Can a Tennessee Department of Health nurse teaching family-life class be personally sued under § 49-6-1306 if she mentions contraception?

Subject

Opinion No. 13-60, Civil Liability for Family Life Educators under Tenn. Code Ann. § 49-6-1306, July 26, 2013

Plain-English summary

In 2012, the Tennessee General Assembly enacted Tenn. Code Ann. §§ 49-6-1301 to -1307 (2012 Tenn. Pub. Acts, ch. 973), reshaping family life education in Tennessee public schools and creating a parental private right of action against instructors who promote "gateway sexual activity" or demonstrate sexual activity in violation of the curriculum rules.

"Gateway sexual activity" is defined at § 49-6-1301(7) as "sexual contact encouraging an individual to engage in a non-abstinent behavior." A person "promotes" gateway sexual activity by encouraging, advocating, urging, or condoning such activities. Section 49-6-1304(b) lists prohibited curriculum elements: promoting gateway sexual activity or messages encouraging noncoital experimentation, distributing materials condoning student sexual activity, demonstrating with sexual-stimulation devices, and distributing contraception on school property. Medically accurate information about contraception and condoms is allowed if presented consistent with the abstinence-only framework and clearly states only abstinence eliminates risk. § 49-6-1304(b)(4). Scientific study of the reproductive system in biology, physiology, anatomy, health, or physical education classes is preserved. § 49-6-1307.

LEAs (local education agencies) develop and adopt family life education curriculum, either from scratch or by adopting the Tennessee Board of Education's curriculum, and must comply with the prohibitions or risk withholding of state funds. § 49-6-1302(a)(4). LEAs may use the services of qualified healthcare professionals or social workers, including TDH or county health department employees, "to assist in teaching family life." § 49-6-1303(a). But the LEA may not use anyone or any organization that "endorses student nonabstinence as an appropriate or acceptable behavior" or "promotes gateway sexual activity." § 49-6-1303(b).

The private right of action: § 49-6-1306(b)(1) lets parents sue an "instructor or organization" who provides instruction that promotes gateway sexual activity or demonstrates sexual activity, for actual damages plus reasonable attorney's fees and court costs. The cause of action expressly does not apply to "teachers employed by the LEA"; the target is outside instructors and organizations.

TDH Commissioner Dreyzehner asked: What information may TDH or county health department employees discuss with students without incurring liability under § 49-6-1306?

The AG's answer.

• Substantively, they must comply with §§ 49-6-1301 to -1307: no promotion of gateway sexual activity, no demonstrations with stimulation devices, no distribution of contraception, no endorsement of student non-abstinence. They may share medically accurate information about contraception and condoms within the framework's constraints.
• Curriculum compliance is primarily the LEA's responsibility, not the visiting health professional's. Op. 92-17 (Feb. 26, 1992). The LEA invites and approves the speaker and curriculum.
• On liability: TDH and county health department employees enjoy substantial immunity. Tenn. Code Ann. § 9-8-307(h) makes state employees "absolutely immune from liability for acts or omissions within the scope of the . . . employee's office or employment, except for willful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain." Shelburne v. Frontier Health, 126 S.W.3d 838, 841-42 (Tenn. 2003); Johnson v. LeBonheur Children's Medical Center, 74 S.W.3d 338, 342-43 (Tenn. 2002). For county employees, the GTLA caps and immunities apply. Tenn. Code Ann. § 29-20-310(b), (c).

The § 49-6-1306 cause of action does not repeal these immunities. Repeals by implication are disfavored, Hayes v. Gibson County, 288 S.W.3d 334, 337-38 (Tenn. 2009); waivers of sovereign immunity are strictly construed in favor of the sovereign, Hughes v. Metro Gov't of Nashville and Davidson Cnty., 340 S.W.3d 352, 361 (Tenn. 2011). So a TDH or county health department employee acting within the scope of state/county employment is immune from § 49-6-1306 suits unless their conduct is willful, malicious, criminal, or for personal gain.

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.

Tennessee's family life instruction statutes have been amended since 2013, and the related state-employee and county-employee immunity provisions in Title 9 and Title 29 continue to evolve. Anyone advising a public health agency or LEA today should check the current statutes and any recent litigation construing § 49-6-1306.

Background and statutory framework

Curriculum framework. Tenn. Code Ann. §§ 49-6-1301 to -1307 (2012 Tenn. Pub. Acts, ch. 973). § 49-6-1302(a)(1)-(a)(2) (required family life program for high-pregnancy-rate counties and any LEA offering sex education). § 49-6-1304(b) (prohibited curriculum elements). § 49-6-1307 (preserving scientific instruction). § 49-6-1305(a)-(b) (parental notice and opt-out).

Use of outside professionals. § 49-6-1303(a) (LEA may use qualified healthcare professionals or social workers); § 49-6-1303(b) (LEA may not use individuals or organizations that endorse student nonabstinence or promote gateway sexual activity).

Cause of action. § 49-6-1306(b)(1) creates a private parental right of action against instructors and organizations (not LEA-employed teachers) who promote gateway sexual activity or demonstrate sexual activity.

Local control of curriculum. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988): "education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local officials, and not of federal judges." Epperson v. Arkansas, 393 U.S. 97, 104 (1968). Evans-Marshall v. Board of Educ. of Tipp City Exempted Village School Dist., 624 F.3d 332, 341 (6th Cir. 2010), quoting Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 371-72 (4th Cir. 1998) (en banc) (Wilkinson, C.J., concurring).

State employee immunity. Tenn. Code Ann. § 9-8-307(h): absolute immunity for state employees acting within the scope of office or employment, except for willful, malicious, criminal acts, or acts for personal gain. Shelburne v. Frontier Health, 126 S.W.3d 838, 841-42 (Tenn. 2003); Johnson v. LeBonheur Children's Medical Center, 74 S.W.3d 338, 342-43 (Tenn. 2002).

County employee immunity under GTLA. Tenn. Code Ann. § 29-20-201 (general immunity for governmental entities); § 29-20-205(i) (waiver for negligent acts within scope of employment, with discretionary-function exception). § 29-20-310(b) (county-employee immunity for state-law claims for which county is liable); § 29-20-310(c) (caps on county-employee judgments unless willful/malicious/criminal/personal-gain). Tenn. Att'y Gen. Op. 09-47 (Apr. 2, 2009).

Repeals by implication disfavored. Hayes v. Gibson County, 288 S.W.3d 334, 337-38 (Tenn. 2009); Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995); Hughes, 340 S.W.3d 352, 361.

Prior AG opinion on health-department instruction. Op. 92-17 (Feb. 26, 1992) held that the State Department of Health has no supervision or control over public school curriculum; when a health care provider is invited as a guest instructor, the LEA must ensure curriculum compliance. If the provider can't conform to the LEA's family life curriculum, he or she should not be used.

Common questions

I'm a county health nurse asked to speak at a school health class. What can I cover?

You can discuss any topic consistent with the LEA's adopted family life curriculum, which must conform to §§ 49-6-1301 to -1307. That generally means: abstinence emphasis, no promotion of gateway sexual activity, no demonstrations with sexual-stimulation devices, no distribution of contraception, no endorsement of student non-abstinence. You can share medically accurate information about contraception and condoms within the abstinence-focused framework, including that only abstinence eliminates risk.

Can I be personally sued under § 49-6-1306?

Generally no, if you're a TDH employee or county health employee acting within the scope of your official duties. § 9-8-307(h) gives state employees absolute immunity except for willful, malicious, criminal, or personal-gain conduct. The GTLA gives similar protection to county employees. The 2012 cause of action doesn't override these immunities by implication.

What if I willfully tell students "the abstinence stuff is nonsense" and promote sexual experimentation?

That falls outside scope of employment and looks "willful" or "malicious," stripping immunity. You could be individually liable to a parent under § 49-6-1306(b)(1). Your employer might also face consequences for using you.

As an LEA administrator, am I responsible for what a guest health speaker says?

Yes. Op. 92-17 and the statutory scheme place curriculum compliance responsibility on the LEA. You select the speaker, approve the topic, and oversee instruction. The § 49-6-1306 cause of action specifically excludes LEA-employed teachers, putting outside contractors and organizations at higher legal exposure, but the LEA's own duty to keep instruction within the statutory bounds is unaffected.

Are parents told before family life instruction happens?

Yes. § 49-6-1305(a) requires the LEA to notify parents and guardians at least 30 days before instruction begins, with curriculum review available. Parents may opt their student out using § 49-6-1305(b).

What if the county or the state doesn't have a high pregnancy rate?

§ 49-6-1302(a)(1) only mandates a family life program in counties exceeding certain pregnancy rates for females aged 15-17. § 49-6-1302(a)(2) extends the curriculum framework to any LEA offering sex education, regardless of pregnancy rate. So once any sex-ed program exists, the rules attach.

Citations

Tenn. Code Ann. §§ 49-6-1301 to -1307, including § 49-6-1301(7); § 49-6-1302(a), (a)(1), (a)(2), (a)(4); § 49-6-1303(a), (b); § 49-6-1304(b); § 49-6-1305(a), (b); § 49-6-1306, (b)(1); § 49-6-1307. § 9-8-307(h) (state employee immunity). § 29-20-201 (GTLA general immunity); § 29-20-205(i); § 29-20-310(b), (c). 2012 Tenn. Pub. Acts, ch. 973. Cases: Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988); Epperson v. Arkansas, 393 U.S. 97 (1968); Evans-Marshall v. Board of Educ. of Tipp City Exempted Village School Dist., 624 F.3d 332 (6th Cir. 2010); Boring v. Buncombe County Bd. of Educ., 136 F.3d 364 (4th Cir. 1998); Shelburne v. Frontier Health, 126 S.W.3d 838 (Tenn. 2003); Johnson v. LeBonheur Children's Medical Center, 74 S.W.3d 338 (Tenn. 2002); Hayes v. Gibson County, 288 S.W.3d 334 (Tenn. 2009); Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995); Hughes v. Metro Gov't of Nashville and Davidson Cnty., 340 S.W.3d 352 (Tenn. 2011); McMahon v. United States, 342 U.S. 25 (1951). Prior AG opinions: Op. 92-17 (Feb. 26, 1992); Op. 09-47 (Apr. 2, 2009).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-060.pdf

Original opinion text

July 26, 2013

Opinion No. 13-60

Civil Liability for Family Life Educators under Tenn. Code Ann. § 49-6-1306

QUESTION

What information may family life educators, who are employees of the Tennessee Department of Health ("TDH") or a county department of health, discuss with students without incurring liability under Tenn. Code Ann. § 49-6-1306?

OPINION

A family life educator teaching family life instruction in Tennessee's public schools may not endorse "student nonabstinence as an appropriate or acceptable behavior" or promote "gateway sexual activity," Tenn. Code Ann. § 49-6-1303(b), or provide any instruction on the topics listed in Tenn. Code Ann. § 49-6-1303(b). Family life educators who are employees of the TDH or a county health department generally would be immune from any cause of action commenced under Tenn. Code Ann. § 49-6-1306 unless the employee "willfully" or "maliciously" violated the parameters for family life instruction in Tennessee public schools established by Tenn. Code Ann. 49-6-1301 to -1307.

ANALYSIS

Effective July 1, 2012, the Tennessee General Assembly refined the criteria for family life instruction in Tennessee's public schools. See Tenn. Code Ann. §§ 49-6-1301 to -1307; 2012 Tenn. Pub. Acts, ch. 973. These statutes require a local education agency ("LEA") in a county that exceeds certain pregnancy rates in females aged fifteen to seventeen years of age to establish a family life education program with defined curriculum. Tenn. Code Ann. § 49-6-1302(a)(1). An LEA that offers a program, course or instruction in sex education must also "develop and adopt" a family life education program with defined curriculum. Tenn. Code Ann. § 49-6-1302(a)(2). The curriculum may be developed by the LEA in accordance with the guidelines outlined in Tenn. Code Ann. §§ 49-6-1301 to -1307 or the LEA may adopt the family life curriculum developed by the Tennessee Board of Education. Tenn. Code Ann. § 49-6-1302(a). An LEA failing to comply with these provisions "shall subject the LEA to the withholding of state funds." Tenn. Code Ann. § 49-6-1302(a)(4).

The statutory guidelines for family life instruction prohibit the following topics from being discussed or included in the family life instruction curriculum:

(b) Instruction of the family life curriculum shall not:

(1) Promote, implicitly or explicitly, any gateway sexual activity or health message that encourages students to experiment with noncoital sexual activity;

(2) Provide or distribute materials on school grounds that condone, encourage or promote student sexual activity among unmarried students;

(3) Display or conduct demonstrations with devices specifically manufactured for sexual stimulation; or

(4) Distribute contraception on school property; provided, however, medically-accurate information about contraception and condoms may be provided so long as it is presented in a manner consistent with the preceding provisions of this part and clearly informs students that while such methods may reduce the risk of acquiring sexually transmitted diseases or becoming pregnant, only abstinence removes all risk.

Tenn. Code Ann. § 49-6-1304(b). These provisions, however, do not preclude "the scientific study of the sexual reproductive system through coursework in biology, physiology, anatomy, health, or physical education." Tenn. Code Ann. § 49-6-1307.

Many of the terms used in these statutes are defined at Tenn. Code Ann. § 49-6-1301. "Gateway sexual activity," the promotion of which is prohibited by Tenn. Code Ann. § 49-6-1304(b)(1), is defined as

sexual contact encouraging an individual to engage in a non-abstinent behavior. A person promotes a gateway sexual activity by encouraging, advocating, urging or condoning gateway sexual activities.

Tenn. Code Ann. § 49-6-1301(7).

An LEA may utilize the services of a qualified healthcare professional or social worker, which could include TDH or county health department employees, "to assist in teaching family life." Tenn. Code Ann. § 49-6-1303(a). However, an LEA

shall not utilize the services of any individual or organization to assist in teaching family life if that individual or organization endorses student nonabstinence as an appropriate or acceptable behavior, or if that individual or organization promotes gateway sexual activity.

Tenn. Code Ann. § 49-6-1303(b).

Once a program for family life instruction is developed by an LEA, an LEA is required no less than thirty days prior to commencing instruction to notify parents or legal guardians of students who will attend the instruction that the LEA will be using a family life curriculum which may be reviewed by these parents or legal guardians. Tenn. Code Ann. § 49-6-1305(a). A parent or guardian may choose to excuse the student for which the parent or guardian is responsible from attending the family life instruction by following the process outlined in Tenn. Code Ann. § 49-6-1305(b).

Finally, these statutes create for parents of public school students a private right of action against any instructor or organization who provides family life education that either promotes gateway sexual activity or demonstrates sexual activity in contravention of Tenn. Code Ann. §§ 49-6-1301 to -1307, stating:

If a student receives instruction by an instructor or organization that promotes gateway sexual activity or demonstrates sexual activity, as prohibited under this part, then the parent or legal guardian shall have a cause of action against that instructor or organization for actual damages plus reasonable attorney's fees and court costs; provided, however, this subdivision (b)(1) shall not apply to instruction by teachers employed by the LEA.

Tenn. Code Ann. § 49-6-1306(b)(1).

Federal and state courts have recognized that, although constitutional limits do exist upon the power of a state to control curriculum taught in a classroom, generally courts accord great deference to the opinion and judgment of state and local school officials in their development and teaching of school curriculum. See Ronna Greff Schneider, Education Law, First Amendment, Due Process and Discrimination Litigation, § 2.8 Curriculum (Nov. 2012). See also Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1998); Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Evans-Marshall v. Board of Educ. of Tipp City Exempted Village School Dist., 624 F.3d 332, 341 (6th Cir. 2010), cert. denied, 131 S. Ct. 3068 (2011) (quoting Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 371-72 (4th Cir. 1998) (en banc) (Wilkinson, C.J., concurring)).

The opinion request under review raises two distinct questions of statutory construction: (1) what may be discussed in family life instruction by TDH and county department of health employees under the guidelines of Tenn. Code Ann. §§ 49-6-1301 to -1307 and (2) what liability, if any, may exist for these employees under Tenn. Code Ann. § 49-6-1306 if they transgress the guidelines set by these statutes.

The initial question was in essence answered in a prior opinion in which this Office opined that an LEA requesting the assistance of a TDH or county health department employee would be responsible for ensuring that the curriculum taught complied with State and local guidelines. Tenn. Att'y Gen. Op. 92-17 at 5-7 (Feb. 26, 1992). As this Office explained:

Your inquiry . . . asks whether the State Department of Health would have any influence over the manner or method of instruction used in the public school setting. As a general proposition, the Department of Health has no supervision or control over the curriculum in the public schools for the State of Tennessee. If a health care provider, outside the teachers and instructors normally employed by the school, is invited to give a lecture or to discuss a particular topic, it would appear that it would be up to the local school officials to see that the instruction complied with the curriculum and guidelines set forth by the local education agency. If the health care provider cannot conform his presentation to the requirements of the local family life curriculum, then he or she should not be used.

On the other hand, health care providers may present discussion regarding sex, pregnancy, and contraception that is not normally found in the public school setting. . . .

[A] public health provider, when invited to a school to speak about contraception or AIDS, may be prepared to use methods, demonstrations, or supplies that he or she would use or discuss in the health care setting. School board officials will have to determine whether such discussions regarding contraceptives, condoms, sex, or sexual activity are appropriate in their particular school setting. It should be noted that T.C.A. § 49–6–1302(a)(2) contemplates and allows local LEA's [sic] to adopt a plan which utilizes "the services of qualified health care professionals and social workers to assist in family life instruction. . . ."

Id. Thus, the responsibility for ensuring the curriculum taught complies with State and local requirements rests with the LEA and not the TDH or county health department employees asked to assist in teaching family life instruction.

Second, under Tennessee law, both TDH and county health department employees providing assistance as part of their State employment to an LEA under Tenn. Code Ann. § 49-6-1303(a) are immune from any action commenced under Tenn. Code Ann. § 49-6-1306 unless such employees willfully or maliciously act to violate Tenn. Code Ann. § 49-6-1306. State employees such as TDH employees "are absolutely immune from liability for acts or omissions within the scope of the . . . employee's office or employment, except for willful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain." Tenn. Code Ann. § 9-8-307(h). See Shelburne v. Frontier Health, 126 S.W.3d 838, 841-42 (Tenn. 2003); Johnson v. LeBonheur Children's Medical Center, 74 S.W.3d 338, 342-43 (2002). Likewise, under the Tennessee Governmental Tort Liability Act ("GTLA"), as a general rule in state law cases where the county is immune "no judgment may be entered against the employee in any amount in excess of the amounts established for governmental entities under the GTLA unless his acts were willful, malicious, criminal or performed for personal financial gain." Tenn. Att'y Gen. Op. 09-47 at 1 (Apr. 2, 2009) (citing Tenn. Code Ann. § 29-20-310(c)).

The cause of action created by Tenn. Code Ann. § 49-6-1306 does not explicitly or implicitly repeal the statutory immunity generally granted to State and county employees acting within the scope of their official employment. See Hayes v. Gibson County, 288 S.W.3d 334, 337-38 (Tenn. 2009) (quoting Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995)) (stating that "[r]epeals by implication . . . are disfavored in Tennessee," and therefore "will be recognized only when no fair and reasonable construction will permit the statutes to stand together.") See also Hughes v. Metro Gov't of Nashville and Davidson Cnty., 340 S.W.3d 352, 361 (Tenn. 2011) (quoting McMahon v. United States, 342 U.S. 25, 27 (1951)) (noting that "statutes which waive immunity of the [governmental entity] from suit are to be construed strictly in favor of the sovereign").

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ADAM FUTRELL
Assistant Attorney General

Requested by:

The Honorable John J. Dreyzehner
Commissioner, Department of Health
3rd Floor Cordell Hull Building
Nashville, Tennessee 37243