Can the Achievement School District or the Tennessee education commissioner add grade levels to a school that has been placed in the ASD?

Plain-English summary

The Achievement School District (ASD) is a state unit created by Tennessee's First to the Top Act of 2010 to take over the lowest-performing schools (called "priority" schools, those in the bottom five percent statewide). When the Commissioner of Education places a priority school in the ASD, the Commissioner can directly operate the school or contract with a third party to run it. Representative Harry Brooks asked a structural question: can the ASD or the Commissioner authorize a school placed in the ASD to serve grades it did not previously serve? For example, if Jones School was a 5-8 school before being placed in the ASD, can the ASD now add a 9th grade?

The AG said no. The statutory grant of authority in Tenn. Code Ann. § 49-1-614 lets the Commissioner manage day-to-day operations of the school "as that school existed when it was assigned priority status." There is no language giving the Commissioner power to expand the school's scope beyond what it provided when it was designated for turnaround. Adding grades would expand the school's services beyond the priority configuration; the AG found no statutory hook for that.

The AG also referenced two earlier 2016 and 2017 opinions reaching the same conclusion when the question was framed at the "school" level: Tenn. Att'y Gen. Op. 16-50 and Tenn. Att'y Gen. Op. 17-01.

Currency note

This opinion was issued in 2017. The Achievement School District framework and the underlying statutes have been the subject of substantial legislative activity since. Subsequent 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 about ASD authority.

Background and statutory framework

The ASD was created to give the state an intervention tool for schools at the bottom of the performance distribution. The mechanism is administrative, not statutory rewriting: the State Board of Education identifies priority schools, the Commissioner has authority to assign a school or a "grade configuration within a school" to the ASD, and the Commissioner can operate the school directly or contract with a third party to do so.

§ 49-1-614(c). The Commissioner has "the authority to assign any school or grade configuration within a school to the ASD at any time such school is designated to be in priority status." Two things follow from this language. First, the unit of assignment can be the whole school or a specific grade configuration. So a school can be assigned 6-8 even if it serves K-8, with the K-5 grades remaining outside the ASD. Second, the authority to assign is keyed to the school as it existed at the time of priority designation.

§ 49-1-614(b). Once assigned, the Commissioner has "the authority to directly operate or contract with" a third party "to manage the day-to-day operations of any or all schools placed in the ASD, including, but not limited to, providing direct services to students." That is the day-to-day management hook. But "day-to-day operations" is a management concept, not a structural expansion concept. The AG read it as authority to run what is there, not to extend what is there.

The gap the AG identified. Nothing in § 49-1-614 or related sections of § 49-1-602 gives the Commissioner authority to expand the scope of the school's services beyond what existed at priority designation. The ASD's mission is turnaround of underperforming schools, not creation of new grade offerings. The AG saw the absence of expansion authority as a deliberate choice by the legislature, not a drafting oversight.

Cross-references. Tenn. Att'y Gen. Op. 16-50 (Dec. 30, 2016) addressed the related question of whether a "school" lacks authority to add grades. Tenn. Att'y Gen. Op. 17-01 (Jan. 5, 2017) was on the same general line. The 17-19 opinion completed the analysis by extending it to the ASD context.

The Jones School hypothetical. The question used a worked example. Jones School served grades 5-8 before ASD placement. After placement, the AG concluded, the ASD and Commissioner could continue managing the 5-8 program, directly or by contract with a charter or other operator, but could not add grade 4 or grade 9. Adding grades would expand the services beyond the priority configuration, and the statute does not authorize that.

Common questions

Q: What is the Achievement School District?
A: The ASD is a state-administered organizational unit of the Tennessee Department of Education, created by the First to the Top Act of 2010, that takes over operation of the state's lowest-performing schools (priority schools).

Q: Can a priority school added to the ASD start a kindergarten program it never had before?
A: According to this opinion, no. The Commissioner's authority extends to managing the school as it existed at priority designation, not expanding its grade offerings.

Q: What if there is an operational reason to add a grade, like the next-feeder school is failing too?
A: The opinion did not address policy reasons. It said the statute as written did not give the Commissioner that authority. Expanding grades would require either legislative change or a different statutory hook.

Q: Can the ASD operate the existing grades through a charter or third-party contract?
A: Yes. Tenn. Code Ann. § 49-1-614(b) lets the Commissioner directly operate the school or contract with a third party to manage day-to-day operations, including direct student services.

Q: What's a "grade configuration" under the statute?
A: § 49-1-614(c) lets the Commissioner assign either the whole school or a specific grade range within it to the ASD. So a K-8 school could be partially assigned, with only grades 6-8 going to the ASD.

Q: Do other AG opinions address similar questions?
A: Yes. Tenn. Att'y Gen. Op. 16-50 (Dec. 30, 2016) and Tenn. Att'y Gen. Op. 17-01 (Jan. 5, 2017) addressed the related question of whether a school itself can add grades. This opinion extended that analysis to the ASD context.

Citations and references

Statutes:

• Tenn. Code Ann. § 49-1-614(a) (ASD administration)
• Tenn. Code Ann. § 49-1-614(b) (Commissioner operational authority)
• Tenn. Code Ann. § 49-1-614(c) (assignment of priority schools to ASD)
• Tenn. Code Ann. § 49-1-602(b)(2) (priority school definition)
• Tenn. Code Ann. § 49-1-602(b)(2)(C) (placement within ASD jurisdiction)

Related AG opinions:

• Tenn. Att'y Gen. Op. 16-50 (Dec. 30, 2016)
• Tenn. Att'y Gen. Op. 17-01 (Jan. 5, 2017)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-019.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 13, 2017
Opinion No. 17-19
Authority of Achievement School District or Commissioner of the Tennessee Department of Education to Add Grades to "Priority" Schools

Question 1
May the Achievement School District ("ASD") or the Commissioner of the Tennessee Department of Education (the "Commissioner") authorize a school placed in the ASD to serve grades other than the grades the school served prior to its placement in the ASD? [Footnote 1: This Office has previously opined that a "school" lacks the authority to add grades. See Tenn. Att'y Gen. Op. 16-50 (Dec. 30, 2016) and Tenn. Att'y Gen. Op. 17-01 (Jan. 5, 2017).]

Opinion 1
The Commissioner has authority to manage, directly or indirectly, the day-to-day operations of any school or any grade configuration of any school that has been placed in the ASD as that school existed when it was assigned priority status. But there is nothing that gives the Commissioner or the ASD authority to allow an already under-performing school in the ASD to serve grades in addition to the ones it was serving when it was assigned priority status and placed in the ASD.

Question 2
Assume Jones School serves Grades 5-8 prior to its placement in the ASD. After Jones School is placed in the ASD, may the ASD or the Commissioner of the Tennessee Department of Education authorize Jones School to serve grades other than 5-8 through direct service or contract with a provider?

Opinion 2
After the Jones School has been placed in the ASD, the Commissioner has authority to manage, directly or indirectly, its day-to-day operations as that school existed when it was assigned priority status. But there is nothing that would give the Commissioner authority to allow the Jones School to serve grades in addition to grades 5 through 8, whether through direct service or contract with a provider, after the Jones School has been placed in the ASD.

ANALYSIS

The 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 ASD is administered by the Commissioner of the Department of Education "for the purpose of providing oversight for the operation of schools assigned to or authorized by the ASD." Tenn. Code Ann. § 49-1-614(a). To accomplish that purpose, the Commissioner has "the authority to assign any school or grade configuration within a school to the ASD at any time such school is designated to be in priority status . . . ." Tenn. Code Ann. § 49-1-614(c). In other words, once a school has been designated a "priority" school, the Commissioner may assign to the ASD the entire school or any grade or group of grades existing within the school at the time the school is designated a "priority" school. And once the Commissioner places a "priority" school or a grade configuration existing within a "priority" school in the ASD, the Commissioner has "the authority to directly operate or contract with" a third party "to manage the day-to-day operations of any or all schools placed in the ASD, including, but not limited to, providing direct services to students." Tenn. Code Ann. § 49-1-614(b).

Thus, the Commissioner has authority to manage, directly or indirectly, the day-to-day operations of any school or any grade configuration of any school that has been placed in the ASD as that school existed when it was assigned priority status. But there is nothing that gives the Commissioner authority to expand the scope of the services beyond those that the school provided when it was assigned priority status and placed in the ASD. Accordingly, there is nothing that would authorize the Commissioner to allow an already under-performing school — a school that was placed in the ASD for the very purpose of improving the services it has been providing before it was designated a "priority" school — to serve grades in addition to the ones it was serving when it was assigned priority status.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JAY C. BALLARD
Deputy Attorney General

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