating pre-college academic preparation as an enabling cost of attendance. The opinion itself acknowledged that AP credit might let a student "advance through college more quickly and, therefore, at a reduced cost," but treated that benefit as too indirect to count.

Citations and references

Constitutional and statutory provisions (as cited in the opinion):

• Tenn. Const. art. XI, § 5
• Tenn. Code Ann. §§ 4-51-101 to 4-51-136
• Tenn. Code Ann. §§ 49-4-901 to 49-4-943
• Tenn. Code Ann. § 49-4-901
• Tenn. Code Ann. § 49-4-902(8)
• Tenn. Code Ann. § 49-4-930

Cases:

• Estate of Bell v. Shelby Cty. Health Care Corp., 318 S.W.3d 823 (Tenn. 2010)
• Barrett v. Tennessee Occupational Safety and Review Commission, 284 S.W.3d 784 (Tenn. 2009)

Prior AG opinion:

• Tenn. Att'y Gen. Op. 11-20 (Mar. 4, 2011)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-010.pdf

Original opinion text

Use of lottery proceeds for Advanced Placement examination fees for high school students

Question
Is payment of Advanced Placement examination fees for high school students from net proceeds of the Tennessee Lottery allowable under article XI, § 5, of the Tennessee Constitution?

Opinion
No.

ANALYSIS

Article XI, § 5, of the Tennessee Constitution allows the legislature to authorize a state lottery

if the net proceeds of the lottery's revenues are allocated to provide financial assistance to citizens of this state to enable such citizens to attend post-secondary educational institutions located within this state.

Article XI, § 5, further provides that any such state lottery "shall be implemented and administered uniformly throughout the state in such manner as the legislature, by general law, deems appropriate."

The Legislature has authorized a state education lottery, Tenn. Code Ann. §§ 4-51-101 through 136, and has enacted legislation dealing with the use of state lottery proceeds and establishing scholarship and grant programs to provide financial assistance to students with lottery proceeds. See Tenn. Code Ann. §§ 49-4-901 through 943. "Net proceeds of the state lottery shall be used exclusively for the purposes set out in the Constitution of Tennessee, Article XI, § 5 and this part." Tenn. Code Ann. § 49-4-901. The grants and scholarships established by the Legislature cover, to one extent or another, the "cost of attendance" at a postsecondary institution of education, which means "the combined cost of tuition, mandatory fees, room and board, books and other educational expenses as determined by the financial aid office of the eligible postsecondary institution." Tenn. Code Ann. § 49-4-902(8).

Advanced Placement (AP) examinations for high school students are voluntary standardized tests administered by the College Entrance Examination Board (the "College Board"), a non-profit corporation with its principal place of business in New York. The College Board charges a fee, currently $93, for each AP examination.

Currently, the College Board offers AP courses and examinations in 38 subject areas ranging from AP Art History to AP Calculus BC to AP Spanish. If a student takes an AP examination and scores well enough, the student may be able to earn credit and/or advanced placement in college. The AP examination itself is scored on a scale of 1 to 5, with a score of 5 being the highest and representing that a student is "extremely well qualified" in the subject matter and score of 1 indicating "no recommendation."

Many colleges will grant credit and advanced placement if a student receives a score of 3, 4, or 5 on an AP examination. But not all colleges accept AP examination scores, and, if they do, the score level they accept varies from school to school and from subject matter to subject matter. For example, at the University of Tennessee-Knoxville a student who receives a 3 on the AP Biology examination would be eligible to receive 4 college credits, while a student taking the AP Computer Science examination would need a minimum score of 5 to receive 4 college credits. On the other hand, a student receiving a 3 on an AP examination would generally not be entitled to any college credit at Middle Tennessee State University or Vanderbilt University.

The text of a constitutional provision is the primary guide to the purpose of the provision. Estate of Bell v. Shelby Cty. Health Care Corp., 318 S.W.3d 823, 835 (Tenn. 2010). Thus, when construing a constitutional provision, courts must give its terms their ordinary and inherent meaning. Barrett v. Tennessee Occupational Safety and Review Commission, 284 S.W.3d 784, 787 (Tenn. 2009).

Article XI, § 5 specifies that net proceeds of the lottery's revenues may only be used "to provide financial assistance to citizens of this state to enable such citizens to attend post-secondary educational institutions" in Tennessee. (Emphasis added.) Based on the ordinary meaning of this language, lottery proceeds may only be used to pay for costs incurred while a citizen is attending a post-secondary educational institution in Tennessee. Accordingly, the use of net lottery proceeds to pay AP Examination fees is not consistent with article XI, § 5, because students take AP examinations while they are in high school and before they attend college; they are not attending college when they take the examination.

Moreover, while AP examinations might result in students receiving college credit, they offer no guarantee of college attendance at a post-secondary institution of higher education in Tennessee and no guarantee that such an institution would grant course credit in any given case. A high school student who takes an AP examination may or may not subsequently apply to college in Tennessee, may or may not attend college in Tennessee, may or may not achieve a sufficiently high score to qualify for college credit, and may or may not submit an AP score for college credit. There is, in short, no certain and direct link between an AP examination taken by a Tennessee high school student and attendance by that Tennessee citizen at an institution of higher education in Tennessee.

By contrast, the dual enrollment grants established under Tenn. Code Ann. § 49-4-930, which involve college credit for high school students, are directly and definitively linked to attendance at a Tennessee institution of higher education. Dual enrollment grants are available for high school students who are also enrolled and taking courses at eligible postsecondary institutions. To qualify for a dual enrollment grant, the high school student must attend, and take a course at, a post-secondary institution located in Tennessee. Id. Thus, dual enrollment grants are within the scope of the plain language of article XI, § 5 because they satisfy its requirement that financial assistance funded by lottery proceeds be tied to college attendance in Tennessee.

It is true that a student who takes an AP examination that results in college credit might use that credit to advance through college more quickly and, therefore, at a reduced cost. But, again, there is no certainty that any student will do so. And even if a student does use AP credit in that way, that does not make payment of the fee for the AP examination "financial assistance" within the scope of article XI, § 5. The term "financial assistance" in article XI, § 5, is limited to assistance that will help a citizen pay the costs to attend a post-secondary educational institution. See Tenn. Att'y Gen. Op. 11-20 (March 4, 2011). "Cost of attendance" is defined by statute to mean "the combined cost of tuition, mandatory fees, room and board, books and other educational expenses as determined by the financial aid office of the eligible postsecondary education." Tenn. Code Ann. § 49-4-902(8) (emphasis added). Since AP credit is not required for attendance at a postsecondary educational institution, the fee for an AP examination is neither a mandatory fee nor a cost of tuition.

In sum, article XI, § 5, of the Tennessee Constitution does not authorize the use of net lottery proceeds to pay for AP examination fees.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

RYAN A. LEE
Assistant Attorney General

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