Can Tennessee require home-schooled students to attend a Tennessee home school for two years before graduation to qualify for the HOPE scholarship?

Subject

Opinion No. 13-53, Eligibility of Home School Students for Hope Scholarship, July 10, 2013

Plain-English summary

The Tennessee HOPE scholarship (the lottery-funded merit aid program) has residency and graduation-source eligibility rules in Tenn. Code Ann. § 49-4-905(a)(1) and (b)(2). For home-schooled applicants, the definition in § 49-4-902(23) specifically requires that "[f]or two (2) years immediately preceding completion of high school as a home school student, the student shall have been a student in a home school associated with a church-related school as defined by § 49-50-801 and registered with the Tennessee local school district" or "an independent home school student whose parent or guardian has given notice to the local director of a Tennessee school district under § 49-6-3050(b)(1)." In effect: two years of Tennessee-recognized home schooling before graduation.

Rep. Jeremy Durham asked whether that requirement violates equal protection (federal Fourteenth Amendment or Tennessee art. I, § 8 and art. XI, § 8) by treating home schoolers differently from publicly schooled students.

The AG concluded no. The reasoning has two layers.

Are home-school students even "similarly situated" to public school students for equal-protection purposes? Probably not. Tennessee home schools are regulated under § 49-6-3050 with different administration, oversight, and accreditation structures from public and private schools. Without similarly-situated classes, the equal protection clause "has no application." Posey v. City of Memphis, 164 S.W.3d 575, 579 (Tenn. Ct. App. 2004); Osborn v. Marr, 127 S.W.3d 737, 741 (Tenn. 2004). Rust v. Rust, 864 S.W.2d 52 (Tenn. Ct. App. 1993), treats home schooling as a distinct educational alternative under state law.

Even if they were similarly situated, the classification passes rational basis. No fundamental right or suspect class is implicated. Under rational basis, the classification stands if any conceivable state of facts could justify it. Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003); Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978). Tennessee's home school oversight regime, including registration with the local district and ties to a church-related school under § 49-50-801, gives the State some assurance about preparation quality that it doesn't have for out-of-state home schools. The General Assembly could rationally conclude that Tennessee-supervised home schools more reliably produce HOPE-qualified students. The AG noted that the same reasoning supports other HOPE eligibility classifications previously addressed (Op. 03-065; Op. 03-030), and distinguished Op. 08-36, which had flagged a different eligibility provision tied to military service as constitutionally suspect because it implicated the fundamental right to travel.

Currency note

This opinion was issued in 2013. 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.

The HOPE program has been amended several times since 2013, including changes to award amounts, retention requirements, and home-school-specific procedural rules. Anyone advising on current HOPE eligibility should pull the current § 49-4-902 and § 49-4-905 versions and the underlying home-school registration framework, not rely on the 2013 language quoted here.

Background and statutory framework

HOPE basic eligibility. Tenn. Code Ann. § 49-4-905(a)(1) requires Tennessee residency for one year immediately preceding the date of application. § 49-4-905(b)(2) requires graduation from an "eligible high school," graduation from a Tennessee high school that is not an eligible high school, completion of high school in a Tennessee home school program, or a GED after January 1, 2003.

Home-school eligibility definition. Tenn. Code Ann. § 49-4-902(23) defines an eligible home-school HOPE applicant:

a student who completed high school in a Tennessee home school program meeting the requirements of § 49-6-3050. For two (2) years immediately preceding completion of high school as a home school student, the student shall have been a student in a home school associated with a church-related school as defined by § 49-50-801 and registered with the Tennessee local school district that the student would otherwise attend as required by § 49-6-305(a)(2)(C)(i) or an independent home school student whose parent or guardian has given notice to the local director of a Tennessee school district under § 49-6-3050(b)(1) of intent to conduct a home school.

Equal protection framework. Tennessee's art. I, § 8 and art. XI, § 8 confer the same protections as the federal Fourteenth Amendment. Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407, 412 (Tenn. 1995). Unless a fundamental right or suspect class is implicated, classifications are reviewed under rational basis, which provides considerable latitude to the legislature. Gallaher v. Elam, 104 S.W.3d at 461; Harrison v. Schrader, 569 S.W.2d at 825. A classification is valid if any state of facts can be reasonably conceived to justify it. The challenger bears the burden of showing the classification is unreasonable and arbitrary.

Similarly-situated threshold. Equal protection only applies when classes are similarly situated. Posey v. City of Memphis, 164 S.W.3d 575, 579 (Tenn. Ct. App. 2004) (citing Osborn v. Marr, 127 S.W.3d 737, 741 (Tenn. 2004)).

Home schooling as a distinct regime. Crites v. Smith, 826 S.W.2d 459, 468-72 (Tenn. Ct. App. 1991) (Koch, J., concurring in part and dissenting in part) (discussing the development of Tennessee's home school statute). Rust v. Rust, 864 S.W.2d 52, 56-57 (Tenn. Ct. App. 1993) (home schooling is a permissible educational alternative under § 49-6-3050).

Prior HOPE opinions. Op. 03-065 (May 20, 2003): different eligibility criteria for different student classes are defensible if the legislature has a reasonable basis. Op. 03-030 (Mar. 25, 2003): immediate-post-graduation enrollment requirement and age-cutoff requirement don't violate equal protection. Op. 08-36 (Feb. 26, 2008): provision tying out-of-state high school eligibility to military-parent status was constitutionally suspect because it burdened the right to travel.

Op. 13-37 cross-reference. Op. 13-37 (May 2, 2013), quoted at length, sets out the standard equal protection framework the AG applies to HOPE eligibility questions.

Common questions

My family moved to Tennessee in my child's senior year and home schooled here. Does she qualify for HOPE?

Based on the 2013 statute, no. § 49-4-902(23) required two years of Tennessee-registered home schooling immediately before graduation. A senior-year move would fall short. The current statute may have changed; verify the current version before advising.

Is being denied HOPE eligibility a violation of the right to home school?

No. The right (as Tennessee courts have framed it under Rust v. Rust) is to home school as an exception to compulsory attendance laws. HOPE is a discretionary scholarship benefit, not a core education right. Tennessee can attach conditions to HOPE.

What if we are home schooled but not registered or affiliated with a Tennessee church-related school?

§ 49-4-902(23) requires either (a) registration with the local school district and association with a church-related school under § 49-50-801, or (b) the independent home school notice under § 49-6-3050(b)(1). Failure to satisfy one of those two routes means the student doesn't fit the HOPE home-school definition.

What if we moved here from a strict home school state? Doesn't that satisfy the legislature's quality concerns?

The AG concluded the General Assembly's preference for Tennessee-supervised home schools is rational regardless of other states' rigor. The state has direct verification leverage over its own home school registration; it doesn't over an out-of-state home school. Rational basis doesn't require a perfect classification, just one that is reasonably related to a legitimate state interest.

Could a court strike down this rule someday?

Unlikely under the 2013 reasoning. Rational basis is highly deferential. To overcome the presumption of validity, a challenger would need to show that no conceivable state of facts could justify the classification, which is a tall order when the legislature can articulate a quality-control or verification rationale.

Does the AG's analysis carry over to scholarships for private school students transferring in from out of state?

Op. 03-065 and Op. 03-030 reached similar conclusions for related HOPE classifications. The opinion's pattern (rational basis review, deference, conceivable justification) applies to most HOPE eligibility distinctions other than those that implicate fundamental rights like the right to travel (see Op. 08-36's flag of a different provision).

Citations

Tenn. Code Ann. § 49-4-905(a)(1) (one-year residency); § 49-4-905(b)(2) (graduation-source); § 49-4-902(23) (home-school HOPE definition); § 49-6-3050 (home school requirements), including (b)(1); § 49-6-305(a)(2)(C)(i); § 49-50-801 (church-related school definition). U.S. Const. amend. XIV. Tenn. Const. art. I, § 8; art. XI, § 8. Cases: Crites v. Smith, 826 S.W.2d 459 (Tenn. Ct. App. 1991); Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407 (Tenn. 1995); Harwell v. Leech, 672 S.W.2d 761 (Tenn. 1984); Maney v. State, 74 Tenn. 218 (1880); Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003); State v. Tester, 879 S.W.2d 823 (Tenn. 1994); Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978); Doe v. Norris, 751 S.W.2d 834 (Tenn. 1988); Posey v. City of Memphis, 164 S.W.3d 575 (Tenn. Ct. App. 2004); Osborn v. Marr, 127 S.W.3d 737 (Tenn. 2004); Rust v. Rust, 864 S.W.2d 52 (Tenn. Ct. App. 1993). Prior AG opinions: Op. 13-37 (May 2, 2013); Op. 03-065 (May 20, 2003); Op. 03-030 (Mar. 25, 2003); Op. 08-36 (Feb. 26, 2008).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-053.pdf

Original opinion text

July 10, 2013

Opinion No. 13-53

Eligibility of Home School Students for Hope Scholarship

QUESTION

Does the requirement that home school students be enrolled in a Tennessee home school program for two years prior to graduation in order to be eligible for the HOPE scholarship violate the United States or Tennessee Constitutions?

OPINION

No, this requirement likely would be upheld against any constitutional challenge.

ANALYSIS

In order to be eligible to receive a Tennessee HOPE scholarship, a student must have been a Tennessee resident "for one (1) year immediately preceding the date of application for a scholarship" and "graduated from an eligible high school, graduated from a high school located in Tennessee that is not an eligible high school, completed high school in a Tennessee home school program or obtained a GED after January 1, 2003." Tenn. Code Ann. § 49-4-905(a)(1) and (b)(2) (emphasis added). A home school student eligible for a Tennessee HOPE scholarship is

a student who completed high school in a Tennessee home school program meeting the requirements of § 49-6-3050. For two (2) years immediately preceding completion of high school as a home school student, the student shall have been a student in a home school associated with a church-related school as defined by § 49-50-801 and registered with the Tennessee local school district that the student would otherwise attend as required by § 49-6-305(a)(2)(C)(i) or an independent home school student whose parent or guardian has given notice to the local director of a Tennessee school district under § 49-6-3050(b)(1) of intent to conduct a home school.

Tenn. Code Ann. § 49-4-902(23). See generally Crites v. Smith, 826 S.W.2d 459, 468-472 (Tenn. Ct. App. 1991) (Koch, J., concurring in part and dissenting in part) (discussing the development of Tennessee's home school statute).

The criteria established by the General Assembly for home school students to obtain eligibility for a Tennessee Hope Scholarship do not transgress federal or State constitutional requirements. This Office recently explained the parameters of these equal protection guarantees as follows:

Article I, Section 8, and Article XI, Section 8, of the Tennessee Constitution as well as the Fourteenth Amendment to the United States Constitution "guarantee to citizens the equal protection of the laws." Brown v. Campbell County Bd. Of Educ., 915 S.W. 2d 407, 412 (Tenn. 1995). . . .

These federal and State constitutional provisions confer the same protections, and they apply the same rules in determining the validity of classifications made in legislative enactments. Brown v. Campbell County Bd. of Educ., 915 S.W.2d at 412. The "law of the land" referred to in Article I, Section 8, and "any general law" within the meaning of the prohibition in Article XI, Section 8, on legislation "inconsistent with the general laws of the land" mean the same thing, namely, that a law must embrace and affect alike all persons who are in, or may come into, the same or similar situation, condition, and circumstances. Harwell v. Leech, 672 S.W.2d 761, 762-63 (Tenn. 1984); Maney v. State, 74 Tenn. 218 (1880).

While these equal protections guarantees require that persons similarly situated be treated alike, not all classifications made by the General Assembly are necessarily prohibited. See Gallaher v. Elam, 104 S.W.3d 455, 461 (Tenn. 2003); State v. Tester, 879 S.W.2d 823, 327-28 (Tenn. 1994). Unless the classification impacts a fundamental right or discriminates as to a suspect class, a classification is valid if it can be supported by any rational basis. Gallaher v. Elam, 104 S.W. 3d at 461-62; Harrison v. Schrader, 569 S.W.2d 822, 825 (Tenn. 1978). The rational basis test provides the General Assembly "the initial discretion to determine what is 'different' and what is 'the same'" and allows the General Assembly "considerable latitude in making those determinations." Gallaher v. Elam, 104 S.W.3d at 461. A classification will be upheld under the rational basis test "if any state of facts may reasonably be conceived to justify it." Id. The question is "whether the classifications have a reasonable relationship to a legitimate state interest." Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988). If so, there is a presumption of validity. The legislative body may make distinctions and treat various groups differently so long as the classification is not arbitrary. Reasonableness depends upon the facts of the case, and no general rule can be formulated for its determination. The burden of showing that a classification is unreasonable and arbitrary is placed upon the individual challenging the statute. If any state of facts can reasonably be conceived to justify the classification or if the reasonableness of the class is fairly debatable, the statute must be upheld. See Gallaher v. Elam, 104 S.W.3d at 461; Harrison v. Schrader, 569 S.W.2d at 825-26.

Tenn. Att'y Gen. Op. 13-37 at 2-3 (May 2, 2013).

Initially, for equal protection to apply where home school students are arguably treated differently than students attending other type schools, home school students must be "similarly situated" to students attending other type schools. See, e.g., Posey v. City of Memphis, 164 S.W.3d 575, 579 (Tenn. Ct. App. 2004) (citing Osborn v. Marr, 127 S.W.3d 737, 741 (Tenn. 2004)) (recognizing that "if two classes are being treated differently, the equal protection clause has no application unless the classes are similarly situated within the meaning of the equal protection clause"). Under the law of Tennessee, home schools are separately regulated and administered from other public and private elementary and secondary educational institutions. See Tenn. Code Ann. § 49-6-3050 (establishing criteria for home schools operating in Tennessee). Thus, given the differences in administration of home schools and other types of public and private secondary and elementary institutions, it is unlikely that home school students would be considered "similarly situated" to students attending other type institutions. Cf. Rust v. Rust, 864 S.W.2d 52, 56-7 (Tenn. Ct. App. 1993) (stating that "[h]ome schooling is a permissible educational alternative in Tennessee" which allows "parents to educate their children at home and provides that home schooling is an exception to the mandatory school attendance laws as long as the educational program meets the requirements of state law").

Nonetheless, even if all students are deemed to be "similarly situated," the HOPE scholarship eligibility requirements for home school students should still withstand equal protection challenge. This classification does not impact any fundamental right or suspect class; thus it would be reviewed under the rational basis test. Because home schooling is by its nature subject to less governmental and accreditation supervision than public or private schooling, the General Assembly could reasonably have concluded that home schools in Tennessee, which must comply with the state's accreditation criteria, will more reliably prepare students qualified for HOPE scholarships than home schools in other states. Cf. Crites v. Smith, 826 S.W.2d at 469 (Koch, J., concurring in part and dissenting in part) (observing that early in the legislative debate on the creation of home school criteria the General Assembly proposed to adopt minimum education requirements that were apparently stricter than other states' laws governing home schools). Additional rational bases might also exist to support this classification. The conclusion that a rational basis exists to support this classification is consistent with several instances where this Office has opined that similar classifications created for HOPE scholarship eligibility would withstand an equal protection challenge. See Tenn. Att'y Gen. Op. 03-065 (May 20, 2003) (stating that if the General Assembly has a reasonable basis for requiring some students to meet one set of lottery scholarship eligibility criteria and other students a second set of eligibility criteria, then a court could sustain such a classification against an equal protection challenge); Tenn. Att'y Gen. Op. 03-030 (Mar. 25, 2003) (opining equal protection guarantees are not implicated if the State awards lottery scholarships only to students who attend college immediately after graduation from high school or the State denies lottery scholarships to college students who are under the age of 40 and who graduated high school several years before their enrollment in college). But cf. Tenn. Att'y Gen. Op. 08-36 (Feb. 26, 2008) (opining that HOPE scholarship eligibility for a student who attended high school in another state was only met if one of the student's parents was a member of the military and entered into the military while a resident of Tennessee was constitutionally suspect, since this criteria triggered intensified scrutiny under equal protection standards by inappropriately burdening the fundamental right to travel under the United States Constitution or, in the alternative, was not supported by a rational basis).

In sum, the eligibility standards set by the General Assembly for home school students to qualify for a HOPE scholarship are defensible against an equal protection challenge. This Office is aware of no other constitutional infirmities with these eligibility standards.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JAY C. BALLARD
Senior Counsel

Requested by:

The Honorable Jeremy Durham
State Representative
202 War Memorial Building
Nashville, TN 37243-0231