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

Plain-English summary

Representative Ron Lollar asked the same set of questions that Commissioner McQueen asked in the simultaneous Opinion 17-40. The AG's analysis is identical: an LEA is a creature of statute and has only the powers expressly or impliedly granted by statute. Neither Tenn. Code Ann. § 49-2-203 (general LEA powers) nor § 49-13-101 et seq. (the Tennessee Public Charter Schools Act of 2002) gives an LEA authority to operate a public school or authorize a charter school outside its own jurisdictional boundaries. A charter school must establish and operate within the chartering LEA's territory, although it may enroll students from outside that territory.

The five questions and answers:

1. Can an LEA open and operate a public school in another LEA's territory? No. § 49-2-203 expressly limits an LEA's management authority to schools "established . . . under its jurisdiction." No implied authority is necessary.

2. Must a charter school operate within the chartering LEA's jurisdiction? Yes. § 49-13-106(a)(1) ties charter school location to the chartering authority's jurisdiction.

3. Can an LEA authorize a charter school outside the LEA's jurisdiction? No. The Charter Schools Act does not expressly or impliedly authorize this.

4. Can an LEA authorize a charter school in another LEA's territory without the host LEA's approval? No, same answer as Question 3.

5. Does the host LEA have transportation, enrollment, contract, and property obligations? Mooted by Question 4.

This opinion is paired with Tenn. Att'y Gen. Op. 17-40, issued the same day with the same analysis to Commissioner McQueen.

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. General Portland; State ex rel. Comm'r of Transp. v. Eagle. They have only the express or necessarily implied powers granted by statute. The grant is strictly construed. Sanifill of Tenn., Inc.; Tennessee Pub. Serv. Comm'n v. Southern Ry. Actions without authority are nullities. Johnson v. Alcoholic Beverage Comm'n; Madison Loan & Thrift Co. v. Neff.

§ 49-2-203 and public schools. Charges LEAs with "manage[ment] and control [of] all public schools established . . . under its jurisdiction." Express territorial limit.

The Charter Schools Act. § 49-13-101 et seq. § 49-13-106(a)(1) reads: "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)." Both clauses tie charter school location to the chartering authority's territory; only the enrollment is cross-border.

Other Charter Schools Act provisions confirming territorial scope. § 49-13-111(a) requires charter schools to operate "under the general supervision of the chartering authority and in compliance with the charter agreement and [the Act]." § 49-13-111(d) makes the charter school accountable to the chartering authority. § 49-13-122(c)(1) lets the chartering LEA revoke a charter for material violations.

Why no implication of out-of-territory power. The framework allows cross-border enrollment but ties location to the chartering authority. Implied authority to relocate is not necessary to make the framework work; the statute already addresses out-of-district students through enrollment.

Common questions

Q: Can a Tennessee LEA operate a public school outside its district boundaries?
A: According to this opinion, no. Statutory authority is limited to schools "established . . . under its jurisdiction."

Q: Can an LEA charter a school in another district?
A: According to this opinion, no. The Charter Schools Act does not authorize out-of-territory chartering.

Q: Where must a chartered school be located?
A: Within the jurisdiction of the LEA that approved its charter.

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 under the host LEA's out-of-district enrollment policy and the cross-references to § 49-6-3003 and § 49-6-403(f).

Q: What happens if a charter school relocates outside the chartering LEA?
A: This opinion's companion (17-40) explains the chartering LEA can revoke the charter under § 49-13-122(c)(1) for material violation of the charter agreement, though there's no specific statutory obligation to act.

Citations and references

Statutes:
- Tenn. Code Ann. § 49-1-102(c); § 49-1-103(2)
- 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. § 49-13-111(a), (d)
- 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. 17-40 (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/op17-041.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 20, 2017
Opinion No. 17-41
Authority of an LEA to Operate a School within the Jurisdiction of another LEA

Question 1
May a local education agency ("LEA") 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
Must a charter school operator establish and operate its charter school within the jurisdictional boundaries of the LEA that approved its application?

Opinion 2
Yes. A charter school operator is required to comply with Tenn. Code Ann. § 49-13-101, et seq., and the charter agreement it forms with the chartering authority. A charter school is not expressly or impliedly authorized by statute to operate its school outside the jurisdictional boundaries of the chartering authority.

Question 3
May an LEA authorize a charter school to operate outside the jurisdictional boundaries of the LEA?

Opinion 3
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 4
May an LEA authorize a charter school to operate within the jurisdiction of another LEA absent any action by the non-authorizing LEA to approve the charter school?

Opinion 4
No. See Opinion No. 3. An LEA is not expressly or impliedly authorized by statute to operate a charter school within the jurisdictional boundaries of another LEA.

Question 5
If the answer to question 4 is yes, must the non-authorizing LEA comply with transportation, enrollment, contract, and property requirements of the Tennessee Public Charter Schools Act?

Opinion 5
See Opinion No. 4.

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.

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.

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.

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. 17-40, which is being issued simultaneously herewith.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JAY C. BALLARD
Deputy Attorney General

Requested by:
The Honorable Ron Lollar
State Representative
214 War Memorial Building
Nashville, Tennessee 37243