Can a Tennessee LEA open a school or authorize a charter school inside another LEA's territory?

Plain-English summary

The Commissioner of Education asked whether an LEA can operate a school or authorize a charter school outside its own jurisdictional boundaries, and what happens if a charter school operator has actually located its school in another LEA's territory. The AG said no on the threshold questions and noted the chartering LEA has both enforcement options and no specific enforcement obligation.

LEAs (local education agencies, primarily school districts) are creatures of statute. They have only the powers expressly granted or necessarily implied by statute. General Portland, Inc. and State ex rel. Comm'r of Transp. v. Eagle set the basic principle. Sanifill of Tenn., Inc. v. Tennessee Solid Waste Disposal Control Bd. requires strict construction of statutory grants of power. Actions taken without authority are nullities (Johnson v. Alcoholic Beverage Comm'n; Madison Loan & Thrift Co. v. Neff).

Public schools. Tenn. Code Ann. § 49-2-203 charges LEAs with the "management and control of all public schools established under [their] jurisdiction." No statute lets one LEA operate or manage a school in another LEA's territory. Nor is such authority necessary by implication.

Charter schools. The Tennessee Public Charter Schools Act of 2002, Tenn. Code Ann. § 49-13-101 et seq., authorizes LEAs to be chartering authorities, but does not expressly authorize them to charter schools outside their jurisdiction. § 49-13-106(a)(1) ties charter schools to the chartering authority's jurisdiction: "Public charter schools may be formed to provide quality educational options for all students residing within the jurisdiction of the chartering authority; provided, however, that a chartering authority may authorize charters to enroll students residing outside the LEA in which the public charter school is located." Both clauses tie location and operation to the chartering authority's jurisdiction. The charter school is located and operated in the chartering authority's territory, even if it enrolls some out-of-district students. Implied authority to charter outside is not necessary.

A charter school operating outside the chartering LEA. The AG was unaware of a general duty requiring the LEA to act, or a general bar against enforcing the law or charter agreement. If the agreement specifies the school's location, a breach might permit revocation under § 49-13-122(c)(1) if the LEA finds a material violation. The opinion says particular facts could create an obligation or limit enforcement.

This opinion is paired with Tenn. Att'y Gen. Op. 17-41, issued the same day with the same analysis.

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 mentioned here.

Background and statutory framework

LEAs as creatures of statute. The general rule: statutory agencies have only the powers expressly granted or necessarily implied by statute, and the grant of power is strictly construed. Sanifill of Tenn., Inc.; Tennessee Pub. Serv. Comm'n v. Southern Ry. The opinion applies that rule to LEAs.

§ 49-2-203 and the management of public schools. The statute charges each LEA with managing and controlling all public schools "established . . . under its jurisdiction." Express territory limit; no express authorization to operate elsewhere.

The Charter Schools Act. § 49-13-101 et seq. provides for LEA authorization of charter schools. The opinion focuses on the location language in § 49-13-106(a)(1) and discusses possible revocation for a material breach of a location term in the charter agreement under § 49-13-122(c)(1).

Why no implication of out-of-territory authority. The statute provides the chartering authority with extensive tools for in-jurisdiction operation. The charter school can enroll out-of-district students under the host LEA's out-of-district enrollment policy and Tenn. Code Ann. § 49-6-3003 and § 49-6-403(f). That covers the cross-district enrollment case. Authority to physically locate elsewhere is not needed to fulfill the LEA's mandate.

Enforcement against a misplaced charter school. The opinion does not make revocation automatic. It says a location term in the charter agreement would bind the operator, and breaching that term might permit revocation if the LEA determines the breach is material under § 49-13-122(c)(1). Whether the LEA must or may act can depend on the facts.

Common questions

Q: Can a Tennessee school district open a school in another district's territory?
A: According to this opinion, no. The statutory powers of an LEA do not extend beyond its territorial jurisdiction.

Q: Can an LEA charter a charter school located in another LEA's territory?
A: According to this opinion, no. The Charter Schools Act ties charter school location to the chartering authority's jurisdiction.

Q: Can a charter school enroll students from outside the chartering LEA?
A: Yes. § 49-13-106(a)(1) allows enrollment of out-of-district students subject to the host LEA's out-of-district policy.

Q: What if a charter school has actually located outside the chartering LEA?
A: The opinion identifies no general duty to act. If the charter agreement specifies a location, breaching that term might permit the LEA to revoke under § 49-13-122(c)(1), provided the LEA determines the violation is material. The facts could affect its duties or options.

Q: Does this opinion bar inter-district cooperation generally?
A: It addresses authority to operate or authorize schools outside an LEA's territory. Other forms of inter-district cooperation may rest on different statutory authority and were not analyzed here.

Citations and references

Statutes:

• Tenn. Code Ann. § 49-1-102(c)
• Tenn. Code Ann. § 49-2-203
• Tenn. Code Ann. § 49-13-101 et seq.
• Tenn. Code Ann. § 49-13-106(a)(1)
• Tenn. Code Ann. § 49-13-122(c)(1)
• Tenn. Code Ann. § 49-6-3003; § 49-6-403(f)

Cases:

• General Portland, Inc. v. Chattanooga-Hamilton County Air Pollution Control Bd., 560 S.W.2d 910 (Tenn. Ct. App. 1976)
• State ex rel. Comm'r of Transp. v. Eagle, 63 S.W.3d 734 (Tenn. Ct. App.)
• Sanifill of Tenn., Inc. v. Tennessee Solid Waste Disposal Control Bd., 907 S.W.2d 807 (Tenn. 1995)
• Tennessee Pub. Serv. Comm'n v. Southern Ry., 554 S.W.2d 612 (Tenn. 1977)
• Johnson v. Alcoholic Beverage Comm'n, 844 S.W.2d 182 (Tenn. Ct. App. 1992)
• Madison Loan & Thrift Co. v. Neff, 648 S.W.2d 655 (Tenn. Ct. App. 1982)

Companion opinion:

• Tenn. Att'y Gen. Op. 17-41 (Sept. 20, 2017)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-040.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 20, 2017
Opinion No. 17-40
Authority of an LEA to Operate a School within the Jurisdiction of another LEA

Question 1
Does a Local Education Agency (LEA) have the authority to open and operate a public school within the jurisdictional boundaries of another LEA?

Opinion 1
No. An LEA has no inherent power and is not expressly or impliedly authorized by statute to open and operate a public school within the jurisdictional boundaries of another LEA.

Question 2
May an LEA, serving as a charter school authorizer, authorize a charter school to operate within the jurisdictional boundaries of another LEA?

Opinion 2
No. An LEA has no inherent power and is not expressly or impliedly authorized by statute to operate a charter school within the jurisdictional boundaries of another LEA.

Question 3
Does a charter school operator have the authority to establish and operate its charter school outside the jurisdictional boundaries of the chartering LEA?

Opinion 3
No. A charter school operator is not expressly or impliedly authorized by statute to operate its school outside the jurisdictional boundaries of the chartering authority.

Question 4
If the answer to question 3 is no, but a charter school operator has established a charter school outside the jurisdictional boundaries of the LEA that authorized it (chartering LEA), does the chartering LEA have the authority and obligation to take action to require the charter school operator to move the location of the school inside the chartering LEA's jurisdictional boundaries?

Opinion 4
This Office is unaware of any obligation on the part of an LEA to take action against the charter school operator; conversely, this Office is unaware of any authority that would prevent the LEA from taking action to enforce the law or the charter agreement. Of course, the particular facts and circumstances of any given situation could potentially trigger a particular obligation on the part of the LEA, or could prevent or circumscribe the ability of the LEA to pursue enforcement measures.

ANALYSIS

It is a fundamental rule of law that agencies of government created by statute, such as a Local Education Agency, have no inherent or common-law power of their own. General Portland, Inc. v. Chattanooga-Hamilton County Air Pollution Control Bd., 560 S.W.2d 910, 914 (Tenn. Ct. App. 1976); State ex rel. Comm'r of Transp. v. Eagle, 63 S.W.3d 734, 768-69 (Tenn. Ct. App.). Because they are purely creatures of statute, such agencies have only those powers expressly granted by statute and those powers required by necessary implication to enable them to fulfill their statutory mandate, and, in either case the grant of power must be strictly construed. Sanifill of Tenn., Inc. v. Tennessee Solid Waste Disposal Control Bd., 907 S.W.2d 807, 810 (Tenn. 1995); Tennessee Pub. Serv. Comm'n v. Southern Ry., 554 S.W.2d 612, 613 (Tenn. 1977). Actions taken by a governmental agency without the required authority are nullities. Johnson v. Alcoholic Beverage Comm'n, 844 S.W.2d 182, 186 (Tenn. Ct. App. 1992); Madison Loan & Thrift Co. v. Neff, 648 S.W.2d 655, 657 (Tenn. Ct. App. 1982).

Regarding the general administration of public schools, Tenn. Code Ann. § 49-1-102(c) provides, "[t]here shall be a local public school system operated in each county or combination of counties." A local public school system, or LEA, has no inherent power. It "has only such powers as are expressly given to it or as result by fair implication from the powers expressly granted." 16A E. McQuillin, The Law of Municipal Corporations § 46.07, at 402 (S. Flanagan ed., 3d ed. rev. 1984).

In sum, an LEA does not have the authority to approve the operation of a public school or a charter school within the jurisdictional boundaries of another LEA, unless authority to do so is clearly expressed or necessarily implied by statute.

1. Authority of One LEA to Open and Operate a Public School Within the Jurisdictional Boundaries of Another LEA

One LEA may not open and operate a public school within the jurisdictional boundaries of another LEA, because no such power is conferred on an LEA by statute. Tennessee Code Annotated § 49-2-203 sets forth, at length and in detail, the powers and duties of an LEA related to the operation of public schools. Section 49-2-203 charges LEAs with the "manage[ment] and control [of] all public schools established . . . under its jurisdiction." Tenn. Code Ann. § 49-2-203(a)(2) (emphasis added). Section 49-2-203 does not, however, expressly give an LEA the power to manage or control public schools that are outside of the LEA's jurisdictional boundaries. Nor is it necessary to imply such authority to enable an LEA to fulfill its statutory mandate.

2. Authority of LEAs for the Operation of Charter Schools

The Tennessee Public Charter Schools Act of 2002 ("the Act"), codified at Tenn. Code Ann. § 49-13-101, et seq., permits the establishment of charter schools and provides for authorization of charter schools by LEAs. But the Act does not expressly authorize an LEA to approve the operation of a charter school beyond that LEA's jurisdiction. Similarly, the Act does not expressly authorize a charter school operator to operate its charter school outside the jurisdiction of the chartering LEA.

The creation of a charter school is governed primarily by Tenn. Code Ann. § 49-13-106(a)(1), which provides in pertinent part:

Public charter schools may be formed to provide quality educational options for all students residing within the jurisdiction of the chartering authority; provided, however, that a chartering authority may authorize charters to enroll students residing outside the LEA in which the public charter school is located pursuant to the LEA out-of-district enrollment policy and in compliance with §§ 49-6-3003 and 49-6-403(f).

This language indicates that charter schools are to operate within the jurisdiction of the chartering LEA. Both clauses of the sentence tie the location and operation of a charter school to the jurisdictional boundaries of its chartering authority. First, the express purpose of a charter school is to educate "students residing within the jurisdiction of the chartering authority." Id. (emphasis added). Second, a charter school may "enroll students residing outside the LEA in which the public charter school is located." Id. (emphasis added). Taken together, these two clauses express the intent that a charter school is to be located and operated in the jurisdiction of the chartering authority to serve students living in that jurisdiction and that, although it is located and operated in that jurisdiction, it may also enroll students who reside elsewhere. It is not necessary to imply authority to locate and operate outside the jurisdiction to accomplish these statutory purposes.

If the chartering LEA and the charter school operator agree to the location of the charter school in the charter agreement, then the charter school operator is bound by that provision. Breach of that contractual provision might permit the chartering LEA to revoke a charter school agreement if the LEA determines that the school "[c]ommitted a material violation of any of the conditions, standards, or procedures set forth in the charter agreement." Tenn. Code Ann. § 49-13-122(c)(1).

In summary, an LEA does not have the authority to open and operate a public school or a charter school within the jurisdictional boundaries of another LEA. LEAs have only those powers conferred on them by statute. The statutes concerning the powers of LEAs, Tenn. Code Ann. § 49-2-203 and Tenn. Code Ann. § 49-13-101, et seq., do not expressly give LEAs the authority to open and operate public schools or charter schools outside of their jurisdictional boundaries. Nor does such authority arise by necessary implication. LEAs are able to fulfill their statutory mandate without establishing or operating charter schools outside their jurisdictional boundaries.

The analysis expressed herein is identical to that in Att'y Gen. Opinion No. 17-41, which is being issued simultaneously herewith.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JAY BALLARD
Deputy Attorney General

Requested by:
Dr. Candice McQueen
Commissioner
Tennessee Department of Education
Andrew Johnson Tower, 9th Floor
710 James Robertson Parkway
Nashville, TN 37243