What does the Tennessee statute requiring the Commissioner of Education to be of 'literary and scientific attainments' actually mean, and what happens if the appointee doesn't meet the requirements?

Subject

What the qualifications in Tenn. Code Ann. § 4-3-802(b) for the Commissioner of Education actually require, and what remedies, if any, are available if the Commissioner does not meet them.

Plain-English summary

Representative Caleb Hemmer asked nine questions about the qualifications for Tennessee's Commissioner of Education and what happens if an appointee falls short. The AG's answers, in capsule form:

The Commissioner must meet all three statutory requirements: (1) be a person of "literary and scientific attainments"; (2) be a person "of skill and experience in school administration"; and (3) be "qualified to teach in the school of the highest standing over which the commissioner has authority." The "and" between them is conjunctive, and "shall" is mandatory.

Each of the three requirements is intentionally general. The 1925 General Education Law borrowed the "literary and scientific attainments" phrase from an 1873 statute applied to county superintendents. The Tennessee Supreme Court in State ex rel. Davis v. Evans (1909) interpreted that 1873 phrase as meaning a "reasonable degree of" prior knowledge in the subjects taught in public schools, and held that the standard was deliberately "indeterminate" so it could be administered by judgment. The same logic applies to "skill and experience in school administration" and to "qualified to teach." Notably, "qualified" does not mean "certified"; the Commissioner does not need a teaching certificate, only the underlying education, experience, and character that the certification process tests.

The Governor alone administers these standards. The General Assembly explicitly chose, in 1925, not to require Senate confirmation and not to require board certification. The Commissioner serves at the Governor's pleasure (§ 4-3-112(b)), and the Governor can remove the Commissioner at will.

The General Assembly cannot remove the Commissioner. Impeachment under Tenn. Const. art. V, § 4 likely does not reach the Commissioner of Education because the constitutional list of impeachable officers does not include him, and lacking qualifications is unlikely to constitute a "crime" in "official capacity."

If the legislature wanted to litigate the Commissioner's qualifications, it would face two obstacles: it likely lacks juridical standing, and there is no positive law granting it any role in determining qualifications. The General Assembly explicitly relinquished its confirmation role. The remaining route is the State's quo warranto statute (§ 29-35-101 et seq.), which lets the State, acting through its District and State Attorneys General, sue to remove an officer who is "unlawfully hold[ing] or exercis[ing] any public office." A private citizen can prompt a quo warranto suit only by providing information and security for costs to a state attorney; the citizen cannot litigate the action herself. The State Attorney General has oversight and dismissal authority throughout.

What this means for you

If you are the Tennessee Governor or appointment staff

Section 4-3-802(b) gives you broad discretion. The standards are general and indeterminate by design. Document the appointee's education, experience, and qualifications under each prong. Confirmation by the Senate is not required. Removal at the Governor's pleasure is available without cause.

If you are a state legislator concerned about a Commissioner's qualifications

You have limited recourse. The legislature did not retain a confirmation role and does not have standing to litigate qualifications. Your political tools (oversight hearings, budget-related actions, public statements) remain available, but legal removal is not on your side of the equation. The route you can use indirectly: ask the District or State Attorney General to consider a quo warranto action.

If you are a citizen concerned about the Commissioner

You can prompt a quo warranto investigation by providing information and security for costs to the District Attorney for your district or to the State Attorney General. Whether to bring the action is the State's call, not yours, and the State can dismiss the action at any time.

If you are a District or State Attorney General

Quo warranto is the State's exclusive judicial mechanism for testing an officer's qualifications. The action belongs to the State; private relators can prompt but cannot control the litigation. Section 8-6-109(b)(1) gives the State Attorney General responsibility for state civil litigation, including any appeal. Coordinate with the Governor's office and consider the State's interests before filing.

If you are a candidate or appointee for Commissioner

The standards are flexible. You need not have a teaching certificate. The "qualified to teach" requirement focuses on education, experience, and character, not on credentialing per se. Document your background in literary and scientific subjects, your school-administration experience, and your overall fitness to teach.

If you are an education researcher or journalist

The opinion is a master class in early-Tennessee education law and statutory construction. The 1925 General Education Law borrowed phrases from earlier 1870s statutes; the AG walks through the legislative and judicial history to explain how the standards have always operated. The pre-1925 board-certification regime gave way to gubernatorial discretion, and the General Assembly explicitly removed the Senate confirmation requirement.

Common questions

Q: Does the Commissioner of Education need a teaching certificate?
A: No. The opinion explicitly distinguishes "qualified" from "certified." The Commissioner needs the underlying education, experience, and character that the certification process tests, but not the certificate itself.

Q: Does the Senate confirm the Commissioner?
A: No. The General Assembly chose, in the 1925 General Education Law, not to require legislative confirmation. The Governor's appointment alone is the appointment.

Q: Can the Governor remove the Commissioner?
A: Yes, at will. Section 4-3-112(b) provides that the Commissioner holds office at the Governor's pleasure.

Q: Can the legislature remove the Commissioner?
A: No, on the AG's analysis. The Commissioner is not on the constitutional list of impeachable officers, and impeachment requires "crime" committed in "official capacity," which lacking qualifications likely does not satisfy. The General Assembly also lacks standing to bring removal litigation.

Q: What is quo warranto?
A: A statutory writ derived from English common-law roots. It allows the State to sue to remove someone holding or exercising a public office without proper authority. Tennessee's modern statutory version is at § 29-35-101 et seq. The action belongs to the State, with the District and State Attorneys General as the proper officers.

Q: Can a private citizen sue to remove the Commissioner directly?
A: No. A citizen can prompt a quo warranto action by providing information and posting security for costs (§ 29-35-110(b)), but the litigation belongs to the State and is controlled by State counsel.

Q: What does "literary and scientific attainments" mean?
A: A reasonable degree of prior knowledge in the subjects taught in Tennessee's public schools, sufficient to manage the Department of Education effectively. Davis v. Evans (1909) is the key case interpretation.

Q: How specific are the qualification requirements?
A: Deliberately general. The opinion notes that the General Assembly chose not to describe the requirements with greater "precision," giving the Governor flexibility to apply judgment in light of varying circumstances and the changing nature of the Department's business.

Background and statutory framework

The Tennessee Department of Education was reorganized in 1923 (1923 Pub. Acts ch. 7) into an executive branch agency led by a "chief executive officer," the Commissioner of Education. Two years later, the General Education Law (1925 Pub. Acts ch. 115) imposed three qualifications: literary and scientific attainments, skill and experience in school administration, and qualification to teach in the school of highest standing over which the Commissioner has authority. Those three requirements survive today in Tenn. Code Ann. § 4-3-802(b).

Each phrase has antecedents in 19th-century Tennessee education statutes. "Literary and scientific attainments" first appeared in the 1873 Public Schools Act applied to county superintendents. The Tennessee Supreme Court interpreted the 1873 phrase in State ex rel. Davis v. Evans, 122 S.W. 81 (Tenn. 1909), as a "general" but "indeterminate" standard meaning a reasonable degree of prior knowledge in the subjects taught in school.

"Qualified to teach" had separate antecedents in 1855-56 ("Acts to prevent incompetent persons from teaching"), 1870 (Common Schools Law), 1873 (certificate-of-qualification regime), and 1919 (uniform qualifications and certification). By 1925, "qualified" was understood as distinct from "certified": certification was evidence of qualification, but qualification itself meant education, experience, and strength of character.

The Governor alone appoints the Commissioner. The General Assembly explicitly did not include Senate confirmation in 1925 (compare 1873 Pub. Acts ch. 25, § 3, p.39, which had required confirmation for the State Superintendent's selection). The Commissioner serves at the Governor's pleasure.

For removal: the Tennessee Constitution lists impeachable officers in art. V, § 4; the Commissioner is not on the list. The constitutional impeachment power requires acts that constitute "crime" committed in "official capacity," which the AG concludes is unlikely to apply to lack of qualifications.

For litigation: the General Assembly likely lacks juridical standing (Medicine Bird, State ex rel. Tenn. Gen. Assembly v. U.S. Dep't of State (6th Cir. 2019)) and has no statutory role in determining qualifications. Quo warranto under § 29-35-101 et seq. is the exclusive judicial remedy. The action is controlled by the State, with private relators able to prompt but not control. The State Attorney General has oversight authority under § 8-6-109(b)(1) and can dismiss at any time (Warner v. Agee, 1900; Red River Turnpike, 1904).

Citations

Constitutional and statutory provisions:
- Tenn. Const. art. II, § 1; art. V, § 4
- Tenn. Code Ann. § 4-3-101, § 4-3-112(b), § 4-3-802(b), (c)
- Tenn. Code Ann. § 8-6-109(b)(1)
- Tenn. Code Ann. § 29-35-101 et seq.; § 29-35-109; § 29-35-110(b)
- Historical: 1923 Pub. Acts ch. 7; 1925 Pub. Acts ch. 115; 1873 Pub. Acts ch. 25; 1855-56 Pub. Acts ch. 114; 1870 Pub. Acts ch. 64; 1895 Pub. Acts ch. 54; 1919 Pub. Acts ch. 40

Cases:
- State ex rel. Davis v. Evans, 122 S.W. 81 (Tenn. 1909), interpretation of "literary and scientific attainments"
- Bateman v. Smith, 194 S.W.2d 336 (Tenn. 1946), "shall" as mandatory
- Stewart v. State, 33 S.W.3d 785 (Tenn. 2000), "and" as conjunctive
- Lawson v. Hawkins Cnty., 661 S.W.3d 54 (Tenn. 2023); Crotty v. Flora, 676 S.W.3d 589 (Tenn. 2023), natural and ordinary meaning
- Hicks v. State, 945 S.W.2d 706 (Tenn. 1997); Wilson v. Johnson Cnty., 879 S.W.2d 807 (Tenn. 1994), presumption of legislative knowledge
- Hurst v. Warner, 60 N.W. 440 (Mich. 1894); Wayman v. Southard, 23 U.S. 1 (1825); Leeper v. State, 53 S.W. 962 (Tenn. 1899), non-delegation doctrine
- Huffines v. Gold, 288 S.W. 353 (Tenn. 1926), qualification vs. certification
- House v. Craveling, 250 S.W. 357 (Tenn. 1923); Williams v. Boughner, 46 Tenn. 486 (1869), at-pleasure removal
- State ex rel. Comm'r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001), AG as principal civil litigator
- State ex rel. Tenn. Gen. Assembly v. U.S. Dep't of State, 931 F.3d 499 (6th Cir. 2019), General Assembly standing
- Quo warranto cases: State ex rel. Cates v. Standard Oil, 110 S.W. 565 (Tenn. 1908); Attorney General v. Leaf, 28 Tenn. 753 (1849); State v. Wright, 57 Tenn. 237 (1872); State v. McConnell, 71 Tenn. 332 (1879); State ex rel. Johnson v. Campbell, 76 Tenn. 74 (1881); Snow v. Pearman, 436 S.W.2d 861 (Tenn. 1968); State ex rel. Harris v. Brown, 6 S.W.2d 560 (Tenn. 1928); State ex rel. Wallen v. Miller, 304 S.W.2d 654 (Tenn. 1957); Warner v. Agee, 59 S.W. 340 (Tenn. 1900); Red River Turnpike Co., 79 S.W. 798 (Tenn. 1904); State v. Simmons, 610 S.W.2d 141 (Tenn. Crim. App. 1980)
- Falls v. Goins, 673 S.W.3d 173 (Tenn. 2023); Lovlace v. Copley, 418 S.W.3d 1 (Tenn. 2013); State ex rel. Thurman v. Scott, 195 S.W.2d 617 (Tenn. 1946), at-pleasure protection

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-007.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 23, 2024
Opinion No. 24-007

Interpretation of Tennessee Code Annotated § 4-3-802(b) and Related Issues

Question 1

Must an individual satisfy all the following statutory requirements in Tennessee Code Annotated § 4-3-802(b) to qualify for appointment to serve as the chief executive officer of the Tennessee Department of Education:
a. be a person of literary and scientific attainments;
b. be of skill and experience in school administration; and
c. be qualified to teach in the school of the highest standing of which the commissioner has authority?

Opinion 1

Yes.

Question 2

What is contemplated and/or meant by the statutory requirement to "be a person of literary and scientific attainments"?

Opinion 2

This phrase likely refers to a person's literary and scientific knowledge relating to Tennessee's school curriculum. It imposes a general standard to be administered principally by the Governor through the appointment and removal process.

Question 3

What is contemplated and/or meant by the statutory requirement to "be a person . . . of skill and experience in school administration"?

Opinion 3

This phrase likely refers to a person's abilities and prior involvement in school administration. It imposes a general standard to be administered principally by the Governor through the appointment and removal process.

Question 4

What is contemplated and/or meant by the statutory requirement to "be qualified to teach in the school of the highest standing over which the commissioner has authority"?

Opinion 4

This phrase likely refers to the education, experience, and strength of character necessary to teach. It imposes a general standard to be administered principally by the Governor through the appointment and removal process. The phrase likely does not require a certification to teach.

Question 5

Is an individual who fails to meet all three statutory requirements legally qualified to be appointed to serve as the Chief Executive Officer of the Department of Education?

Opinion 5

See Response to Question 1.

Question 6

Is an individual who fails to meet all three statutory requirements legally qualified to serve as the Chief Executive Officer of the Department of Education?

Opinion 6

See Response to Question 1.

Question 7

Does the legislature have any legal authority to remove an unqualified Chief Executive Officer of the Department of Education?

Opinion 7

The General Assembly has no authority to remove the Commissioner of Education.

Question 8

Are any legal remedies available to the state legislature or general public to remove an unqualified Chief Executive Officer of the Department of Education?

Opinion 8

The General Assembly likely lacks any viable route to removing the Commissioner of Education from office through litigation. The State—acting through its District and State Attorneys General—may have a right to seek court-ordered removal of an unqualified state officer through Tennessee's "quo warranto" statute. Individual members of the public likely have no direct avenue to prosecute a "quo warranto" action or other removal litigation.

Question 9

Who would have a right of legal action to pursue or request said remedy or remedies?

Opinion 9

See Response to Question 8.

ANALYSIS

1. In 1923, the General Assembly passed a law "reorganiz[ing] the administration of the State in order to secure better service[] and . . . promote economy and efficiency in the work of the [Tennessee] government." 1923 Pub. Acts ch. 7, p.8. Among numerous other provisions, this legislation discarded the office of Superintendent of Public Instruction and established a new "Department of Education" to be run by a "chief executive officer" called the "Commissioner of Education." Id. §§ 1–2, pp.8–9. As initially conceived, the new office had no set qualifications other than "appoint[ment] by the Governor." 1923 Pub. Acts ch. 7, § 2, p.9. But two years later, in the General Education Law, the General Assembly imposed qualifications that remain applicable today. See 1925 Pub. Acts ch. 115; Tenn. Code Ann. § 4-3-802(b).

As relevant here, those qualifications include that the Commissioner be (1) "a person of literary and scientific attainments," (2) a person "of skill and experience in school administration," and (3) a person "qualified to teach in the school of the highest standing over which [the Commissioner] has authority." 1925 Pub. Acts ch. 115, § 4, p.314.

We are not aware of any judicial precedent construing this statute or analyzing its validity. Even so, we believe Tennessee courts would likely read the text to impose compounded office-holder requirements. To begin, the text lists characteristics that the Commissioner "shall" possess, Tenn. Code Ann. § 4-3-802(b), and Tennessee courts typically construe "shall" to mean "must," Bateman v. Smith, 194 S.W.2d 336, 336 (Tenn. 1946). In addition, the text connects these mandatory characteristics with the terms "and" and "also," Tenn. Code Ann. § 4-3-802(b), which Tennessee courts "usually" treat as "conjunctive," Stewart v. State, 33 S.W.3d 785, 792 (Tenn. 2000). Thus, because context does not appear to dictate otherwise, we presently believe that Tenn. Code Ann. § 4-3-802(b) requires the Commissioner of Education to possess all the attributes listed.

2. As noted, no court has ever construed the century-old statute requiring that the Commissioner of Education "be a person of literary and scientific attainments." Tenn. Code Ann. § 4-3-802(b). Were a court to construe the requirement now, it would likely start by affording the statutory "terms their natural and ordinary meaning in . . . context," Lawson v. Hawkins Cnty., 661 S.W.3d 54, 59 (Tenn. 2023), as they "would have been understood" in 1925, Crotty v. Flora, 676 S.W.3d 589, 611 (Tenn. 2023).

Readers in 1925, however, would likely have recognized this particular statutory language as having been borrowed from much older law. Beginning in 1873, the General Assembly required by statute that county-level public school "Superintendents" be "person[s] of literary and scientific attainment[]." 1873 Pub. Acts. ch. 25, § 8, p.41. A court reviewing the 1925 statute would thus "presume that the [General Assembly] ha[d] knowledge of" the "prior" law when it applied the exact same requirement to the Commissioner of Education fifty years later. Hicks v. State, 945 S.W.2d 706, 707 (Tenn. 1997). In addition, the court would "presume" the General Assembly was "fully aware of any judicial constructions" given to the language since its initial passage. Id. From this, the court would likely infer that the "attainments" requirement applied the same type of qualification on the Commissioner of Education as it had applied to County Superintendents for the prior five decades.

This does not mean the requirement has precise contours. In fact, its history confirms just the opposite.

From the mid-1870s to the mid-1890s, each County Court "judg[ed]" for itself whether a locally "elected" County Superintendent was "qualif[ied]" to serve through his or her "literary and scientific attainment." State ex rel. Davis v. Evans, 122 S.W. 81, 83 (Tenn. 1909). But the General Assembly took away the County Courts' review power in 1895, opting instead to have the requirement administered by local "examin[ing] . . . commission[s]" acting under state-wide "rules and regulations." Id. at 82–83. This change eventually prompted a legal challenge claiming the new system impermissibly "devolved legislative power upon the State Board of Education." Id. at 83. And in rejecting that argument, the Tennessee Supreme Court explained both what the "attainments" requirement meant and how it should be implemented.

First, the Court saw the qualification as "general" but given meaning by context. Id. That is, the law was not "so general" as to allow "the State Board [of Education]" to effectively "declare the qualifications necessary for the office." Id. Rather, the "literary and scientific attainments" requirement had to be viewed in light of the "subjects to be taught in public schools," which the General Assembly had explicitly legislated in detail. Id. Against that backdrop, the Court read the "attainments" requirement as referring to "a reasonable degree of" prior knowledge "in respect to the subjects that were to be taught" in school. Id. And that qualification made sense, because it would ensure "proper judgment in the selection . . . and . . . oversight" of teachers. Id.

Second, the Court thought it "impracticable" for the General Assembly to define the "attainments" qualification with any greater "precision." Id. Instead, "the nature of things" dictated that this qualification "must be left somewhat indeterminate" to account for varying circumstances. Id. On this point, the Court offered a long string of precedents upholding similar legislative efforts to "commit something to the discretion of [an]other department[]." Hurst v. Warner, 60 N.W. 440, 441 (Mich. 1894) (quoting Wayman v. Southard, 23 U.S. (10 Wheat) 1, 46 (1825)). In each case, the court had determined that a law's "details" could "be carried out by" some non-legislative actor. Leeper v. State, 53 S.W. 962, 967 (Tenn. 1899). And that was because, although "[t]he legislature cannot delegate its power to make a law, . . . it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend." Id.

Third, the Court thought it "highly proper" for the General Assembly to provide for "competent boards" to apply the "indeterminate" attainments standard. Davis, 122 S.W. at 83.

Having been clearly announced over a decade before the 1925 General Education Law, this analysis helps inform what it means for the Commissioner of Education to be a person of literary and scientific attainments.

To begin, the lawmakers understood that this language would impose a "general" and "indeterminate" standard, which would draw much of its meaning from context. Id. In this instance, the phrase would invoke "a reasonable degree of" prior knowledge "in respect of the subjects . . . taught" in Tennessee's public schools. Id.

At the same time, the General Assembly chose not to describe the requirement with any greater "precision," despite the fact that the statutory language had open and acknowledged ambiguity. Id.

Finally, the General Assembly dropped the board-certification requirement applied to County Superintendents, opting instead to vest "appoint[ment]" power in "the Governor" alone. 1925 Pub. Acts ch. 115, § 4, p.314. By 1925, Tennesseans already had fifty-years' experience with public officials trying to determine what it meant to be qualified by "literary and scientific attainments." 1873 Pub. Acts. ch. 25, § 8, p.41.

Knowing all of this, the General Assembly chose to grant the Governor unchecked authority to appoint the Commissioner of Education. See 1925 Pub. Acts ch. 115, § 4, p.314. It could have, but did not, subject the Governor's choice to legislative "confirm[ation]." 1873 Pub. Acts ch. 25, § 3, p.39. Nor did it require a "certificate of qualification" from some expert third-party board, as past laws had. 1895 Pub. Acts ch. 54, § 1, p.70.

The statute's text, structure, and history together give rise to three conclusions. First, to have "literary and scientific attainments" means to have knowledge of school curriculum necessary to manage the Department of Education effectively. Second, that flexibly worded standard requires a fact-bound exercise of judgment to determine whether a particular candidate possesses the requisite knowledge. Third, by vesting the Governor with sole authority to appoint whoever he or she finds to have the appropriate attainments, the law limits (and perhaps eliminates) post-appointment review by coordinate branches of government.

3. The statutory requirement that a person "be of skill and experience in school administration" follows the same arc. While the 1873 law required County Superintendents, "when practicable," to have "skill and experience in the art of teaching," the 1925 law similarly required the Commissioner of Education to have "skill and experience in school administration." The pre-1925 application of this "skill and experience" requirement to County Superintendents thus informs its present application to the office of Commissioner of Education.

As with the "attainments" requirement, the "skill and experience" requirement imposes a general standard that draws meaning from context. It requires the Commissioner to have sufficient ability and prior involvement in school administration to manage the Department of Education effectively. And it vests substantial discretion in the Governor, allowing for limited (if any) post-appointment review by the legislative or judicial branches.

4. The "qualified to teach" requirement has both roots and meaning similar to the "attainments" and "experience" requirements. Specifically, the requirement that the Commissioner of Education be "qualified to teach" has roots in earlier laws attempting to assure teachers were "competent." In the mid-1850s, before the State had much of any role in the education system, the General Assembly perceived a need to "prevent incompetent persons from teaching" and enacted legislation directed toward that perceived problem. 1855–56 Pub. Acts ch. 114, p.127.

Fifteen years later, the General Assembly introduced such certified competence as a marker that one was "qualified to teach." Under the 1870 Common Schools Law, each "County Board of Education" had to "prescribe the mode and manner" of "examin[ing]" teachers, as well as "the extent of qualifications required" for an applicant to fill the position. 1870 Pub. Acts ch. 64, § 51, p.109. The law then prohibited the local "Common School Commissioners" from "employ[ing] any person to teach school, unless he or she first produce[d] a certificate that he or she [was] competent to teach." Id. § 50, p.109. Three years later, the General Assembly simplified these provisions by providing that "no teacher of Public Schools shall . . . receive any pay from the public funds unless he or she ha[s] a certificate of qualification, [issued] by the County Superintendent for the county within which he or she is employed." 1873 Pub. Acts ch. 25, § 26, pp.45–46. Then, in 1919, the General Assembly deemed it necessary to legislatively "define the qualifications . . . of public-school teachers" and "provide a uniform method . . . for certif[ying]" people to teach. 1919 Pub. Acts ch. 40, p.102.

To be clear, the law did not equate "certification" with "qualification." Instead, it employed both terms in a way that comported with their contemporary legal meanings. That is, the 1919 enactment treated certification as proof or evidence of qualification, requiring the "certificate[s] . . . to provide a means whereby the fact of qualification . . . may be ascertained by persons interested." Huffines v. Gold, 288 S.W. 353, 353 (Tenn. 1926). "Qualification" itself was in turn achieved "by education[,] experience," and strength of character. Id. In this way, the certification process existed "to prevent [unqualified] person[s] from" serving as teachers. Id.

This regime would have been familiar to those who imposed the "qualified to teach" requirement on the Commissioner of Education in 1925. And its history shows that this requirement, too, gives the Governor power to exercise considerable judgment. As with the "attainments" and "experience" requirements just discussed, the "qualified to teach" requirement speaks to the attributes that make a teacher "competent." 1870 Pub. Acts ch. 64, § 50, p.109. And although teachers and some administrators had to be both "qualified" and "certifi[ed]," the law imposed no such "certification" requirement on the new head of the Department of Education. In fact, in sharp contrast to some of the Commissioner's subordinates—who needed "certificate[s] to teach in the schools . . . over which [they] exercise[d] supervision"—the Commissioner did not need to be certified but only "qualified." And the task of choosing a Commissioner "qualified to teach" was given to the Governor.

5. The response to Question 1 resolves Question 5.

6. The response to Question 1 resolves Question 6.

7. The General Assembly has no authority to remove the Commissioner of Education. The Tennessee Constitution "divide[s]" the "powers of the Government . . . into three distinct departments: the Legislative, Executive, and Judicial." Tenn. Const. art. II, § 1. The General Assembly created the Department of Education by statute as an "administrative" body within the executive branch. 1923 Pub. Acts ch. 7, § 1, p.8; see Tenn. Code Ann. § 4-3-101; see House v. Craveling, 250 S.W. 357, 358–59 (Tenn. 1923). By statute, the Department's Commissioner "hold[s] office at the pleasure of the governor." 1923 Pub. Acts ch. 7, § 2, p.9; see Tenn. Code Ann. § 4-3-112(b). This means that the Governor has primary authority and "discretion" to "remov[e]" the Commissioner of Education "at will." Williams v. Boughner, 46 Tenn. (6 Cold.) 486, 489 (1869); see House, 250 S.W. at 363.

Although the Tennessee Constitution does empower the General Assembly to remove certain officials in the other branches through impeachment, see Tenn. Const. art. V, § 4, that power likely does not allow the removal of a Commissioner of Education for lacking the requisite "attainments," "experience," or "qualif[ication]" to teach, Tenn. Code Ann. § 4-3-802(b). To begin, the Tennessee Constitution lists the officers "liable to impeachment" and "removal from office," and that list does not include the Commissioner of Education. Id. Moreover, the Tennessee Constitution specifies that impeachment "liab[ility]" arises from acts which, "in the opinion of the House of Representatives," constitute "crime[s]" committed in an officer's "official capacity." Id. Although this language likely grants the House some flexibility to determine what constitutes a "crime," id., we doubt that a Commissioner of Education could act in his or her "official capacity" to hold office without qualification. Id. We also doubt that holding this office without the requisite attainments, experience, or teaching acumen could, in and of itself, constitute a "crime." Id.

8. As discussed, the General Assembly has already provided a statutory framework for ensuring that the Commissioner of Education is qualified. The General Assembly has set the office-holder requirements. Through those requirements, it has imposed general guidelines and granted substantial leeway to the Governor.

If the General Assembly nonetheless sought to have the judicial branch order removal of a Commissioner of Education from office through legal proceedings, it would face two substantial obstacles. First, our research has uncovered no positive law or precedent supporting the idea that the Tennessee General Assembly is a juridical person "with capacity and standing to litigate." State ex rel. Comm'r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, (Tenn. Ct. App. 2001). This is not surprising, given the General Assembly's core power and purpose is "to make and repeal laws," rather than "enforce" or "apply" them. State ex rel. Tenn. Gen. Assembly v. U.S. Dep't of State, 931 F.3d 499, 517 n.13 (6th Cir. 2019); see also id. at 507–19.

Second, even assuming the General Assembly is a juridical person, we have found no law granting the General Assembly any role in determining the Commissioner's qualifications or any right to challenge the Commissioner's qualifications. Just the opposite, the General Assembly has explicitly and voluntarily relinquished any "confirm[ation]" role it might otherwise have played in the Commissioner of Education's selection. 1873 Pub. Acts ch. 25, § 3, p.39; see Tenn. Code Ann. § 4-3-802(c). At the same time, the General Assembly has quite specifically mandated that the Commissioner serve at the Governor's "pleasure." Tenn. Code Ann. § 4-3-112(b). Those provisions create a baseline inference that Tennessee law prohibits the Commissioner's removal—at least for lack of qualification—by other, more "general[ized]" means. Falls v. Goins, 673 S.W.3d 173, 180 (Tenn. 2023) (quoting Lovlace v. Copley, 418 S.W.3d 1, 20 (Tenn. 2013)); cf. State ex rel Thurman v. Scott, 195 S.W.2d 617, 618 (Tenn. 1946).

Those caveats aside, the most likely avenue for litigating the Commissioner's qualifications is through Tennessee's "quo warranto" statute. See Tenn. Code Ann. § 29-35-101 et seq. "[A]t some unascertained period early in the history of the common law," the courts of England devised the "writ of quo warranto" to remove any "usurpe[r]" of a public "office." State ex rel. Cates v. Standard Oil Co., 110 S.W. 565, 572 (Tenn. 1908). It fell "into disuse in England prior to . . . 1715" and was thus never "adopt[ed]" as part of the common law in Tennessee. Attorney General v. Leaf, 28 Tenn. (9 Hum.) 753, 755 (1849). But in the mid-1800s, the General Assembly introduced a statutory version of the ancient quo warranto action, providing the State of Tennessee itself a "remedy against the usurpation of any public office." State v. Wright, 57 Tenn. (10 Heisk.) 237, 242 (1872).

Over time, the Tennessee courts have made this a highly circumscribed and exclusive mechanism for testing a public official's qualification through litigation. See Snow v. Pearman, 436 S.W.2d 861, 864 (Tenn. 1968); Wright, 57 Tenn. (10 Heisk.) at 241–47; State ex rel. Harris v. Brown, 6 S.W.2d 560, 561 (Tenn. 1928). The statute says that "the [S]tate" may bring a civil "action . . . against . . . any person unlawfully hold[ing] or exercis[ing] any public office or franchise within [Tennessee]." Tenn. Code Ann. § 29-35-101(1). And the Tennessee courts have "construe[d]" it "so as to interfere as little as possible with the previous practice[s]" surrounding the common-law writ. State v. McConnell, 71 Tenn. (3 Lea) 332, 337 (1879). As a result, the law permits only "a suit by the State to subserve the public interests," in which "the State [must be] represented by its proper officer[s]." Id. at 339.

It follows that the District and State Attorneys General must litigate every quo warranto action. Although the statute contemplates suits "at the relation of a private individual," Tenn. Code Ann. § 29-35-110(b), this does not mean a private person can litigate the State's right of action. Instead, it means only that a private person can prompt a quo warranto suit by providing "information" to an attorney for the State and "giv[ing] security for costs." State ex rel. Johnson v. Campbell, 76 Tenn. (8 Lea) 74, 76 (1881). In the alternative, a quo warranto suit can be "brought by the attorney general for the district or county, when directed so to do by the general assembly, or by the governor and attorney general of the state concurring." Tenn. Code Ann. § 29-35-109. Once the suit has started, the State's "consent is necessary to [its] continuation." State ex rel. Warner v. Agee, 59 S.W. 340, 340 (Tenn. 1900). This means that if at any time State's counsel deems the suit contrary to the State's "best interest[,] . . . it is his right to move, and the duty of the court to order, . . . dismissal." Id.

This also assures the State Attorney General's proper oversight role. Indeed, Tennessee law makes clear that the State Attorney General and Reporter serves "as the State's principal civil litigator." Medicine Bird, 63 S.W.3d at 772. "By statute, [he] is responsible for '[t]he trial and direction of all civil litigat[ion] . . . in which the state of Tennessee . . . may be interested.'" Id. (quoting Tenn. Code Ann. § 8-6-109(b)(1)).

The upshot is that the "general public" may seek to have an unqualified Commissioner of Education removed through quo warranto proceedings, but it must do so through the personage of the State, represented by the State's designated Attorneys General. Indeed, "[i]n the absence of constitutional or statutory regulations providing otherwise, quo warranto proceedings are the only proper remedy in cases in which they are available." State ex rel. Wallen v. Miller, 304 S.W.2d 654, 658 (Tenn. 1957).

9. We understand this question as asking who may acquire a right to bring a legal action seeking removal of an unqualified Commissioner of Education. As we have explained in Response to Question 8, that right can only vest in the State.

JONATHAN SKRMETTI
Attorney General and Reporter

J. MATTHEW RICE
Solicitor General

GABRIEL KRIMM
Assistant Solicitor General

Requested by:
The Honorable Caleb Hemmer
State Representative
Suite 412 Cordell Hull Building
Nashville, Tennessee 37243