Before the 2013-14 school year, could a Shelby County municipality take any action to start its own school district, like holding a referendum or hiring staff?

Subject

Opinion No. 12-39, Establishment of New School Districts by Municipalities in Shelby County, March 20, 2012

Plain-English summary

In 2010-2011, the Memphis City Schools board surrendered its charter, triggering the merger of the Memphis school system into the Shelby County school system. The transition was scheduled to take effect at the beginning of the 2013-14 school year, three years after the surrender vote. During that transition window, the suburban municipalities of Shelby County (Bartlett, Collierville, Germantown, Lakeland, Arlington, and Millington) wanted to know whether they could start preparing to operate their own school systems instead of joining the merged Shelby County system. Senator Beverly Marrero asked the AG.

The AG said no. The Tennessee statutes that ordinarily prohibit the creation of new municipal or special school districts (Tenn. Code Ann. §§ 6-58-112(b) and 49-2-501(b)(3)) remained in effect. The exception added by 2011 Tenn. Pub. Acts Ch. 1, codified as Tenn. Code Ann. § 49-2-502(b), would lift those prohibitions only "[f]rom and after the effective date of the transfer of the administration of the schools in the special school district to the county board of education." Until that date, no municipality in Shelby County could establish a school district. And "establishment" was broad: it included holding referenda, electing a school board, hiring a director of schools, hiring teachers, or building schools. All of those actions were premature.

This was a meaningful constraint. Suburban Shelby County municipalities wanted to be ready to operate their own schools the day the merger took effect. The AG's reading meant they had to wait. The reason given was practical: the transition could be delayed or restructured by the comprehensive transition plan being developed, so locking in municipal preparations before the transition was complete risked acting on uncertain assumptions.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The legal landscape around Shelby County's school districts evolved substantially after this opinion: the merger occurred, suburban municipalities ultimately did create their own school districts, and litigation continued for years. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical background and statutory framework

The three intersecting statutes

Three statutes governed the question:

• Tenn. Code Ann. § 6-58-112(b): "An existing municipality that does not operate a school system or a municipality incorporated after May 19, 1998, may not establish a school system." This banned new municipal school systems in most contexts.

• Tenn. Code Ann. § 49-2-501(b)(3): "No additional special school districts may be created after April 30, 1982, but existing operating districts may merge or consolidate."

• Tenn. Code Ann. § 49-2-502: the special transfer mechanism. Subsection (a) addressed voluntary transfers of special school districts to county systems via referendum. Subsection (b), added in 2011 by Public Chapter 1, applied specifically to situations where the transfer would increase county school enrollment by 100% or more, mandating a three-year transition and the development of a comprehensive transition plan.

Crucially, § 49-2-502(b)(3) said: "From and after the effective date of the transfer of the administration of the schools in the special school district to the county board of education the restrictions imposed on the creation of the municipal school districts, in § 6-58-112(b), and special school districts, in § 49-2-501(b)(3), shall no longer apply in such county."

The Memphis/Shelby context

Memphis City Schools had been a special school district. In 2010, the Memphis school board voted to surrender its charter. In 2011, the Memphis voters confirmed by referendum the transfer of the school system to the Shelby County Board of Education. Because the transfer would more than double Shelby County's school enrollment, § 49-2-502(b) applied: a three-year transition was triggered, ending at the start of the 2013-14 school year. Bd. of Educ. of Shelby County v. Memphis City Bd. of Educ., No. 11-2101, 2011 WL 3444059 (W.D. Tenn. Aug. 8, 2011), confirmed the timeline.

A transition planning commission of 21 members was assembled to develop the comprehensive transition plan addressing all the operational details of the merger.

Why suburbs wanted to start early

The suburbs of Shelby County feared losing local control of their schools in the merged system. Knowing the bar on new municipal districts would lift "from and after" the merger's effective date, they wanted to be ready: hold a charter referendum, elect a board, hire administrators, plan facilities. The earlier they started, the smoother the post-transition launch.

The AG's textual hard line

The AG applied a strict reading of § 49-2-502(a)(3): the prohibitions "shall no longer apply" only "from and after the effective date of the transfer." Until then, they continued to apply. The AG cited Rich v. Tennessee Bd. of Med. Examiners, 350 S.W.3d 919, 926 (Tenn. 2011) (quoting Bellsouth Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997)), for the proposition that courts "presume that the legislature says in a statute what it means and means in a statute what it says there."

The opinion read the bar to reach the holding of a referendum itself, not just later steps. The AG wrote that a municipality "can take no action, which would include the holding of a referendum, to establish a school district" until from and after the start of the 2013-14 school year, assuming the transition was complete by that date.

Why the AG drew a hard line

The opinion gave two reasons for reading the bar strictly. First, the transition might be delayed or restructured. If municipalities pre-built their school systems and then the transition got pushed back, those new systems would exist in a legal gray zone. Second, the transition plan itself, when finalized, might make a separate municipal system unnecessary or unattractive. Reading the bar strictly preserved municipal flexibility to evaluate the final transition plan before committing.

The downstream activities

The questioner had asked about specific preparatory steps: electing a school board, hiring a director of schools, hiring teachers, and constructing or purchasing school buildings. Each of these required action by an already-established school system under Tenn. Code Ann. §§ 49-2-203 and 49-2-301. Since no Shelby County municipal school system could be established before the transition was complete, none of those preparatory acts could occur.

Common questions

What was the practical effect on Shelby County suburbs in 2012?

They could not take legally meaningful steps toward forming their own school districts during the transition period. Planning conversations and informal community discussions weren't prohibited, but formal actions, including referenda, board elections, and hiring, were. The suburbs had to wait until the transition completed.

What if the transition got delayed past 2013-14?

The opinion read § 49-2-502(b) as keying the change-of-bar to the actual effective date of the transfer, not the original target date. So if the transition slipped, the bar continued. This was actually one of the AG's stated reasons for reading the rule strictly: a slipped transition could leave premature districts in limbo.

Could a municipality at least begin a feasibility study?

The opinion did not address informal preparatory activities like feasibility studies. The bar applied to "establishing" a school system. A purely advisory study committee that did not commit municipal resources to creating a system would arguably not constitute "establishment." But formal acts triggering the statutory machinery (referenda, hiring of staff, purchase of buildings) were barred.

Was holding a referendum itself barred, or just the later steps?

The opinion put the referendum on the barred side of the line. The AG wrote that a municipality "can take no action, which would include the holding of a referendum, to establish a school district" until the transition was complete. So the referendum was not treated as a permissible preparatory step ahead of the transfer date; it fell within the actions the statutes blocked.

What happened after this opinion?

The Memphis/Shelby merger took effect in 2013, and shortly after, the Shelby County suburbs did create their own municipal school districts. That outcome was litigated extensively. The 2012 AG opinion was a snapshot of the legal landscape as the transition was being planned, not a final word on the eventual reorganization.

Citations

• Tenn. Code Ann. § 6-58-112(b) (no new municipal school systems for municipalities not already operating one)
• Tenn. Code Ann. § 49-2-203 (board of education authority)
• Tenn. Code Ann. § 49-2-301 (hiring of director of schools)
• Tenn. Code Ann. § 49-2-501(b)(3) (no new special school districts after April 30, 1982)
• Tenn. Code Ann. § 49-2-502 (transfer of special school district to county; municipal-district bar lifted "from and after the effective date")
• 2011 Tenn. Pub. Acts Ch. 1 (adding § 49-2-502(b))
• Bd. of Educ. of Shelby County v. Memphis City Bd. of Educ., No. 11-2101, 2011 WL 3444059 (W.D. Tenn. Aug. 8, 2011)
• Rich v. Tennessee Bd. of Med. Examiners, 350 S.W.3d 919 (Tenn. 2011)
• Bellsouth Telecomms., Inc. v. Greer, 972 S.W.2d 663 (Tenn. Ct. App. 1997)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-039.pdf

Original opinion text

Establishment of New School Districts by Municipalities in Shelby County

QUESTION

Before the beginning of the 2013-14 school year, does a municipality within Shelby County have the authority to take any formal action, pursuant to its charter or applicable Tennessee law, to establish a new school system including, but not limited to, holding a referendum for such purpose, electing a school board, employing a director of schools and other school personnel, and constructing or purchasing school buildings and facilities?

OPINION

Tennessee law currently prohibits a municipality in Shelby County from taking any action to establish a new school system.

ANALYSIS

This opinion request concerns the interplay between three Tennessee statutes addressing the authority of a municipality in Shelby County to establish a school system. Initially, Tenn. Code Ann. § 6-58-112(b) specifically states that "[a]n existing municipality that does not operate a school system or a municipality incorporated after May 19, 1998, may not establish a school system." In a similar manner, Tenn. Code Ann. § 49-2-501(b)(3) provides that, subject to limited exceptions not relevant to Shelby County, "[n]o additional special school districts may be created after April 30, 1982, but existing operating districts may merge or consolidate."

However, the restrictions in both of these statutes are obviated under certain circumstances by Tenn. Code Ann. § 49-2-502. This statute was amended in 2011 by Public Chapter 1 to add subsection (b), which applies to Shelby County under the facts presented in this opinion request. As amended, § 49-2-502 states:

(a) The school board, school commissioners, school trustees or other duly constituted administrative officials of any special school district are authorized and empowered to transfer the administration of the schools in the special school district to the county board of education of the county in which the special school district is located. Before a transfer is effectuated, however, a referendum shall first be conducted on the subject, and the school system of the special school district shall not be transferred to the county unless a majority of the voters who cast votes in the referendum vote in favor of the transfer. The referendum shall be held by the county election commission when requested by the school board of the special school district, and the expenses of the election shall be paid from the funds of the special school district.

(b)(1) Notwithstanding subsection (a) or any other law to the contrary, if the proposed transfer of the administration of the schools in the special school district to the county board of education would result in an increase in student enrollment within the county school system of one hundred percent (100%) or more, and if a majority of the voters who cast votes in the referendum vote in favor of the transfer, then a comprehensive transition plan shall be developed, and the transfer shall take effect at the beginning of the third, full school year immediately following certification of the election results.

(2) The comprehensive transition plan shall be developed by a transition planning commission. The transition plan shall consider and provide for each of the matters set forth in §§ (i) and 49-2-1204. Prior to its implementation, the transition plan shall be submitted to the department of education for review and comments. The transition planning commission shall consist of twenty-one (21) members, as follows:

(A) The county mayor, the chair of the county board of education and the chair of the board of education of the special school district shall serve as ex officio members of the commission;

(B) The county mayor, the chair of the county board of education and the chair of the board of education of the special school district shall each appoint five (5) competent citizens to serve as members of the transition planning commission; and

(C) The governor, the speaker of the senate and the speaker of the house of representatives shall jointly appoint three (3) competent citizens to also serve as members of the transition commission.

(3) From and after the effective date of the transfer of the administration of the schools in the special school district to the county board of education the restrictions imposed on the creation of the municipal school districts, in § 6-58-112(b), and special school districts, in § 49-2-501(b)(3), shall no longer apply in such county.

Tenn. Code Ann. § 49-2-502 (emphasis added). See also 2011 Tenn. Pub. Acts 1.

The voters of the City of Memphis special school district have by referendum approved the transfer of the administration of the schools in the special school district to the Shelby County Board of Education. See Board of Educ. of Shelby County, Tennessee v. Memphis City Board of Educ., No. 11-2101, 2011 WL 3444059, at 2-6 (W.D. Tenn. Aug. 8, 2011) (hereinafter "Memphis City"). The referendum triggered the meeting of the conditions outlined by Tenn. Code Ann. § 49-2-502(b)(1); thus a comprehensive transition plan is being developed pursuant to Tenn. Code Ann. § 49-2-502(b)(2). The transfer of the City of Memphis special school district is targeted to take effect at the beginning of the 2013-14 school year, which is "the beginning of the third, full school year immediately following certification of the election results." Tenn. Code Ann. § 49-2-502(b)(1). See also Memphis City, 2011 WL 3444059, at 59-60.

Under these circumstances, the restrictions of Tenn. Code Ann. § 6-58-112(b) and Tenn. Code Ann. § 49-2-501(b)(3) continue to prohibit any municipality in Shelby County from taking any action to establish a school district or a special school district. Tenn. Code Ann. § 49-2-502(a)(3) clearly articulates that these restrictions are only lifted "[f]rom and after the effective date of the transfer of the administration of the schools in the special school district to the county board of education." Cf. Rich v. Tennessee Board of Medical Examiners, 350 S.W.3d 919, 926 (Tenn. 2011) (quoting Bellsouth Telecomms., Inc. v Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997)) (courts will "presume that the legislature says in a statute what it means and means in a statute what it says there"). Thus a municipality in Shelby County can take no action, which would include the holding of a referendum, to establish a school district until from and after the beginning of the 2013-14 school year, assuming the transition is complete by that date. Such an interpretation is buttressed by the fact that until the transition is actually effectuated, the transition could be delayed or never finalized — thereby altering or completely negating the date allowing municipalities to proceed to establish a new district — or that the transition plan ultimately developed could cause the leadership or voters of a municipality to forego any attempt to establish a new separate school district. Indeed the delay in allowing a municipality to immediately pursue establishment of a new school system seems designed to provide time to both develop a transition plan and to allow those impacted to evaluate the plan developed before having the option to pursue establishment of a new school system.

This opinion request also inquires about a number of other possible steps toward establishing a new municipal school system. Each of these activities would require an action by an already-established school system. See Tenn. Code Ann. § 49-2-203(a)(2) (granting board of education authority to manage and control all schools within its school system); Tenn. Code Ann. § 49-2-301(a) (requiring that Director of Schools be hired by the board of education); Tenn. Code Ann. § 49-2-203(a)(1) (charging the board of education with hiring teachers); Tenn. Code Ann. § 49-2-203(a)(3)(C) (granting board of education power to construct or improve school buildings). None of these actions can be accomplished prior to the establishment of a municipal school system, which can only be undertaken by a municipality in Shelby County once the transition period is complete.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ADAM B. FUTRELL
Assistant Attorney General

Requested by:
The Honorable Beverly Marrero
State Senator
312 War Memorial Building
Nashville, TN 37243