Can a Tennessee private K-12 school that also runs a preschool on the same campus let its teachers carry concealed handguns under § 49-50-803?

Subject

Whether the authorization in Tenn. Code Ann. § 49-50-803 for a "private K-12 school" to adopt a handgun carry policy applies to a private K-12 school that operates a preschool on the same campus.

Plain-English summary

Representative Jason Zachary asked whether the statutory phrase "each private K-12 school" in § 49-50-803 reaches a private school that also operates a preschool on the same campus. The AG's answer is yes. The phrase, read in context, includes private schools that offer some subset of K-12 (K-6, K-8, 9-12) and private schools that offer K-12 plus a preschool program on the same property. The statutory authorization to set policy "for any property on which the school is located that is owned or operated by the school" lets the policy cover the preschool building too.

The structural picture: Tennessee generally bans firearms on public and private school property under § 39-17-1309(b) and (c). It is a criminal offense to possess or carry a firearm on any school property. Section 39-17-1309(e)(9) carves out an exemption for "[p]ersons permitted to carry a handgun on the property of private K-12 schools by § 49-50-803." Section 49-50-803 then lets the board, governing entity, or chief administrative officer of the school adopt a policy that prohibits, permits, or permits in certain areas the carrying of a handgun. If the school's policy permits carry, the carrier must hold a valid Tennessee handgun carry permit under § 39-17-1351 (an enhanced permit, which authorizes concealed or open carry). The opinion also notes (footnote 1) that holders of the separate concealed-carry permit under § 39-17-1366 are not within § 49-50-803.

The statutory-construction reasoning is straightforward. A literal reading of "each private K-12 school" as "schools offering all thirteen grades, nothing more or less" would shut out K-6 schools and 9-12 schools and would conflict with the public-school definition of "K-12 school" in § 49-1-702(9) ("a school that offers any of the grades kindergarten through twelve"). Such a reading would be hyper-technical and would frustrate the legislative purpose of giving each private school autonomy over its own carry policy. Reading the phrase to include schools offering subsets of K-12, and schools that also run a preschool, fits the legislative intent.

What this means for you

If you are a private K-12 school that operates a preschool on campus

The opinion concludes that § 49-50-803 reaches your school. A private K-12 school operating a preschool on its campus may adopt a handgun-carry policy permitting its faculty members to conceal carry, assuming the policy is adopted in accordance with § 49-50-803. The opinion also reads § 49-50-803(a) to allow the policy to cover the preschool, because the policy may extend to "any property on which the school is located that is owned or operated by the school" and "any building or structure located on the school property."

If you are a faculty member at a private K-12 school

The opinion describes faculty as the carriers contemplated by such a policy. Under § 49-50-803, the exemption from the school-property carry ban applies only where the school has adopted a policy, the person is on property covered by that policy, and the person is in compliance with the policy. A person carrying under the policy must hold a valid Tennessee handgun carry permit under § 39-17-1351. The opinion (footnote 1) states that the separate permit under § 39-17-1366 is not within § 49-50-803.

If you are a public-school administrator

The opinion addresses § 49-50-803, which by its terms applies to private K-12 schools. It does not address public schools.

Common questions

Q: Can a private K-12 school with a preschool on campus let teachers carry?
A: Yes. The opinion concludes that such a school may adopt a handgun-carry policy permitting faculty to conceal carry, assuming the policy is adopted in accordance with § 49-50-803.

Q: Does the policy cover the preschool building?
A: The opinion reads § 49-50-803(a) to allow a policy to cover a preschool located on the property where the private K-12 school is located, because the policy may reach "any property on which the school is located that is owned or operated by the school."

Q: What permit does a carrier need?
A: The opinion states that a person permitted to carry under § 49-50-803 must have a valid Tennessee handgun carry permit pursuant to § 39-17-1351. Footnote 1 states that the separate concealed-carry permit under § 39-17-1366 is not within § 49-50-803.

Q: Does § 49-50-803 require a school to allow carry?
A: The opinion describes § 49-50-803 as authorizing a board, governing entity, or chief administrative officer to establish a policy that prohibits, permits, or permits in certain areas the carrying of a handgun. It does not state that adoption of a permissive policy is mandatory.

Background and statutory framework

Tennessee bans firearms on school property by default. Section 39-17-1309(b)(1) makes it a criminal offense to possess or carry a firearm "in any public or private school building or bus, on any public or private school campus, grounds, recreation area, athletic field or any other property owned, operated, or while in use by any board of education, school, college or university board of trustees, regents or directors for the administration of any public or private educational institution." Subsection (c)(1) parallels (b)(1).

Subsection (e) provides exemptions. Subsection (e)(9) exempts "[p]ersons permitted to carry a handgun on the property of private K-12 schools by § 49-50-803." The exemption applies only when (1) the school has adopted a § 49-50-803 policy, (2) the person is on property covered by that policy, and (3) the person is in compliance with the policy.

Section 49-50-803 is the authorizing statute. It authorizes the board or governing entity (or the chief administrative officer if the school has neither) to establish a policy that prohibits, permits, or permits-in-certain-areas the carrying of a handgun. Subsection (b)(2) requires anyone carrying under the policy to hold a valid handgun carry permit "pursuant to § 39-17-1351." That section governs the enhanced handgun carry permit, which authorizes both concealed and open carry. The separate concealed-only permit under § 39-17-1366 is not within § 49-50-803.

The "each private K-12 school" question is a statutory-construction question. Tennessee's standard tools for statutory construction (Frazier, Lee Med., Westgate, Turner, Heirs of Ellis, State by Lockert) reject hyper-literal readings that frustrate purpose. Pairing § 49-50-803 with the public-school definition of "K-12 school" in § 49-1-702(9) ("a school that offers any of the grades kindergarten through twelve") confirms that "K-12 school" is a category description, not a strict-13-grades requirement. A school operating a preschool program on the same campus, in addition to K-12 grades, falls within the category, and the policy can cover any "property on which the school is located that is owned or operated by the school."

Citations

Statutes:

• Tenn. Code Ann. § 39-17-1309(b)(1), (c)(1) (school-property carry ban)
• Tenn. Code Ann. § 39-17-1309(e)(9) (§ 49-50-803 exemption)
• Tenn. Code Ann. § 49-50-803 (private K-12 carry policy)
• Tenn. Code Ann. § 49-50-803(b)(2) (enhanced permit required)
• Tenn. Code Ann. § 39-17-1351 (enhanced permit)
• Tenn. Code Ann. § 39-17-1366 (concealed-only permit, not within § 49-50-803)
• Tenn. Code Ann. § 49-1-702(9) (K-12 definition)

Cases on construction:

• State v. Frazier, 558 S.W.3d 145, 152 (Tenn. 2018)
• Westgate Smoky Mountains v. Phillips, 426 S.W.3d 743 (Tenn. 2013)
• Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526-27 (Tenn. 2010)
• State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995)
• Westinghouse Elec. Corp. v. King, 678 S.W.2d 19, 23 (Tenn. 1984)
• Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 712 (Tenn. 2002)
• State by Lockert v. Knott, 631 S.W.2d 124, 127 (Tenn. 1982)
• State v. Adams, 24 S.W.3d 289, 295 (Tenn. 2000), looking to definitions in same subject matter
• Potts v. Potts, 2021 WL 2226622 (Tenn. Ct. App. June 2, 2021), same approach

Prior AG opinion:

• Tenn. Att'y Gen. Op. 05-154 (Oct. 11, 2005): enhanced permit allows open or concealed carry

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2023/op23-07.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 2, 2023
Opinion No. 23-007

Handgun-Carry Policies Permitted Under Tenn. Code Ann. § 49-50-803

Question

Does Tenn. Code Ann. § 49-50-803, which authorizes "each private K-12 school" to establish a handgun-carry policy, allow such a school to adopt a policy that permits its faculty members to "conceal carry" if the school operates a preschool on the school's campus?

Opinion

Yes. A private K-12 school that operates a preschool on the school's campus may adopt a handgun-carry policy that permits its faculty members to "conceal carry," assuming that the policy is adopted in accordance with Tenn. Code Ann. § 49-50-803.

ANALYSIS

Under Tennessee law, one is generally prohibited from possessing or carrying a firearm on any public or private school property. Specifically, it is a criminal offense to possess or carry a firearm, whether openly or concealed, "in any public or private school building or bus, on any public or private school campus, grounds, recreation area, athletic field or any other property owned, operated, or while in use by any board of education, school, college or university board of trustees, regents or directors for the administration of any public or private educational institution." Tenn. Code Ann. §§ 39-17-1309(b)(1) & (c)(1).

Several persons, however, are statutorily exempt from the application of Tenn. Code Ann. §§ 39-17-1309(b) & (c), including those "[p]ersons permitted to carry a handgun on the property of private K-12 schools by § 49-50-803." Id. § 39-17-1309(e)(9). The goal of the statutory exemption is to provide autonomy to private schools in determining handgun-carry policy on their campuses. This exemption applies only (1) to the school or institution where the person is located, when that school or institution has adopted "a handgun carry policy pursuant to § 49-50-803;" (2) while the person is on the property or grounds covered by the private school or institution's policy; and (3) when the person is otherwise in compliance with the policy adopted by the private school or institution. Id.

Under Tenn. Code Ann. § 49-50-803, the "board or governing entity of each private K-12 school, or the chief administrative officer if the school does not have a board or governing entity, may establish a handgun carry policy," which policy can prohibit, permit, or permit in certain areas the carrying of a handgun "for any property on which the school is located that is owned or operated by the school and for any building or structure located on the school property." Id. § 49-50-803(a) (emphasis added). If the board or governing entity, or the chief administrative officer when appropriate, permits a person to possess handguns at the private school, "[t]he person must have a valid Tennessee handgun carry permit, pursuant to § 39-17-1351." Id. § 49-50-803(b)(2).

Whether a private K-12 school may, within the meaning and scope of Tenn. Code Ann. § 49-50-803, adopt a policy that permits its faculty members to "conceal carry" if the school operates a preschool on the school's campus is a question of statutory construction.

The most basic principle of statutory construction is to give effect to the legislative intent without unduly restricting or expanding the coverage of a statute beyond its intended scope. State v. Frazier, 558 S.W.3d 145, 152 (Tenn. 2018); Westgate Smoky Mountains v. Phillips, 426 S.W.3d 743, 747-48 (Tenn. 2013). To fulfill this directive, courts begin with the plain language of the statute and the words that the General Assembly has chosen. Frazier, 558 S.W.3d at 152; Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010). Because words are known by the company they keep, courts construe these words in the context in which they appear in the statute and in light of the general purpose of the statute. Lee Med., 312 S.W.3d at 526-27. And because courts will seek a reasonable construction in light of the purposes, objectives, and spirit of the statute based on good sound reasoning, State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995), they avoid basing their interpretation on a single sentence, phrase, or word, Lee Med., 312 S.W.3d at 527 (citing Westinghouse Elec. Corp. v. King, 678 S.W.2d 19, 23 (Tenn. 1984)), and avoid giving a literal meaning to a phrase when doing so results in a construction that frustrates the objective of the statute, see Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 712 (Tenn. 2002); State by Lockert v. Knott, 631 S.W.2d 124, 127 (Tenn. 1982).

These well-established statutory construction principles dictate that, in construing § 49-50-803, the phrase "each private K-12 school" should not be read in isolation; rather, the phrase must be read in context and interpreted in light of the general purpose of the statute as a whole, which is to allow each such private school to establish its own handgun-carry policy.

The phrase "each private K-12 school"—if read in isolation and literally—could be taken to mean that the exemption applies only to a private school that offers kindergarten through grade 12 classes, nothing more and nothing less. But that reading so narrows the scope of the exemption that a private school offering, for example, only K-6 classes could not adopt a handgun-carry policy, nor could a private school offering just 9-12 classes. And that reading would be at odds with another provision in title 49 that defines a "K-12 school" in the public sector as "a school that offers any of the grades kindergarten through twelve . . . ." Tenn. Code Ann. § 49-1-702(9) (emphasis added).

But when one considers the statute as a whole and in light of its purpose, that narrow construction is likely to be rejected as hyper-technical and as impermissibly limiting the scope of the statute and frustrating its objective. On the other hand, reading the phrase "each private K-12 school" in context and in light of the purpose of the statute makes clear that the intent of the legislature is best furthered by construing the phrase to include not only private schools that offer less than K-12 classes—e.g., K-6, or K-8, of 9-12—but also private schools that operate a preschool in addition to offering K-12 classes or some subset of K-12 classes.

Reading the phrase "each private K-12 school" to refer to subsets of such schools and to such schools that also operate a preschool comports with the basic rules of statutory construction and with the legislative intent to allow each private school to adopt an individualized handgun-carry policy. Thus, Tenn. Code Ann. § 49-50-803 may be properly construed to permit a private K-12 school that operates a preschool on its campus to establish a handgun-carry policy for its faculty members. Moreover, that policy need not be limited to the K-12 school itself since a handgun-carry policy may be established by a private K-12 school "for any property on which the school is located that is owned or operated by the school and for any building or structure located on the school property." Id. § 49-50-803(a) (emphasis added). The italicized language would allow the policy to cover a preschool that is located on the property on which the private K-12 school is located.

Accordingly, a private K-12 school that operates a preschool on the school's campus may adopt a handgun-carry policy that permits its faculty members to "conceal carry," assuming that the policy is adopted in accordance with Tenn. Code Ann. § 49-50-803.

JONATHAN SKRMETTI
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:
The Honorable Jason Zachary
State Representative
425 Rep. John Lewis Way N.
Suite 616
Nashville, Tennessee 37243