If a Tennessee charter school moves to a bigger building, can it enroll more students than its charter agreement allows?

Subject

Opinion No. 12-49, Charter Schools – Student Enrollment Capacity, May 2, 2012

Plain-English summary

Representative Gary Odom asked the AG whether a Tennessee charter school that moves into a larger building, or expands its existing building, can simply enroll more students if its charter agreement contains a capacity limit. The short answer was no.

Tennessee's Public Charter Schools Act of 2002 (Tenn. Code Ann. §§ 49-13-101 to -137) does not require a charter application or charter agreement to set a maximum enrollment, but it does bind the charter school to "all components of the application" once the chartering authority approves it (§ 49-13-110(a)). If the charter agreement includes a capacity cap, the school must operate within it until the agreement is properly amended under § 49-13-110(b). A separate provision, § 49-13-113(b), establishes enrollment preferences and a lottery for oversubscribed schools but does not override capacity terms in the charter agreement.

Currency note

This opinion was issued in 2012. 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, deadline, or remedy mentioned here.

Historical background and statutory framework

The Public Charter Schools Act framework

Charter schools in Tennessee operate under the Public Charter Schools Act of 2002, codified at Tenn. Code Ann. §§ 49-13-101 to -137. Under § 49-13-108, a charter school's application must be approved by the local board of education acting as the chartering authority. Section 49-13-107 lists what the application must contain, including "a description of the anticipated student enrollment" (§ 49-13-107(b)(9)). The Act itself does not require either the application or the resulting charter agreement to set a hard maximum or minimum enrollment.

Binding effect of the charter agreement

Tenn. Code Ann. § 49-13-110(a) provides:

The approval by the chartering authority of a public charter school application shall be in the form of a written agreement signed by the sponsor and the chartering authority, which shall be binding upon the governing body of the public charter school. The charter agreement for a public charter school shall be in writing and contain all components of the application.

Section 49-13-110(b) lets the school's governing body amend the original charter "by making petition to the chartering authority," subject to the timelines and appeal process in § 49-13-108. So if the charter agreement contains a capacity provision, the school is bound by it until the school petitions to amend and the chartering authority approves the amendment.

Section 49-13-113(b): the enrollment preferences and lottery

A separate statute, § 49-13-113(b), governs how a charter school handles applications that exceed capacity:

A charter school shall enroll an eligible pupil who submits a timely application, unless the number of applications exceeds the capacity of a program, class, grade level or building.

When applications exceed planned capacity, the statute creates a hierarchy of preferences (students from a converted public school, then students attending public schools in the LEA, then resident children not in public schools, then non-LEA children) and a lottery within each preference group.

Reading the statutes together

The opinion read the two provisions in pari materia. Section 49-13-110(a) makes the charter agreement binding. Section 49-13-113(b) addresses what happens at the demand side when applications exceed capacity, but it does not authorize a school to ignore a capacity term in its own charter agreement.

The Tennessee Supreme Court's guidance in Wells v. Tennessee Bd. of Regents and In re Akins requires reading related provisions of the same Act so they operate in harmony. Lazar v. J.W. Aluminum confirms that statutes must be read as written without expanding their scope. Applying those canons, the AG concluded the two sections do not conflict: § 49-13-110 binds the school to its charter terms, while § 49-13-113 regulates how applications are sorted when more students apply than the school can take.

The amendment route

Nothing in the opinion prevents a charter school from seeking to expand enrollment if the agreement caps it. Section 49-13-110(b) explicitly contemplates amendment by petition to the chartering authority. The AG simply held that the school cannot increase enrollment unilaterally on the strength of more square footage.

Common questions

Our charter school is moving to a building twice as large. Do we have to file an amendment?

If your existing charter agreement contains an enrollment cap, yes. The AG opinion ties enrollment authority to the charter agreement, not to the size of the facility. You would petition the chartering authority to amend the agreement under § 49-13-110(b). Confirm current procedures with the local board of education.

What if our charter agreement doesn't mention a cap at all?

The Act does not require the agreement to contain a maximum enrollment. The opinion's holding is specifically about agreements that do impose a cap. A school whose charter agreement contains no capacity restriction is not subject to one by the AG's reading of these statutes, though physical building, fire-code, and accreditation constraints may still apply.

Does § 49-13-113(b)'s lottery system mean we can enroll above our capacity if demand is high?

No. Section 49-13-113(b) governs how to select students when applications exceed capacity. It is a rationing rule for oversubscribed schools. It is not a permission slip to ignore capacity limits the charter school agreed to.

What does "capacity of a program, class, grade level or building" mean in § 49-13-113(b)?

The statute refers to the school's own planned capacities. The opinion treats the charter agreement as the place where any specific capacity limit lives. Whether a particular facility limit, class-size limit, or program limit is "in" the charter agreement is a question of what the parties wrote and approved.

Can the chartering authority refuse to amend our charter to increase enrollment?

The Act puts approval in the hands of the chartering authority and provides appeal rights under § 49-13-108. The chartering authority can decline an amendment for the reasons it could decline an original application, subject to the statute's procedures.

Does this opinion still describe how Tennessee charter schools operate?

The AG's analysis interpreted the 2012 version of the Public Charter Schools Act. The Act has been amended several times since. Verify the current text of the statute and any later AG opinions or court decisions before relying on this reading today.

Citations

• Tenn. Code Ann. §§ 49-13-101 to -137 (Public Charter Schools Act of 2002)
• Tenn. Code Ann. § 49-13-107 (application requirements)
• Tenn. Code Ann. § 49-13-107(b)(9) (description of anticipated enrollment)
• Tenn. Code Ann. § 49-13-108 (approval and appeal)
• Tenn. Code Ann. § 49-13-110 (charter agreement and amendments)
• Tenn. Code Ann. § 49-13-110(a) (binding effect)
• Tenn. Code Ann. § 49-13-110(b) (amendment procedure)
• Tenn. Code Ann. § 49-13-113(b) (enrollment preferences and lottery)
• Wells v. Tennessee Bd. of Regents, 231 S.W.3d 912 (Tenn. 2007)
• In re Akins, 87 S.W.3d 488 (Tenn. 2002)
• Lazar v. J.W. Aluminum, 346 S.W.3d 438 (Tenn. 2011)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-049.pdf

Original opinion text

Charter Schools Student Enrollment Capacity

QUESTION

If a charter school moves into a building with a greater capacity for students than its previous building or expands an existing building, and as a result wants to enroll additional students, is the charter school bound to any capacity limit that may be set forth in its charter agreement?

OPINION

If a charter agreement restricts school capacity, a charter school will be bound by the restriction until this provision of the charter agreement is appropriately amended.

ANALYSIS

Tennessee permits the establishment of charter schools under the Tennessee Public Charters School Act of 2002 ("the Act"), codified at Tenn. Code Ann. §§ 49-13-101 to -137. The question presented asks what limits, if any, exist on the student capacity of a charter school once its application to operate is approved by the local board of education pursuant to Tenn. Code Ann. § 49-13-108. The Act does not expressly set a limit on the number of students who may attend any particular charter school. While an application for a charter school must contain certain information, including "a description of the anticipated student enrollment" under Tenn. Code Ann. § 49-13-107(b)(9), the application is not required to establish a maximum or minimum student capacity. See Tenn. Code Ann. § 49-13-107 (identifying the items that must be included in an application seeking to form and operate a charter school). Nor must the charter agreement establish a maximum or minimum student capacity. See Tenn. Code Ann. § 49-13-110(a) (describing what is required for the charter agreement). Tenn. Code Ann. § 49-13-110 provides in pertinent part:

(a) The approval by the chartering authority of a public charter school application shall be in the form of a written agreement signed by the sponsor and the chartering authority, which shall be binding upon the governing body of the public charter school. The charter agreement for a public charter school shall be in writing and contain all components of the application.

(b) The governing body of the charter school may amend the original charter by making petition to the chartering authority. Timelines for approval and the appeal process in § 49-13-108 shall apply to all petitions to amend the original charter . . . .

If the charter agreement provides for a maximum or minimum student capacity for the charter school, then pursuant to Tenn. Code Ann. § 49-13-110 this provision would be binding on the charter school. The charter school would remain subject to this provision until the provision was removed or amended by the governing body of the charter school, which action must be approved by the chartering authority of the school pursuant to Tenn. Code Ann. § 49-13-110(b).

Section 49-13-113 of the Act does contemplate that there may exist some defined student capacity limitations on a charter school, presumably to be set forth in the school's charter agreement, stating in relevant part:

(b)(1) A charter school shall enroll an eligible pupil who submits a timely application, unless the number of applications exceeds the capacity of a program, class, grade level or building.

(2)(A) If applications exceed the planned capacity of the public charter school, the following preferences shall apply:

(i) Pupils in attendance in the previous school year at any public school that converts to become a public charter school;

(ii) Pupils attending public schools within the LEA [local education agency] in which the public charter school is located, if those pupils would otherwise be included in the area in which the public charter school will focus;

(iii) Children residing within the LEA service area in which the public charter school is located, but who are not enrolled in public schools, if those children would otherwise be included in the area in which the public charter school will focus; and

(iv) Children residing outside the LEA in which the public charter school is located and whose needs would be included in the area in which the public charter school will focus.

(B) If enrollment within a group of preference set out in subdivision (b)(2)(A) exceeds the planned capacity of the school, enrollment within that group shall be determined on the basis of a lottery. . . .

Tenn. Code Ann. § 49-13-113(b) (emphasis added).

The provisions of Tenn. Code Ann. § 49-13-113(b) must be read in pari materia with the other provisions of the Act to ascertain the entire Act's purpose and intent. See Wells v. Tennessee Bd. of Regents, 231 S.W.3d 912, 917 (Tenn. 2007), cert. denied, 552 U.S. 1101 (2008). Furthermore, the provisions of this Act which relate to the same subject matter must be interpreted "so that they operate in harmony, not in conflict with each other." In re Akins, 87 S.W.3d 488, 493 (Tenn. 2002). Finally these statutes must be read as written, without unduly restricting or expanding their intended scope. Lazar v. J.W. Aluminum, 346 S.W.3d 438, 442 (Tenn. 2011).

Applying these principles to the aforementioned provisions of the Act, Section 49-13-110(a) clearly states that a charter school is bound by the terms of its charter agreement. Thus, if that agreement contains a provision setting a minimum or maximum student capacity, the charter school must operate within the confines of that restriction. Tenn. Code Ann. § 49-13-113(b) does not dictate a different conclusion, since its primary purpose is to allocate preferences among student applications if enrollment exceeds the planned capacity of a program, class, grade level or building. Tenn. Code Ann. § 49-13-113(b) does not state that a charter school may avoid any restrictions existing in its charter agreement, and to read such language into this statute would not only unduly extend its intended scope but also would directly conflict with the requirement of Tenn. Code Ann. § 49-13-110(a) that a school must abide with the terms of its charter agreement.

Consequently, no conflict exists between Tenn. Code Ann. § 49-13-110 and Tenn. Code Ann. § 49-13-113 in regard to student enrollment. If a charter agreement restricts student capacity, a charter school will be bound by this restriction until this provision of the charter agreement is appropriately amended.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

MELISSA BRODHAG
Assistant Attorney General

Requested by:
The Honorable Gary Odom
State Representative
23 Legislative Plaza
Nashville, TN 37243-0167