How much authority does Tennessee's appointed State Board of Education have over locally elected school boards?

Subject

Opinion No. 18-34, Authority of the State Board of Education and Local Boards of Education, July 30, 2018

Plain-English summary

Representative Antonio Parkinson asked a question that comes up whenever a local school board and state regulators disagree: how much can the State Board of Education tell elected local boards what to do, given that the state board members are gubernatorial appointees and the local board members were elected by their communities?

The AG's answer was that the constitutional and statutory architecture squarely places the state board on top. Article XI, § 12 of the Tennessee Constitution gives the General Assembly the authority and duty to provide for "a system of free public schools," and the General Assembly has built that system as a two-tiered structure. The State Board of Education (nine members, all appointed by the governor and confirmed by the legislature) sets the policies, standards, and guidelines that govern Tennessee's secondary public education. Local school boards (locally elected) handle day-to-day administration, but only within the rules the state board lays down.

The opinion is direct on the consequence: local boards "are wholly the creation of the state legislature, and, accordingly, they have no inherent or common law authority of their own." They have only the authority the General Assembly has given them, and they must exercise it consistently with state statutes and with the state board's policies, guidelines, and standards. § 49-3-353(b) backs that up by requiring "[e]very local public school system" to "meet the requirements of state law as to the operation of the system and of the rules, regulations, and minimum standards of the state board for the operation of schools."

The election-versus-appointment friction does not change the answer. The legislature was free to choose how each tier was filled, and the structure it chose makes the appointed state board the rule-maker and the elected local boards the implementers.

Currency note

This opinion was issued in 2018. 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.

Background and statutory framework

Public education in Tennessee starts with art. XI, § 12 of the state constitution: "The General Assembly shall provide for the maintenance, support, and eligibility standards of a system of free public schools." That clause is the source of legislative authority over school governance.

Acting on that mandate, the General Assembly created the State Board of Education in Tenn. Code Ann. § 49-1-301. All nine members are appointed by the governor and confirmed by the Senate and House. The board's powers and duties live in § 49-1-302, which gives it broad authority to set guidelines and policies for public schools and to establish accreditation and licensing standards for teachers, educators, and administrators.

§ 49-1-102(a) is the keystone for the policy-setting role: Tennessee's secondary public education system is to be governed by the laws the legislature enacts and by the "policies, standards, and guidelines adopted by the state board of education." § 49-1-102(b) places day-to-day administration with the state commissioner of education, who is "responsib[le] for the administration, implementation, supervision and enforcement of the policies, standards and guidelines of the state board of education."

The local-board side of the structure runs through § 49-1-102(c) (each county or combination of counties operates a local public school system, and a municipality or special school district may also operate one), § 49-2-201(a)(1) (members of each local board elected by the people of the county, municipality, or district), and § 49-2-203 (powers and duties of local boards). § 49-2-203(a) gives local boards the duty to "manage and control all public schools established under [their] jurisdiction," which includes hiring teachers, setting salaries, disciplining students, and adopting attendance standards. § 49-2-203(b) adds discretionary powers like school consolidation, health and safety measures, minimum attendance requirements, and leasing or selling buildings.

The constraint comes from § 49-3-353(b), which requires every local public school system to comply with state law and with the state board's rules, regulations, and minimum standards. Earlier AG opinions, including Tenn. Att'y Gen. Op. 17-39 (Sept. 13, 2017) and Tenn. Att'y Gen. Op. 17-40 (Sept. 20, 2017), reach the same conclusion: local boards are creatures of the legislature and have only the authority granted to them, exercised within the policy framework set by the state board.

Common questions

Who actually sets the rules for public schools in Tennessee?

The State Board of Education sets the policies, standards, guidelines, and minimum standards that govern public education statewide. The state commissioner of education is responsible for implementing and enforcing those policies. Local school boards operate within that framework.

If local school boards are elected and the state board is appointed, doesn't that give local boards more democratic legitimacy?

The opinion did not treat that as a legal trump card. The Tennessee Constitution gives the General Assembly the authority to "provide for" the public school system. The General Assembly chose to make the state board appointed and the local boards elected. That structural choice is itself the answer to the democratic-legitimacy question: the legislature, which is itself elected, designed it that way.

What kinds of decisions can local school boards make on their own?

The opinion identified several. Mandatory duties under § 49-2-203(a) include hiring teachers, setting their salaries, disciplining students, and adopting student attendance standards. Discretionary authority under § 49-2-203(b) includes consolidating schools, taking health and safety measures, establishing minimum attendance requirements, and leasing or selling buildings. All of those decisions, however, must be made in accordance with state law and state board policies.

What if a local school board disagrees with a state board policy?

The opinion did not address remedies, but the underlying rule is clear: local boards must conform their actions to state law and state board policies. § 49-3-353(b) requires every local public school system to "meet the requirements of state law as to the operation of the system and of the rules, regulations, and minimum standards of the state board for the operation of schools." A local board that wants to change a state policy would generally need to seek that change through the state board's rulemaking process or through the General Assembly.

Do local boards have any inherent authority?

No. The opinion was emphatic that local boards "are wholly the creation of the state legislature, and, accordingly, they have no inherent or common law authority of their own." They may exercise only the authority the legislature has given them, and only in accordance with state law and state board policy.

Does this opinion control state-board-versus-local-board disputes?

No. Like all Tennessee AG opinions, it is persuasive authority. A court interpreting these statutes in a contested case is free to reach a different conclusion. But because the opinion tracks the plain language of the statutes and the constitutional grant in art. XI, § 12, departures would be unusual.

Citations

Constitutional provisions

• Tenn. Const. art. XI, § 12 (General Assembly's duty to maintain a system of free public schools)

Statutes

• Tenn. Code Ann. § 49-1-101 (general provisions of education code)
• Tenn. Code Ann. § 49-1-102 (governance of secondary public education; commissioner duties)
• Tenn. Code Ann. § 49-1-301 (state Board of Education membership and appointment)
• Tenn. Code Ann. § 49-1-302 (powers and duties of state Board of Education)
• Tenn. Code Ann. § 49-2-201 (election of local board members)
• Tenn. Code Ann. § 49-2-203 (powers and duties of local boards)
• Tenn. Code Ann. § 49-3-353 (local school systems must meet state law and state board standards)

Prior AG opinions

• Tenn. Att'y Gen. Op. 17-39 (Sept. 13, 2017)
• Tenn. Att'y Gen. Op. 17-40 (Sept. 20, 2017)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-34.pdf

Original opinion text

Authority of the State Board of Education and Local Boards of Education

Question

What authority does the state Board of Education, whose members are appointed, have to supervise and control local boards of education, whose members are elected by the people?

Opinion

The General Assembly has authorized the state Board of Education to establish policies, guidelines, and minimum standards that govern Tennessee's system of public education, and the General Assembly has required local boards of education to comply with the state Board's policies, guidelines, and standards in managing the public school systems in their respective jurisdictions.

ANALYSIS

Recognizing the "inherent value of education," the Tennessee Constitution gives the legislature the authority and the duty to provide for a system of public education in the State: "The General Assembly shall provide for the maintenance, support, and eligibility standards of a system of free public schools." Tenn. Const. art. XI, § 12.

Pursuant to this constitutional mandate, the legislature has established a system of public education, see Tenn. Code Ann. § 49-1-101, and has created a state Board of Education, see id. § 49-1-301. The legislature has given the state Board a broad range of powers and duties, including the authority to set various guidelines and policies for public schools and to establish accreditation and licensing standards for teachers and other educators and administrators. Id. § 49-1-302 (listing the powers of the Board). The legislature, too, has determined that the members of the state Board of Education are to be appointed rather than elected. By statute, all nine members of the state Board of Education are appointed by the governor and confirmed by the people's elected representatives, i.e., the Senate and House of Representatives. Id. § 49-1-301(a).

The legislature has further directed that Tennessee's system of secondary public education is to be governed by the laws it enacts and by the "policies, standards, and guidelines adopted by the state board of education." Tenn. Code Ann. § 49-1-102(a). Those "policies, standards and guidelines shall be formulated by the state board of education, with such assistance from the commissioner of education as the state board may request." Id.

In short, the legislature has created a state Board of Education composed of appointed individuals and has vested in that Board the ultimate authority to set the "policies, standards, and guidelines" that govern the public school system in the State. The legislature has vested in the state commissioner of education responsibility "for the administration, implementation, supervision and enforcement of the policies, standards and guidelines of the state board of education." Tenn. Code Ann. § 49-1-102(b).

As part of its constitutional authority and duty to provide for public education, the legislature has also created local boards of education and has mandated that the members of the local boards of education be locally elected. By statute, each county (or combination of counties) shall operate "a local public school system," and a municipality or special school district may also operate "a local public school system." Tenn. Code Ann. § 49-1-102(c). Such local public school systems are to be administered by a local board of education. Id. The members of each local board are elected by the people of that county, municipality, or district. Id. § 49-2-201(a)(1).

These local boards of education are wholly the creation of the state legislature, and, accordingly, they have no inherent or common law authority of their own. See Tenn. Att'y Gen. Op. 17-40 (Sept. 20, 2017). They may exercise only the authority given to them by the state legislature and must do so in accordance with state law, including the laws that subject local school systems and local boards of education to the authority of the state Board of Education.

The legislature has given the local boards of education the "duty" to "manage and control all public schools established under [their] jurisdiction." Id. § 49-2-203(a)(2). This includes, among other things, the duty to hire teachers, set salaries, discipline students, and adopt standards for student attendance. Id. § 49-2-203(a). And local boards of education are given some discretionary authority, including the authority to consolidate schools, take health and safety measures, establish minimum attendance requirements, and lease or sell buildings. Id. § 49-2-203(b).

But at the same time, the legislature has clearly circumscribed the authority of the local boards of education. In performing their duties and exercising their authorities, local boards of education are required by the legislature to conform to state law and to the policies, guidelines, and standards established by the state Board of Education. See id. § 49-1-102(a); see also id. § 49-3-353(b) ("Every local public school system shall meet the requirements of state law as to the operation of the system and of the rules, regulations, and minimum standards of the state board for the operation of schools."); Tenn. Att'y Gen. Op. 17-39 (Sept. 13, 2017).

In sum, the legislature has created a two-tiered governance structure for the public school systems in Tennessee. The state Board of Education, members of which are appointed by the governor and confirmed by the legislature, sets guidelines, policies, and minimum standards to which every local school system and local board of education must adhere. Local boards of education, members of which are elected by the people, are responsible for the day-to-day administration of their respective school systems and may exercise any authority given to them by the state legislature as long as they do so in accordance with state law and with the policies, guidelines, and standards of the state Board of Education.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Antonio Parkinson
State Representative, District 98
425 5th Avenue North
Cordell Hull Bldg., Suite 422
Nashville, TN 37243