IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, et al., Plaintiffs-Appellees, v. TENNESSEE DEPARTMENT OF EDUCATION, et al., Defendants-Appellants, NATU BAH, et al., Intervenor Defendants. ON APPLICATION FOR PERMISSION TO APPEAL UNDER TENN. R. APP. P. 9 FROM THE ORDER OF THE DAVIDSON COUNTY CHANCERY COURT __________________________________________________________________ HERBERT H. SLATERY III Attorney General and Reporter ANDRÉE SOPHIA BLUMSTEIN Solicitor General STEPHANIE A. BERGMEYER JIM NEWSOM E. ASHLEY CARTER Assistant Attorneys General Office of the Tennessee Attorney General P.O. Box 20207 Nashville, Tennessee 37202 (615) 741-6828 Document received by the TN Court of Appeals. DEFENDANTS’ APPLICATION FOR PERMISSION TO APPEAL __________________________________________________________________ TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................... 3 QUESTIONS PRESENTED FOR REVIEW ............................................. 5 STATEMENT OF RELEVANT FACTS ................................................... 6 REASONS SUPPORTING INTERLOCUTORY APPEAL ...................... 9 I. Review is Needed to Prevent Irreparable Injury. ……………………9 II. Review is Needed on an Issue of High Public Importance. .......... 11 CONCLUSION AND RELIEF SOUGHT ............................................... 12 2 Document received by the TN Court of Appeals. CERTIFICATE OF SERVICE ................................................................ 12 TABLE OF AUTHORITIES CASES City of Humboldt v. McKnight, No. M2002-02639-COA-R3CV, 2005 WL 2051284, at *13-14 (Tenn. Ct. App. Aug. 25, 2005) ..….10 City of Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193 (Tenn. 1984) ……………………………………………………………..11 Maryland v. King, 567 U.S. 1301, 133 S. Ct. 1, 2 (2012) …………………9 New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) ……..…….…….………………………...10 S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ., S.W.3d 706, 715 (Tenn. 2001) …………..……………………………..10 State ex rel. Cheek v. Rollings, 202 Tenn. 608 (1957) ………………..….11 Tenn. Small Schools v. McWherter, 851 S.W.2d 139, 156 STATUTES Tenn. Code Ann. § 49-1-103(2) ………………………………………………. 6 Tenn. Code Ann. § 49-1-602 …………………………………………………. 5 Tenn. Code Ann. § 49-1-602(b)(3) …………………………………………….5 Tenn. Code Ann. § 49-2-203 ……………………………………………..……6 Tenn. Code Ann. §§ 49-6-2601 to -2612 ……………………………..………4 Tenn. Code Ann. § 49-6-2602(3)(C) ………………………………................5 Tenn. Code Ann. § 49-6-2602(9) …………………………………..………….6 Tenn. Code Ann. §§ 49-6-2603(a)(1)-(3) …………………………………..…6 Tenn. Code Ann. § 49-6-2603(a)(4) …………………………………………..6 Tenn. Code Ann. § 49-6-2611(a)(1) …………………………………….…5,10 3 Document received by the TN Court of Appeals. (Tenn. 1993) ………….………………………………………………….10 OTHER AUTHORITIES Tenn. R. App. P. 7(a) ……………………………………………..…………….7 Tenn. R. App. P. 9 …………………………………………………………...4, 7 Tenn. R. App. P. 9(a) …………………………………………………………...8 Tenn. R. Civ. P. 12.02(6) ……………………………………………………….6 4 Document received by the TN Court of Appeals. Tenn. Const. art. XI, § 12 ……………………………………………………...9 QUESTIONS PRESENTED FOR REVIEW Plaintiffs, two county governments and a local board of education, have sued Defendants alleging that the Tennessee Education Savings Account Pilot Program (“ESA Program”), codified at Tenn. Code Ann. §§ 49-6-2601 to -2612, is unconstitutional. Based on how the ESA Program defines an eligible student to be zoned within certain Local Education Agencies (“LEAs”), Plaintiffs assert that the Program applies to specific counties without local approval in violation of article XI, section 9, of the Tennessee Constitution (the “Home Rule Amendment”). The Davidson County Chancery Court accepted this argument, declaring the ESA Program unconstitutional and enjoining its implementation and enforcement.1At the same time, the chancery court sua sponte granted permission to appeal under Tenn. R. App. 9, because “this matter is appropriate for interlocutory and expedited appellate Defendants present two questions for this Court’s immediate, interlocutory review: I. Whether the chancery court erred in ruling that the countygovernment Plaintiffs have standing to challenge the constitutionality of the ESA Program under the Home Rule Amendment. II. Whether the chancery court erred in ruling that the ESA Program violates the Home Rule Amendment. 1 See Appendix, Exhibit 1, Mem. and Order. 5 Document received by the TN Court of Appeals. consideration.” (Exhibit 1, Mem. and Order 30.) STATEMENT OF THE RELEVANT FACTS The General Assembly enacted the ESA Program to improve educational opportunities for children in the State who are zoned to attend schools in LEAs that have “consistently had the lowest performing schools on a historical basis.” Tenn. Code Ann. § 49-6-2611(a)(1). The ESA Program defines an “eligible student” as a Tennessee resident who, among other things: (i) Is zoned to attend a school in an LEA, excluding the achievement school district (ASD), with ten (10) or more schools: (a) Identified as priority schools in 2015, as defined by the state’s accountability system pursuant to § 49-1-602; (c) Identified as priority schools in 2018, as defined by the state’s accountability system pursuant to § 49-1-602; or (ii) Is zoned to attend a school that is in the ASD on May 24, 2019. Id. § 49-6-2602(3)(C). A LEA is defined as “any county school system, city school system, special school district, unified school system, metropolitan school system or any other local public school system or school district created or authorized by the general assembly.” Id. § 49-1-103(2). 6 Document received by the TN Court of Appeals. (b) Among the bottom ten percent (10%) of schools, as identified by the department in 2017 in accordance with § 49-1-602(b)(3); and A student in the ESA Program must enroll in a participating school2 and “[r]elease the LEA in which the participating student resides from all obligations to educate the participating student.” Id. §§ 49-6-2603(a)(1)-(3). The student is entitled to an allotment of funds that must be used for expenses such as tuition, textbooks, or Departmentapproved tutoring services. Id. § 49-6-2603(a)(4). Plaintiffs are the Metropolitan Government of Nashville and Davidson County (“Metro”), Shelby County Government (“Shelby County”), and the Metropolitan Nashville Board of Public Education (“Metro Board”).3 Plaintiffs brought an action in the Davidson County Chancery Court and alleged, in separate counts, that the ESA Program violated three provisions of the Tennessee Constitution—the Home Rule Amendment (Count I), the Equal Protection Clause (Count II), and the Education Clause (Count III). Civ. P. 12.02(6). (Appendix, Exhibit 2, Defs.’ Mot. to Dismiss, 1.) Defendants asserted, inter alia, that Plaintiffs did not have standing to A “participating school” is defined as a private school meeting certain state requirements, and seeking to enroll students in the Program. Tenn. Code Ann. § 49-6-2602(9). 2 Under Tenn. Code Ann. § 49-2-203, it is the local board of education that has the duties of managing and controlling public schools. 3 Defendants are the Tennessee Department of Education, the Commissioner of the Department, and Governor Bill Lee. The chancery court also permitted the intervention of three sets of “Intervenor Defendants.” 4 7 Document received by the TN Court of Appeals. Defendants4 moved to dismiss Plaintiffs’ complaint under Tenn. R. challenge the constitutionality of the ESA Program and that the ESA Program did not violate the Home Rule Amendment of the Tennessee Constitution. (Appendix, Exhibit 3, Defs.’ Mem. of Law in Support of Mot. to Dismiss, 5-8, 11-16.) Plaintiffs filed a motion for summary judgment as to Count I, i.e., their claim that the ESA Program violates the Home Rule Amendment. Because the ESA Program is scheduled to be implemented for the 2020-2021 school year, the chancery court considered these motions on an expedited basis. The court granted summary judgment to the Metro and Shelby County Plaintiffs, and denied Defendants’ motion to dismiss, on Count I. (Appendix, Exhibit 1, Mem. Op. and Order, 28-30.) The court concluded that Metro and Shelby County had established standing, while the Metro Board had not. (Id. at 16.) The court also concluded that enactment of the ESA Program violated the Home Rule Amendment. and ordered an injunction preventing state officials from implementing and enforcing the ESA Program. (Id.) But the chancery court also granted permission to appeal under Tenn. R. App. 9, sua sponte. The court determined that “this matter is appropriate for interlocutory and expedited appellate consideration.” (Id. at 30-31.) “It is a matter of significant public interest that is extremely time sensitive . . . .” (Id.) 5 Consistent with Tenn. R. App. P. 7(a), Defendants have moved the chancery court to stay its order pending action on this application for permission to appeal. 5 8 Document received by the TN Court of Appeals. (Id. at 28.) The court thus declared the ESA Program unconstitutional REASONS SUPPORTING INTERLOCUTORY APPEAL Interlocutory review of the chancery-court order is warranted for two reasons. First, there is a need to prevent irreparable injury. A delay in review of the court’s injunction preventing implementation and enforcement of the ESA Program would virtually eliminate additional student opportunity under the Program for the upcoming 2020-2021 school year. Second, as the chancery court itself recognized, the questions presented involve a matter of great public importance. I. Review is Needed to Prevent Irreparable Injury. One criterion for granting interlocutory review is “the need to prevent irreparable injury, giving consideration to the severity of the potential injury, the probability of its occurrence, and the probability that review upon entry of final judgment will be ineffective.” Tenn. R. App. P. 9(a). Interlocutory review of the chancery court’s order is needed in order First, enjoining implementation of the ESA Program will irreparably harm participating students, parents, and schools—all of whom have a substantial interest in the orderly implementation of the ESA Program. Implementation of the Program must begin now. Confirmation of an ESA award and enrollment in a private school before June 15, 2020, is crucial to operation of the Program for the 2020-2021 school year. (Appendix, Exhibit 4, Schuyler Aff., ¶ 4). 9 Document received by the TN Court of Appeals. to prevent irreparable injury. Second, a State suffers irreparable injury whenever it is wrongly enjoined from enforcing one if its duly enacted laws.6 And the chancery court wrongly enjoined implementation of the ESA Program. The court not only erred in ruling that Metro and Shelby County have standing— since neither alleges a distinct and palpable injury to the county government—but the court also erred in declaring the ESA Program unconstitutional. The Tennessee General Assembly has exclusive authority under the Tennessee Constitution to make decisions regarding the provision of education. See Tenn. Const. art. XI, § 12; see also S. Constructors, Inc. v. Loudon Cty. Bd. of Educ., 58 S.W.3d 706, 715 (Tenn. 2001) (stating that the legislature has “plenary and exclusive authority” to provide for a public-school system). Tennessee courts have long recognized the General Assembly’s considerable discretion in making educational policy 2005 WL 2051284, at *13-14 (Tenn. Ct. App. Aug. 25, 2005) (citing Tenn. Small Schools v. McWherter, 851 S.W.2d 139, 156 (Tenn. 1993)). That is precisely what the General Assembly was doing when it enacted the ESA Program—making an educational policy decision to provide additional opportunities for “students who reside in LEAs that have consistently and historically had the lowest performing schools.” 6 See Maryland v. King, 567 U.S. 1301, 133 S. Ct. 1, 2 (2012) (Roberts, C.J., in chambers) (“‘Any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’”) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). 10 Document received by the TN Court of Appeals. decisions. City of Humboldt v. McKnight, No. M2002-02639-COA-R3CV, Tenn. Code Ann. § 49-6-2611(a)(1). The Program does not violate the Home Rule Amendment because it involves a state matter—one that is squarely within the purview of the General Assembly. Statutes pertaining to a subject matter within the plenary power of the General Assembly do not fall within the restrictions of the Home Rule Amendment. City of Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 196 (Tenn. 1984); State ex rel. Cheek v. Rollings, 202 Tenn. 608 (1957). II. Review Is Needed on an Issue of High Public Importance. Interlocutory review is particularly appropriate here. As the chancery court observed, this matter is one of “significant public interest that is extremely time sensitive.” Indeed, there are few, if any, matters of more importance than the education of our children. The constitutional issue presented for review pits the State’s ability to engage in significant educational policy reform against a county’s ability to insist parents, and schools, as discussed above. The matter needs immediate appellate resolution. Deferring review until entry of a final judgment, while allowing the chancery court’s injunction to stand, would not only frustrate the legislature’s intent but would result in conflict and confusion for all involved. 11 Document received by the TN Court of Appeals. on local rule. All to the potential detriment of participating students, CONCLUSION AND RELIEF SOUGHT For the reasons stated, Defendants’ application for permission to appeal should be granted. The order of the trial court declaring the ESA Program unconstitutional and ordering a permanent injunction against its implementation and enforcement should be reversed. Respectfully submitted, HERBERT H. SLATERY III Attorney General and Reporter s/STEPHANIE BERGMEYER STEPHANIE BERGMEYER, BPR # 27096 JIM NEWSOM, BPR # 6683 E. ASHLEY CARTER BPR # 27903 MATT R. DOWTY, BPR # 32078 SHANELL TYLER, BPR # 36232 Assistant Attorneys General Office of the Tennessee Attorney General P.O. Box 20207 Nashville, Tennessee 37202 (615) 741-6828 Stephanie.Bergmeyer@ag.tn.gov 12 Document received by the TN Court of Appeals. ANDRÉE SOPHIA BLUMSTEIN Solicitor General CERTIFICATE OF SERVICE I hereby certify that on this 6th day of May, 2020, a true and exact copy of the foregoing was served via the court’s electronic filing system and forwarded by electronic mail (in lieu of U.S. Mail by agreement of the parties) to: Director Robert E. Cooper, Jr. Lora Barkenbus Fox Allison L. Bussell Department of Law of the Metropolitan Government of Nashville and Davidson County Metropolitan Courthouse, Suite 108 P.O. Box 196300 Nashville, Tennessee 37219 Marlinee C. Iverson E. Lee Whitwell Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, Tennessee 38103 Attorneys for Plaintiff Shelby County Government Jason I. Coleman 7808 Oakfield Grove Brentwood, Tennessee 37027 Local Counsel for Intervenor-Defendants Natu Bah and Builguissa Diallo Arif Panju Institute for Justice 816 Congress Avenue, Suite 960 Austin, Texas 78701 Attorney for Intervenor-Defendants Natu Bah and Builguissa Diallo 13 Document received by the TN Court of Appeals. Attorneys for Plaintiffs Metropolitan Government of Nashville and Davidson County Natu Bah and Builguissa Diallo David Hodges Keith Neely Institute for Justice 901 North Glebe Road, Suite 900 Arlington, Virginia 22203 Attorneys for Intervenor-Defendants Natu Bah and Builguissa Diallo Tim Keller INSTITUTE FOR JUSTICE 398 S. Mill Avenue, Suite 301 Tempe, AZ 85281 Counsel for Intervenor-Defendants Natu Bah and Builguissa Diallo Braden H. Boucek BEACON CENTER P.O. Box 198646 Nashville, Tennessee 37219 Brian K. Kelsey Daniel R. Suhr LIBERTY JUSTICE CENTER 190 S. LaSallee Street, Suite 1500 Chicago, Illinois 60603 Counsel for Intervenor-Defendants Greater Praise Christian Academy, Seasonal Enlightenment Academy Independent School, Ciera Calhoun, Alexandria Medlin, and David Wilson, Sr. s/STEPHANIE BERGMEYER STEPHANIE BERGMEYER 14 Document received by the TN Court of Appeals. Attorney for Intervenor-Defendants Bria Davis and Star Brumfield 1. Exhibit 1, Mem. Op. and Order 2. Exhibit 2, Defs.’ Mot. to Dismiss 3. Exhibit 3, Defs.’ Mem. of Law in Support of Mot. to Dismiss 4. Exhibit 4, Schuyler Aff. 15 Document received by the TN Court of Appeals. APPENDIX E-FILED 5/4/2020 6:06 PM CLERK & MASTER DAVIDSON CO. CHANCERY CT. IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE TWENTIETH JUDICIAL DISTRICT, DAVIDSON COUNTY THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, et al., Plaintiffs, v. TENNESSEE DEPARTMENT OF EDUCATION, et al., Defendants. and NATU BAH, et al., Intervenor-Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 20-0143-II MEMORANDUM AND ORDER codified at Tenn. Code Ann. §§ 49-6-2601, et seq. (“the ESA Act”). The ESA Act was passed at the 2019 Session of the 111th Tennessee General Assembly as 2019 Public Acts, c. 506, § 1, and signed into law by Governor Bill Lee on May 24, 2019. The ESA Act establishes a program allowing a limited number of eligible students to directly receive their share of the state and local funding that otherwise would be provided to the school system, to pay for private school education and associated expenses (“the ESA Program”). The number of eligible students increases over a five year period, and funds are to be allocated to the participating districts for the first three years to replace the lost dollars that the State previously allocated to their public school systems, which are now redirected to private schools along with the participating students. Document received by the TN Court of Appeals. This case regards a challenge to the Tennessee Education Savings Account Pilot Program, The Plaintiffs are the two county governments that are the only ones who meet the definition of eligibility under the ESA Act, the Metropolitan Government of Nashville and Davidson County (“Metro”) and Shelby County Government (“Shelby County Government”), as well as the school board that operates the system of one of them, the Metropolitan Nashville Board of Public Education (“Metro School Board”). The Plaintiffs challenge the ESA Act as violating the Tennessee Constitution on three grounds: Count I, as a violation of the Home Rule Amendment in Article XI, Section 9; Count II, as a violation of the Equal Protection Clauses in Article I, Section 8 and Article XI, Section 8; and Count III, as a violation of the Article XI, Section 12 requirement that the General Assembly establish a system of public education providing substantially equal educational opportunities to all students. The Plaintiffs seek declaratory and injunctive relief regarding the constitutionality and implementation of the ESA Act. The original defendants in this action were Governor Lee, Tennessee Department of Education Commissioner Penny Schwinn, and the Tennessee Department of Education become party-defendants to this action, comprised of parents of public school children in Davidson and Shelby Counties, and two independent schools wishing to accept eligible students (“the Intervenor Defendants” or “these Intervenor Defendants” as particular pleadings or combinations are referenced). Consideration of this matter and an expedited determination regarding the relief the Plaintiffs request is necessary because the State Defendants intend to implement the ESA Program for the 2020-2021 school year. The State has begun taking applications and must notify parents of students’ acceptance by mid-May, so that the parents can make educational decisions based upon the grant or denial of ESA funds. Likewise, it is agreed that the independent schools 2 Document received by the TN Court of Appeals. (collectively “the State Defendants”). Permission was granted for three sets of intervenors to participating in the ESA Program need to make decisions about student enrollment on or about June 1, 2020. Additionally, a group of Davidson and Shelby County parents and taxpayers filed a similar lawsuit, seeking the same and additional relief, on March 2, 2020. McEwen, et al. v. Lee, et al., Davidson County Chancery Court Case no. 20-242-II (“the McEwen case”). The McEwen Case involves essentially the same State Defendants and Intervenor Defendants. The last status conference and motion hearing included both cases and motions pending in both cases. The McEwen Case Plaintiffs had filed a motion for a temporary injunction, seeking to enjoin the State Defendants from moving forward with the ESA Program for the 2020-2021 school year. The Court is entering an Order in that case simultaneously with the issuance of this Memorandum and Order. THE PENDING MOTIONS The Court has pending before it the following motions in this case: Plaintiffs’ Motion for Summary Judgment on Count I of the Complaint, filed March 27, 2020  Greater Praise Christian Academy Intervenor Defendants’ Motion to Dismiss, filed March 6, 2020;  State Defendants’ Motion to Dismiss, filed March 11, 2020;  Bah, Diallo, Davis and Brumfield Intervenor Defendants’ Motion for Judgment on the Pleadings, filed April 15, 2020; and  State Defendants’ Motion to Consolidate with the McEwen Case, filed April 15, 2020. 3 Document received by the TN Court of Appeals.  The Court heard all of these motions, except for the Motion to Consolidate, on April 29, 2020. 1 The Court considered voluminous materials in relation to these motions, including legal memoranda, declarations, and legislative history materials. In this Memorandum and Order, the Court dismissed the Metro School Board as a plaintiff, grants Metro’s and Shelby County Government’s motion for summary judgment regarding Count I of the complaint, declaring the ESA Act unconstitutional pursuant to the Home Rule Amendment, and enjoins the State Defendants from its implementation. The Court defers ruling on the other motions, except for those challenging the Plaintiffs’ standing to bring or the failure to properly plead Count I, which the Court necessarily rules on in this decision. Additionally, the Court grants the parties the right to pursue immediate interlocutory relief with the Court of Appeals, without limiting their right to seek other applicable relief from the Supreme Court as is available and granted by that court. FINDINGS OF FACT It is undisputed that, based upon the definition of “eligible student” in the ESA Act, it is that the school systems which would be affected was discussed at length in the General Assembly when the ESA Act was being debated and finalized for enactment. Further, there is no dispute that the qualifications were tailored, through multiple amendments, to only include those two school systems, and that bill sponsors could only secure passage from representatives against the bill if 1 The Motion to Consolidate, though set for hearing, was reserved for hearing on another date because it is not time sensitive, and is more appropriately decided after the resolution of the pending dispositive motions and any related interlocutory appeals. 2 Although there is some back and forth in the briefing about Plaintiffs’ source for this assertion, and the certified nature (or lack thereof) of their source material, the State’s promulgated rules for the ESA Act, at Tenn. Rule & Reg. 0520-01-16-.02(11) (2020), define “eligible student” as “zoned to attend a school in Shelby County Schools, Metropolitan Nashville Public Schools, or is zoned to attend a school that was in the Achievement School District on May 24, 2019[.]” The Court will address inclusion of the Achievement School District herein, but it is not a county or municipal school system. The only two eligible school systems affected, as confirmed by the rules, are Shelby County Schools and Metro Nashville Public Schools. 4 Document received by the TN Court of Appeals. only applicable to schools in Davidson and Shelby Counties 2. It also cannot credibly be disputed their district school systems were excluded. This legislative history not dispositive to the Court’s ruling, but it is relevant and appropriate for consideration in the context of this constitutional challenge. The ESA Act’s Applicability In addition to making the ESA Program available to students who are eligible to attend school in Tennessee for the first time, i.e., newly age eligible for public school or a new resident of the state, the ESA Act defines eligible student as current public school students who: (i) [Are] zoned to attend a school in an LEA3, excluding the achievement school district (ASD)4, with ten (10) or more schools: (a) Identified as priority schools in 2015, as defined by the state’s accountability system pursuant to § 49-1-602; (b) Among the bottom ten percent (10%) of schools, as identified by the department in 2017 in accordance with § 49-1-602(b)(3); and (c) Identified as priority schools in 2018, as defined by the state’s accountability system pursuant to § 49-1-602 In 2015, the only LEAs with ten or more schools on the priority list were Metropolitan Nashville Public Schools (“MNPS”) in Nashville, Shelby County Schools (“SCS”) in Memphis, and the ASD. In 2017, the only LEAs with ten or more schools on the 2017 Bottom 10% list were “LEA” is a “local education agency” as defined at Tenn. Code Ann. § 49-1-103(2), which includes the state’s statutory scheme for the maintenance and operation of the public school system. The statute defines LEA the same as “school system,” “public school system,” “local school system,” “school district,” or “local school district” and “means any county school system, city school system, special school district, unified school system, metropolitan school system or any other local public school system or school district created or authorized by the general assembly.” 4 The achievement school district (“ASD”) was created by the General Assembly in 2010 as a Tennessee-wide district comprised of the lowest performing schools in the state, with the goal of increasing student achievement in those schools from the bottom 5% to the top 25%. Tenn. Code Ann. § 49-1-614. It is an “organizational unit of the department of education” and not associated with any county or municipality. Id. It falls within the definition of LEA as a “school district created and authorized by the general assembly” and is, by design, comprised of low performing schools. Tenn. Code Ann. § 49-1-103(2) 3 5 Document received by the TN Court of Appeals. Tenn. Code Ann. § 49-6-2602(3)(C)(i). MNPS, SCS, Hamilton County Schools, and the ASD. In 2018, the only LEAs with ten or more schools on the priority list were MNPS, SCS, and the ASD. The General Assembly’s stated purpose for the ESA Act was to improve educational opportunities for children in the state who reside in LEAs that have “consistently had the lowest performing schools on a historical basis.” Tenn. Code Ann. § 49-6-2611(a)(1). Legislative History of the ESA Act House Bill No. 939 House Majority Leader William Lamberth filed House Bill No. 939 on February 7, 2019, as a “caption bill” to be held on the House desk. The bill proceeded to the House Curriculum, Testing, & Innovation Subcommittee on March 19, 2019, after Rep. Mark White of Memphis filed Amendment No. 1 (HA0188). Amendment No. 1 sought to place several restrictions on eligibility for an ESA, including to define “eligible student” in Section 49-6-2602(3)(C) to be a student “zoned to attend a school in an LEA with three (3) or more schools among the bottom ten percent most recent (2017) performance numbers, eligible students would have come from Davidson, Hamilton, Knox, Madison, and Shelby Counties, or the ASD.5 The House Curriculum, Testing, & Innovation Subcommittee recommended the bill for passage if amended as set forth in Amendment No. 1, as did the other House committees and 5 The State Defendants question the reliability of the 2017 Bottom 10% List relied upon by the Plaintiffs. The Tennessee Department of Education is required to track school performance and has established an accountability system, set out in Tenn. Code Ann. § 49-1-601, et seq., for schools. This obligation includes identifying focus schools, or those in the bottom 10% of schools in overall achievement. Tenn. Code Ann. § 49-1-602(b). Tenn. R. Civ. P. 56.03 obligates the State Defendants to agree a proposed fact is undisputed, agree it is undisputed for purposes of summary judgment only, or demonstrate it is disputed with specific citations to the record. The Court does not take the State Defendants’ objection to the reference to the Plaintiffs’ copy of the 2017 Bottom 10% List, based on the best evidence rule in T.R.E. 902, seriously given that it has the statutory obligation to make public identification of focus schools on an annual basis and has not substantively challenged the factual assertion of what that list shows for 2017, that is, that the identified counties and the ASD are the only LEAs with three or more schools on the list. 6 Document received by the TN Court of Appeals. (10%) of schools in accordance with § 49-1-602(b)(3).” Under that definition, based upon the subcommittees considering it at the time.6 In the House Finance, Ways, & Means Committee hearing on April 17, 2019, then-Deputy House Speaker Matthew Hill of Jonesborough referred to the bill as a “four-county ESA pilot program,” which he explained was a pilot because it “limits it down to . . . just four counties” and “because we’re putting it in statute, it will stay in those four counties unless the legislature were to ever choose in the future to revisit the issue.” 7 Amendment No. 2 was introduced a few days later, on April 23, 2019, and changed the definition of “eligible student” to be a student who, among other requirements “[i]s zoned to attend a school in an LEA that had three (3) or more schools identified as priority schools in 2015 in accordance with § 49-1-602(b) and that had three (3) or more schools among the bottom ten percent (10%) of schools as identified by the department in 2017 in accordance with § 49-1-602(b)(3).” The LEAs with three or more priority schools in 2015 were the same as those included through Amendment No. 1, but excluded Madison County. The LEAs with three or more schools among the bottom 10% of schools in 2017 were the same, but included Madison County. Thus, the applicable to four counties and the ASD. House Bill No. 939 received the minimum number of votes the Tennessee Constitution requires to pass legislation, with 50 ayes and 48 nays, on April 23, 2019. This passage came after the vote was held open for 40 minutes with the House deadlocked at 49 ayes and 49 nayes. Rep. Jason Zachary of Knoxville changed his vote from nay to aye to break the tie, later telling reporters on camera that he had received assurances from then-House Speaker Glen Casada that Knox 6 Those were the House Education Committee; Government Operations Committee; Finance, Ways, & Means Subcommittee; and Finance, Ways, & Means Committee. 7 This is confusing because, at the time, with Amendment 1 the proposed act would apply to five counties. Apparently Rep. Hill was referencing the leadership’s intentions to further narrow the application of the proposed act to eliminate a county, as set out in Amendment 2. 7 Document received by the TN Court of Appeals. addition of this eligibility criteria effectively eliminated Madison County from the list, leaving it County would be excluded from the Senate version of the bill. Rep. Zachary further stated, “I support the ESAs and I support the premise of ESA, but I couldn’t do it unless Knox County was taken out.” Then-House Speaker Casada confirmed Rep. Zachary’s statements, stating on camera: “Knoxville, Knox County will be taken out of the bill.” In his remarks about the ESA Act on the House Floor before the vote was taken, thenDeputy House Speaker Hill summarized the House majority’s motives as follows: “Ladies and gentlemen, today on this Floor, the House is leading. We are leading the way to protect LEAs, while also ensuring that our poorest children in those deep blue metropolitan areas have a fighting chance at a quality education.” Senate Bill No. 795 Senate Majority Leader Jack Johnson of Franklin filed Senate Bill No. 795, the Senate companion to House Bill No. 939, on February 5, 2019. The bill proceeded to the Senate Education Committee, which recommended it for passage on April 10, 2019 with Amendment No. 939, applying the ESA Act to LEAs in five counties—Davidson, Hamilton, Knox, Madison, and Shelby—with the potential to include or drop counties automatically in the future. When Senate Bill No. 795 reached the Senate Floor, two days after passage of House Bill No. 939, the Senate voted to substitute the House bill as the companion Senate bill. At the time, the House version applied the Act in four counties -- Davidson, Hamilton, Knox, and Shelby – which list was static based on the student eligibility criteria. Immediately thereafter, the Senate adopted Senate Amendment No. 5 (SA0417), introduced by Sen. Bo Watson of Chattanooga, which stripped the language from House Bill No. 939 and substituted new language narrowing the definition of “eligible student” in Section 49-6-2602(3)(C). The new language increased from 8 Document received by the TN Court of Appeals. 1 (SA0312). This amendment was identical to Amendment No. 1 (HA0188) to House Bill No. three to ten the number of schools that had to be identified as priority schools in 2015 and 2018, and increased from three to ten the number of schools that had to be among the bottom 10% of schools in the state in 2017 (i.e., focus schools). This effectively removed Knox County and Hamilton County from the ESA Program because Hamilton County had five priority schools in 2015 and nine in 2018, and Knox County had four priority schools in 2015 and none in 2018. The new language also included within the definition of “eligible student” a student zoned to attend a school in the state’s ASD on the act’s effective date. All criteria for defining an “eligible student” in Amendment No. 5 were based on specific years; thus, the list of affected LEAs became static, as in the House version. The Senate adopted House Bill No. 939, as amended, with 20 ayes and 13 nays, on April 25, 2019. Conference Committee Report and Final Passage When the Senate’s version of the bill was transmitted to the House, the House non- their positions. Therefore, on April 30, 2019, the House and Senate speakers appointed members to a conference committee to resolve the differences between the two bills. On May 1, 2019, the conference committee submitted its report to both chambers. The conference committee bill retained the definition of “eligible student” as adopted by the Senate, which limited the bill’s application to Davidson and Shelby counties and ensured that the bill could never apply to any other county. Rep. Patsy Hazelwood of Signal Mountain voted against the bill when it passed the House on April 23, 2019, but she voted for the conference committee report. She explained on the House floor on May 1 why she changed her vote: “I committed to vote for ESAs if Hamilton 9 Document received by the TN Court of Appeals. concurred in the Senate’s amendments to the bill. Both the Senate and the House remained firm in County was excluded from the program. The language that’s in this conference report here today does that. As a result, I’m going to be keeping my commitment and I will vote for this bill.” Both the House and Senate adopted the conference committee report on May 1, 2019, the House by 51 ayes and 46 nays, and the Senate by 19 ayes and 14 nays. Governor Lee signed the ESA Act on May 24, 2019. ESA Act Implementation The State Defendants have determined that the ESA Program will be implemented for the 2020-2021 school year, in Davidson and Shelby counties. The Tennessee State Board of Education’s (“State Board”) rules for implementing the ESA Act became effective on February 25, 2020, after proposed rules were issued in November of 2019. The State Defendants are taking applications for the ESA Program, and have agreed to delay notifications to parents regarding acceptance until May 13, 2020 as set out in the Court’s April 20, 2020 Order.8 state and local funds generated through the basic education program (“BEP”) for the relevant LEA, not to exceed the statewide average of BEP funds per pupil. Tenn. Code Ann. § 49-6-2605; see generally Tenn. Code Ann. § 49-3-307. The ESA funds are paid directly to the participating students, who then use them for appropriate expenses, including tuition, for private school education. Id. The ESA Act, and the associated rules, include accountability and compliance provisions to monitor and ensure that the funds are used for appropriate expenditures. Tenn. Code At the April 14, 2020 status conference, in discussing the State’s timetable for implementing the ESA Act and the reality of when participating schools and parents need to make decisions about ESA funds, June 1, 2020 was the date identified as a target deadline for a decision. The Court does not find anything in the record or relevant rules that establish June 1, 2020 as a published or mandatory deadline, but takes judicial notice that the date is reasonable in relation to the generally established school calendar. 8 10 Document received by the TN Court of Appeals. The funds received by a student in the ESA Program equate to the amount of per-pupil Ann. §§ 49-6-2605(g) and 49-6-2607. The ESA Act also allows for up to 6% of the annual ESA award to be retained for oversight and administration of the program, and allows for contracting with a non-profit organization to perform some or all of those services. Tenn. Code Ann. § 49-62605(h) & (i). The ESA Program is limited to 5,000 students the first year, and increases by 2,500 students per year, for a five year maximum of 15,000 students. Tenn. Code Ann. § 49-6-2604(c). The ESA Act does not distribute the ESA fund availability between Davidson and Shelby counties, thus it is unknown until the program is implemented and students selected how many will come from each county and the amount of associated BEP funds that will be involved. Id. The parties dispute among them how the math will work and the significance of the impact on MNPS and SCS, with varying assertions about purported significant shortages and resulting windfalls. The Court makes no findings regarding those issues in this Memorandum and Order, and they remain for determination, if needed, at a later date. Metro was established by charter on April 1, 1963 as a municipal corporation consolidating the local government and corporate functions of the City of Nashville and Davidson County, pursuant to the 1957 law establishing such entities. Tenn. Code Ann. §§ 7-1-101, et seq.; Metro Charter. Relevant to this matter, as required by state law, the Metro Charter establishes the MNPS, the Metro School Board and the membership thereof. Metro Charter, Art. 9; Tenn. Code Ann. § 7-2-108(a)(18). It defines the powers and duties conferred upon the Metro Board therein. Id. Shelby County Government was created by the Shelby County Charter, approved by the voters of Shelby County on August 2, 1984, and became effective September 1, 1986. Tenn. Code Ann. § 5-1-201, et seq.; Shelby County Charter. 11 The Shelby County Charter acts as a Document received by the TN Court of Appeals. The Plaintiffs “Constitutional Home Rule Charter” and empowers “the mayor, county commission, and elected county charter officers, except those powers reserved to the judiciary” with “all lawful powers.” Shelby County Charter § 1.02. It “place[s] in the hands of the people of Shelby County the power to effectively operate its government without going to the state legislature in Nashville for changes.” Shelby County Charter Intro. The Shelby County Charter explicitly prohibits its application to “county school funds or to the county board of education, or the county superintendent of education for any purpose[,]” except regarding certain residency and salary/expense requirements. Id. at § 6.02. Article XI, Section 12 of the Tennessee Constitution provides as follows: The State of Tennessee recognizes the inherent value of education and encourages its support. The General Assembly shall provide for the maintenance, support and eligibility standards of a system of free public schools. The General Assembly may establish and support such postsecondary educational institutions, including public institutions of higher learning, as it determines. Title 49 of the Tennessee Code establishes the system of public education in Tennessee, as enacted in this section of the Code, it establishes a state Department and Board of Education, Tenn. Code Ann. §§ 49-1-101 – 1109, and a system for local administration of public schools, or LEAs, defining the roles of county legislative bodies, and providing for the establishment of local boards of education. Tenn. Code Ann. §§ 49-2-101 - 2101. County legislative bodies are responsible for budgeting and appropriating school funding, obtaining and reviewing quarterly reports from their school boards, auditing school expenditures, and issuing bonds and levying taxes for school funding. Tenn. Code Ann. § 49-2-101. School boards are comprised of elected officials whose job it is to manage and operate school systems or LEAs. Tenn. Code Ann. § 49-2-203; see generally, Tenn. Code Ann. §§ 5-9-402(a) and 49-2-201. 12 Document received by the TN Court of Appeals. by the General Assembly pursuant to this constitutional charge. Among the extensive provisions As set out above, the Metro Charter expressly established the MNPS and the Metro School Board, while the Shelby County Charter expressly does not apply to the SCS or the Shelby County School Board. They both are established consistent with the obligations on Metro and Shelby County Government pursuant to Tenn. Code Ann. §§ 49-2-101 and 7-2-108. LEGAL ANALYSIS Summary Judgment Standard Tenn. R. Civ. P. 56.04 sets forth the summary judgment standard, which requires that summary judgment be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Tennessee law interpreting Rule 56 provides that the moving party shall prevail if the nonmoving party’s evidence is insufficient to establish an essential element of her claim. Tenn. Code Ann. § 20-16101; Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 261-62 (Tenn. 2015). The Defendants assert that the Metro School Board, which operates and maintains Metro’s school system, does not have standing to sue on its own behalf. They further contend that Metro and Shelby County Government, who are responsible for funding MNPS and SCS, also do not have standing to sue. The Court agrees that the Metro School Board does not have standing, but finds that Metro and Shelby County Government do have standing and are the proper plaintiffs in this matter. 9 The standing issue has a close relationship to, and is intertwined with, the legal issues the Court must consider in relation to the substantive Home Rule Amendment challenge. The Court addresses standing separately in this Memorandum and Order because it is important to determine early in this case. Considerations regarding Metro and Shelby County Government’s relationships to their school boards, and the extent of their obligations to provide and help fund a public school system for their citizens, is integral to the Home Rule Amendment analysis and continues to be addressed throughout this opinion. 13 Document received by the TN Court of Appeals. Plaintiffs’ Standing9 Federal courts construing Tennessee law have consistently found that the Metro School Board, as a subdivision of Metro, cannot itself sue or be sued because it was not granted that authority in the Metro Charter. Wagner v. Haslam, 112 F.Supp.3d 673, 698 (M.D.Tenn. 2015); Blackman v. Metro Public Schools, No. 3:14-1220, 2014 WL 4185219 (M.D.Tenn. Aug. 21, 2014); Haines v. Metropolitan Gov’t, 32 F.Supp.2d 991, 994 (M.D.Tenn. 1998). In all of these cases, Metro sought and obtained dismissal of the Metro School Board as a defendant because it is a political subdivision of Metro. There are two Tennessee cases -- Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706 (Tenn. 2001) and Byrn v. Metropolitan Bd. of Public Educ., No. 01-A-019003CV00124, 1991 WL 7806 (Tenn. Ct. App. Jan. 30, 1991) – in which courts found that the local boards of education were proper party defendants. In both cases, however, the issues involved the enforcement of a contract the board was specifically authorized to enter based upon the express grant of powers by the General Assembly to schools boards in Tenn. Code. Ann. § 49-2-203. when a dispute arose, attempted to enforce the contractually-agreed-upon arbitration clause. The contractor claimed that the school board did not have the authority to arbitrate as a stand-alone entity. In finding otherwise, the Court interpreted the authority to enforce construction contracts to be inferred from Tenn. Code. Ann. § 49-2-203, and specifically subpart (a)(4), “which confers upon county school boards the authority to `[p]urchase all supplies, furniture, fixtures and material of every kind through the executive committee.’” 58 S.W.3d at 716. The Court justified inserting an unwritten right because “the General Assembly can hardly be expected to specify in minute detail the incidents of power conferred upon local governments” and that “the power to arbitrate is fairly implied from the express power to contract in the first instance.” Id. at 716. 14 Document received by the TN Court of Appeals. In Southern Constructors, the school board contracted for construction of a building, and In Byrn, a non-tenured teacher sued the Metro School Board for declaratory relief pursuant to his union contract, seeking a hearing before the school board about the decision not to renew his contract. The Metro School Board argued that it could not be a defendant because it did not have the capacity to be sued. 1991 WL 7806, at *2. The trial court agreed, dismissing the case. In overturning that decision, the Court of Appeals focused specifically upon the statutory authority conferred upon school boards to contract with their employees, as well as to recognize and bargain collectively with unions, the beneficiaries of which are teachers. Id. at *4 (citing Tenn. Code Ann. § 49-2-203(a)(1) (1990)). The Court then found as follows: The local boards, not the counties, have the exclusive authority to negotiate and to enter into contracts with or for the benefit of their teachers. By necessary implication, the power to contract must be accompanied by the responsibility to perform the contract and the obligation to be held accountable for failure to perform. Any other conclusion would make a mockery of the contracting process. Id. at *5 (footnote omitted). In Wagner, a federal court finding no standing for the Metro School Board to sue acknowledged that the two Tennessee cases cited above could arguably be seen as inconsistent with its finding. The Wagner court distinguished the two cases based upon the specific, contractrelated issues the courts considered in their analyses: Although this may be an issue of some complexity, the court finds no reason to construe Southern Constructors or Byrn as inconsistent with this court's reasoning in Haines. Both Southern Constructors and Byrn involve district-specific considerations related to the specific contract-related rights that Tennessee has conferred upon particular localities, not the considerations specific to the Metro Nashville Charter that this court scrutinized in Haines. 15 Document received by the TN Court of Appeals. State law does not specifically empower local boards to bring suit, nor does it specifically provide that local boards can be sued. Specific authority, however, is not required insofar as declaratory judgment actions seeking to construe collective bargaining agreements are concerned. In these cases, the combined effect of the Education Professional Negotiations Act and the declaratory judgment statutes is to permit these actions to be maintained. 112 F.Supp.2d at 698. The Court agrees with the analysis in Wagner and determines that the Metro School Board can only sue on its own behalf if it can demonstrate that its standing is implied through one of the enumerated duties conferred on it by the General Assembly or the Metro Charter.10 The Court does not find any such duties exist in the Tennessee Code or the Metro Charter, and no persuasive authority stating otherwise has been provided by Metro or the Metro School Board. Indeed, their position in this case is diametrically opposed to the position they take in every case, of which this Court is aware, in which the Metro School Board has been sued. Reliance on the Metro School Board’s obligation to “[m]anage and control all public schools established or that may be established under its jurisdiction” cannot, under this precedent, be read to confer standing in this matter. The Metro School Board does not have the capacity to be a plaintiff in this action and is therefore dismissed. 11 Though the Metro School Board does not have standing as a plaintiff in this action, Metro comprehensive and detailed statutory scheme concerning education in this State, compiled in Title 49 of the Tennessee Code and comprising an entire volume of that code.” Weaver v. Ayers, 756 S.W.2d 217, 221 (Tenn. 1988). Although the concept is that local governments provide funding and limited oversight and the school systems or LEAs operate the schools, both entities are 10 The federal district court in Haines, unlike the Courts in Southern Constructors and Byrn, did not look behind the powers and duties of the Metro School Board in finding that the absence of the authorization to sue or be sued, as compared to the specific inclusion of that power for Metro, barred suit against the Metro School Board. 32 F.Supp.2d at 994. This Court does not interpret its analysis as inconsistent with the analysis in that case, but does find that these two Tennessee cases instruct it to determine whether there is a related power or duty otherwise conferred that bootstraps in an ability to sue or be sued. 11 The Court specifically does not make this finding based upon Section 2611(d) of the ESA Act. The constitutionality of the entire ESA Act, including this provision, is under review. Thus, a provision in the ESA Act barring school boards from suing under the Act is not a legally sufficient basis, or even a consideration for this Court, in reviewing the Metro School Board’s standing. 16 Document received by the TN Court of Appeals. and Shelby County Government do. As discussed above, “[t]he General Assembly has enacted a responsible, in combination, to provide public education in a particular municipality or county. The Supreme Court discussed this further in Weaver: An examination of this statutory scheme clearly reveals that a partnership has been established between the State and its political subdivisions to provide adequate educational opportunities in Tennessee. At the county level, the State has divided the responsibilities allocated to the counties between the county board of education and the county legislative body. While the local board of education has exclusive control over many operational aspects of education policy, subject to the rules and regulations of the State Department of Education, the county legislative body has the authority to appropriate the funds necessary to carry out the county education program. Id. at 221-222 (emphasis added). Both the government of the political subdivision, whether it be a consolidated city/county government like Metro or a constitutionally chartered home rule government like Shelby County Government, and its companion school board, have the responsibility for providing a public education to their school children. They are not mutually exclusive and one cannot exist without the other. “Tennessee law acknowledges that educating children is a collaboration between administrative and financial bodies.” Board of Educ. of Shelby Putnam Cnty. Educ. Ass’n v. Putnam Cnty. Comm’n, No. M2003-04041-COA-R3-CV, 2005 WL 1812624, at *5 (Tenn. Ct. App. Aug. 1, 2005)). The same cases the Defendants rely upon to dispute the Metro School Board’s standing support the standing of Metro and Shelby County Government. For instance, in Haines, the Court allowed the plaintiff’s challenge, pursuant to Title IX of the Education Act of 1972, to proceed against Metro, holding “[t]he fact that the Board lacks the capacity to be sued does not mean that it is free to disregard Title IX’s prohibitions. It simply means that Plaintiffs’ lawsuit must be directed towards the appropriate division of government. . . . Under Tennessee law, such capacity lies with the Metropolitan Government and not the Metropolitan Board of Public Education.” 32 17 Document received by the TN Court of Appeals. County, Tenn. v. Memphis City Bd. of Educ., 911 F.Supp.2d 631, 645 (W.D.Tenn. 2012) (citing F.Supp.2d at 995-996. Indeed, in Wagner, even though the plaintiffs had not included Metro as a party-defendant, the Court found that to be “a nominal problem that is easily cured” and “construe[d] the claims as asserted against Metro Nashville itself.” 112 F.Supp.2d at 698. In Southern Constructors, the Supreme Court held that “while county boards of education are not part of the general county government in the sense that they derive their powers and duties from the county charter, they are in essence part of that local government, exclusively vested with statutory authority in all matters relating to public education.” 58 S.W.3d at 715. This finding is consistent with what that Court said over ten years earlier in Weaver, and what the federal court determined a year later in Board of Education of Shelby County – local governments and their schools boards are in a partnership, with each having separate but indispensable responsibilities to provide a public school education for its citizens. They exist as separate legal entities, but are inexplicably intertwined in the General Assembly’s statutory scheme for the education of Tennessee school children. Just because the Metro School Board has specific responsibilities to importance of the local government’s role within the school system. Tennessee courts and federal courts applying Tennessee law have consistently recognized the standing – usually as a defendant but sometimes as a plaintiff – for local governments to sue and be sued based upon a claim that is directed at the actions of their school systems. Metro and Shelby County Government are the proper plaintiffs in this action and the Court recognizes their standing to pursue their constitutional challenges to the ESA Act. The Home Rule Amendment 18 Document received by the TN Court of Appeals. operate schools pursuant to the Tennessee Code and the Metro Charter, that does not minimize the Article 11, Section 9 of the Tennessee Constitution, known as the Home Rule Amendment, was enacted in 1953 and reads, in pertinent part, as follows: The General Assembly shall have no power to pass a special, local or private act having the effect of removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term for which such public officer was selected, and any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected. Tenn. Const. art. XI, § 9 (emphasis added). It requires the State, if the General Assembly passes an applicable private act, to obtain approval from the local legislative body or its electorate. Tenn. Code Ann. § 8-3-201 specifies that the Secretary of State be notified of such a private act and transmit a certified copy to the affected jurisdiction. The Tennessee Code then details the timing and effect of the certification process. The General Assembly’s classification of an act as public or private, however, is irrelevant. “The sole constitutional test must be whether the legislative S.W.2d 549, 551 (Tenn. 1975). The enactment of the Home Rule Amendment illustrated a significant shift in Tennessee law to vest local governments with more authority and control, previously overwhelmingly exercised by the state government. Elijah Swiney, John Forrest Dillon Goes to School: Dillon’s Rule in Tennessee Ten Years After Southern Constructors, 79 Tenn. L. Rev. 103 (Fall 2011). Dillon’s Rule, which pre-dates the Home Rule Amendment as an applicable legal maxim in Tennessee, provides: It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the 19 Document received by the TN Court of Appeals. enactment, irrespective of its form, is local in effect and application.” Farris v. Blanton, 528 declared objects and purposes of the corporation, - not simply convenient, but indispensable. Id. at 106. Scholars have translated this to mean “a state’s authority over its local governments `is supreme and transcendent: it may erect, change, divide, and even abolish, at pleasure, as it deems the public good to require.’” Id. (quoting Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1059, 1111-12, note 4 (1980)). Dillon’s Rule was discussed at length by the Supreme Court in its 2001 decision in Southern Constructors. In that case the Court described it as “[M]unicipal governments in Tennessee derive the whole of their authority solely from the General Assembly and that courts may reasonably presume that the General Assembly ‘has granted in clear and unmistakable terms all [power] that it has designed to grant.’” 58 S.W.3d at 710. This is consistent with Article II, section 3 of the Tennessee Constitution which “confers upon the General Assembly the whole of the state’s legislative power, and with limited exception. . . the General Assembly has the sole and plenary authority to determine whether, and under what circumstances, As discussed in the above cited law review article, and as further set out in Southern Constructors, this top-down delegation of power changed in Tennessee with the adoption of the Home Rule Amendment. The 1953 Tennessee Constitutional Convention “radically overhauled” the Tennessee Constitution, including the insertion of the Home Rule Amendment designed to “empower[] local governments.” 79 Tenn. L. Rev. at 119. “The effect of the home rule amendments was to fundamentally change the relationship between the General Assembly and [home rule chartered] municipalities, because such entities now derive their power from sources other than the prerogative of the legislature” and Dillon’s Rule is no longer applicable to them. Southern Constructors, Inc., 58 S.W.3d at 714. 20 Document received by the TN Court of Appeals. portions of that power should be delegated to local governments.” Id. at 711. The Defendants ask the Court to construe the Home Rule Amendment as inapplicable to LEAs, or local school districts, because they are not counties or municipalities. The Court disagrees, and addresses the authority upon which they rely. In two Tennessee cases cited by the Defendants, the courts have declined to apply the Home Rule Amendment to separately established entities. See Perritt v. Carter, 204 Tenn. 611, 325 S.W.2d 233 (1959); Fountain City Sanitary Dist. v. Knox County Election Comm’n, 203 Tenn. 26, 308 S.W.2d 482 (Tenn. 1957). In both of those cases, however, the quasi-governmental entity at issue was not operated or owned by a county or municipality: they were truly independent. The special school district in Perritt included a portion of Carroll County and the incorporated Town of Huntingdon. The Court found “a special school district does not come within the definition of a municipality as contemplated in said Home Rule Amendment.” 325 S.W.2d at 233-34. The utility district in Fountain City also did not meet the definition, nor could conceivably so, of municipality. 308 S.W.2d at 484-485.12 Chattanooga-Hamilton County Hosp. Auth. v. City of Chattanooga, 580 S.W.2d 322 (Tenn. 1979). That case is particularly distinguishable from the present one in that the statute at issue was passed as a private act and was thus referred to the affected county for a referendum vote. The county voted to approve the act that established a hospital authority, and the city located within the county sued, asserting the right to weigh in on the approval of the private act as well. The Court, in rejecting the city’s challenge, did so because it was not substantially affected by the private act and thus was not entitled to approval. Id. at 328. The Court notes the Fountain City court’s dicta, based on citation to a California case, that a school district is not the same as a city. Id. at 484. The Court does not view that reference as authority that a locally operated school system is not covered by the Home Rule Amendment, since it is wholly a function of the local government. 12 21 Document received by the TN Court of Appeals. Additionally, the Supreme Court declined to find a Home Rule Amendment violation in The Court also does not read City of Humboldt v. McKnight to stand for the proposition that the Home Rule Amendment is not applicable to LEAs. Case No. M2002-02639-COA-R3CV, 2005 WL 2051284 (Tenn. Ct. App. Feb. 21, 2006). This was an equal protection case regarding the validity of a special school district and whether the county in which it resided had an obligation to maintain a public school system. The decision is not a commentary on whether a local school system is or can be a county or municipality for application of the Home Rule Act. These cases separately, and as a whole, do not support the Defendants’ position that a county or municipal school system cannot bring a challenge under the Home Rule Amendment to a law affecting that school system. Indeed, as just addressed in relation to standing, courts identify counties or municipalities and their school systems as the same, with inextricably intertwined interests. See Board of Educ. of Shelby Co., 911 F.Supp.2d at 645 (“Tennessee law acknowledges that educating children is a collaboration between administrative and financial bodies. . .an injury to the purse is sufficient to establish a `close relationship’ between a school board and its students, The Home Rule Amendment Components The three components of the Home Rule Amendment relevant for consideration in this constitutional challenge is whether the ESA Act is local in form and effect, whether it is applicable to a particular county, and whether it involves matters of local government proprietary capacity. Local in Form and Effect Plaintiffs assert that the ESA Act can only ever apply to Davidson and Shelby Counties, and that it is local in form and effect. Their position is that the localized nature of the law can be discerned from reviewing the criteria for eligible students, which was designed to only apply to their two school systems, and that intent and design is borne out by the legislative history. 22 Document received by the TN Court of Appeals. the controller of that purse also has standing to protect the rights of students.”). The Defendants argue that the criteria for eligibility is neutral, and thus not locality specific – especially with the inclusion of the ASD. Further, they contend that education is a state, not local, responsibility and that the ESA Act is thus not “local” as that term is used in the Home Rule Amendment. The Court has already analyzed the structure of the Tennessee education system, and the delegation of education responsibilities to local governments and boards of education by the General Assembly. Based on those concepts, the Court does not find education to be inherently non-local such that a law effecting it cannot be local in effect. The Court is instructed to look at substance over form in determining whether the ESA Act is local in form and effect. Board of Educ. of Shelby County, 911 F.Supp.2d at 652; Farris, 528 S.W.2d at 551. This review may include a consideration of legislative history, but accords it limited weight - particularly stray comments by legislators that cannot be attributed to the entire body - with a presumption of good faith intentions. Board of Educ. of Shelby County, 911 actually is or was designed to be limited locally, and could not potentially be applicable to other localities or throughout the state. Civil Service Merit Bd. of the City of Knoxville v. Burson, 816 S.W.2d 725, 729 (Tenn. 1991) (quoting Farris, 528 S.W.2d at 552)). Just because a statute affects a particular county when passed is not dispositive as to constitutionality. If it is potentially applicable elsewhere, based upon the criteria used for applicability, then it is not local in form and effect. Id. at 729. This standard has been applied to defeat constitutional challenges to statutes that apply to particular forms of local government that, though utilized by few, are available to all, or population brackets that, by their nature, will apply to an expanding or contracting list of localities over time. Id. at 729-30 (citing Doyle v. Metropolitan Gov’t, 225 Tenn. 496, 471 S.W.2d 23 Document received by the TN Court of Appeals. F.Supp.2d at 653, 660; Farris, 528 S.W.2d at 555-56. The principal inquiry is whether the law 371 (1971); Metropolitan Gov’t of Nashville & Davidson County v. Reynolds, 512 S.W.2d 6, 9-10 (Tenn. 1974); Bozeman v. Barker, 571 S.W.2d 279, 280 (Tenn. 1978); Frazer v. Carr, 210 Tenn. 565, 360 S.W.2d 449 (1962)). The State Defendants rely heavily on cases involving unsuccessful Home Rule Amendment challenges in which the subject statute’s application could potentially broaden. For instance, in Frazer, the law specifying how metropolitan government charter commission members were selected only applied to counties in a certain population bracket. 360 S.W.2d 449. The only counties of that size at that time were Davidson, Hamilton, Knox and Shelby. Id. at 452. But because the law was “applicable to every county which falls within an admittedly reasonable classification,” it did not violate the Home Rule Amendment. Id. In Bozeman, the law in question set minimum salaries for certain court officers in counties with populations of a certain size. 571 S.W.2d 279. The Court upheld the act as not violating the Home Rule Amendment because “[i]t presently applies to two populous counties. It can become applicable to many other counties Finally, in Burson, a law establishing uniform qualifications for civil service board members in counties over a certain size was unsuccessful because its limited current impact could broaden significantly as more counties grew in size and chose to have civil service systems. 816 S.W.2d at 729-730. It is undisputed that the ESA Act, based upon the criteria for eligible students, can only ever apply to MNPS and SCS, because it is based upon classifications set in the past. In other words, performance data from 2015, 2017 and 2018 cannot change. Any improvements at MNPS 24 Document received by the TN Court of Appeals. depending on what population growth is reflected by any subsequent Federal Census.” Id. at 282. and SCS, or deterioration of systems in other parts of the state, will not change the fact that the ESA Act only applies to, and will continue to apply to, MNPS and SCS. 13 Additionally, the legislative history of the General Assembly’s consideration and passage of the ESA Act confirms that the Act was intended, and specifically designed, to apply to MNPS and SCS, and only MNPS and SCS. See Board of Educ. of Shelby County, 911 F.Supp.2d at 659660; Farris, 528 S.W.2d at 555-556. The Court finds, based upon the particular criteria in the ESA Act, and upon the legislative history detailing the extensive tweaking of the eligibility criteria in order to eliminate certain school districts to satisfy legislators (rather than tweaking to enhance the merits of the Act) that the legislation is local in form and effect. The three pronged criteria eventually settled upon by the General Assembly is “narrowly designed” to apply only to Davidson and Shelby Counties, and constitutes a “`group of conditions’ . . . `so unusual and particular’ that `only by the most singular coincidence could [it] be fitted to’” another locality. Board of Educ. of Shelby County, 911 “horse trading” associated with changing eligibility criteria to satisfy legislators who wanted their counties excluded, resulted in an act that, in form and effect, is local. Applicable to a Particular County The Defendants argue that the ESA Act does not apply to a county or municipality, but rather to LEAs, and thus it cannot violate the Home Rule Amendment. As discussed above, school systems (which are the same as LEAs) cannot be viewed as separate and distinct from the local 13 If an argument were to be made that the General Assembly may choose to amend the ESA Act in the future to remove MNPS and/or SCS as a “reward” for improving its performance scores, or to add systems to “punish” them for poor performance, it would not be a consideration in the Home Rule Amendment analysis. As set out in Farris, “We cannot conjecture what the law may be in the future. We are not at liberty to speculate upon the future action of the General Assembly.” 528 S.W.2d at 555. The same concept applies to any argument that the fact the ESA Act is a “pilot” has significance. 25 Document received by the TN Court of Appeals. F.Supp.2d at 658. The entire process of the General Assembly, including the amendments and governments that fund them. They are truly in a partnership. The local government legislative bodies are elected to represent the people, including raising revenue and appropriating funds for local governmental purposes such as education. Weaver, 756 S.W.2d at 222. Tennessee has a total of 95 counties. The ESA Act applies to, and can only ever apply to, two of those 95. In Leech v. Wayne County, the Supreme Court analyzed the Home Rule Amendment in relation to local election laws applicable to particular forms of local governments. 588 S.W.2d 270 (Tenn. 1979). In that instance, where the subject law would potentially affect two counties, the Court held that “[w]here . . . the General Assembly has made a permanent, general provision, applicable in nearly ninety of the counties, giving the local legislative bodies direction as to the method of election of their members, we do not think it could properly make different provisions in two of the counties.” Id. at 274. In Burson, although the challengers to the statute in question were unsuccessful in their Home Rule Amendment challenge, the Court applied the Home Rule Amendment analysis despite Bozeman, 571 S.W.2d at 282. Finally, as to this issue, the Court does not find the inclusion of the ASD as broadening the effect among municipalities or counties so as to defeat this prong of the challenge. The court in City of Humboldt found that a special school district was not the same as a municipality or county government. 2005 WL 2051284, at *16. Therefore, the inclusion of the ASD, a special school district that is an “organizational unit of the [state] department of education” cannot be considered a county or municipal entity. The Court does not find that the Home Rule Amendment is only applicable to laws that affect one county or municipality. There has not been a bright line established regarding how 26 Document received by the TN Court of Appeals. the fact three, and not one, county was affected by the law. 816 S.W.2d at 728-730; see also, many counties or municipalities is too many for it to be considered a potential Home Rule Amendment violation, but the Court is confident that a law only affecting, and ever being able to affect, two counties or municipalities is potentially unconstitutional. Involves Government or Proprietary Capacity “`Education is a governmental function and in the exercise of that function the county acts in a governmental capacity.’” Brentwood Liquors Corp. of Williamson County v. Fox, 496 S.W.2d 454, 457 (Tenn. 1973) (quoting Baker v. Milam, 231 S.W.2d 381 (1950)). The Defendants argue that education is not a local government function, but rather one for the State based upon its constitutional mandate. As discussed at length in this opinion, the State has shared that responsibility with local governments and made education a governmental function of counties and/or municipalities. The Defendants cannot colorably argue that Metro and Shelby County Government are not engaging in government functions in their proprietary capacities when operating their school systems. persuasive. 672 S.W.2d 193 (Tenn. 1984). In Dossett, the Court found that a law restricting the criminal jurisdiction of municipal courts in jurisdictions of a particular population size was not enacted in violation of the Home Rule Amendment. The basis of that decision was that the state judicial system, and particularly the jurisdiction of criminal offenses, was not local in nature. Id. at 195. “In many of the foregoing authorities and in numerous others it has been stated that cities and counties are arms of state government and exist for the convenience of the State for purposes of local government. These are given certain protection from interference by the General Assembly under the Home Rule Amendment with respect to local matters, but not with respect to the general judicial power of the state nor with respect to jurisdiction over violation of the state’s 27 Document received by the TN Court of Appeals. The State Defendants’ reliance on City of Knoxville v. Dossett to argue otherwise is not general criminal laws.” Id. at 196. The Court understands Dossett to be specific to the State’s authority over the courts, and particularly courts with criminal jurisdiction. This case is not applicable to locally operated school systems. The Court finds that the State Defendants violated the Home Rule Amendment when they enacted the ESA Act because it is local in form and effect, not of general application but rather applicable and designed to be applicable to two particular counties, and involves matters of local government proprietary capacity. Metro and Shelby County Government’s motion for summary judgment is granted and they are awarded a final judgment as to Count I of the complaint. Plaintiffs’ Remedies Metro and Shelby County Government seek declaratory and injunctive relief pursuant to the Declaratory Judgment Act, Tenn. Code Ann. § 29-14-101, et seq., and Tenn. Code Ann. § 13-121, which creates a cause of action “for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.” orders a permanent injunction preventing state officials from implementing and enforcing the ESA Act. Quoting from the Tennessee Small School Systems case: With full recognition and respect … for the distribution of powers in educational matters among the legislative, executive and judicial branches, it is nevertheless the responsibility of the courts to adjudicate contentions that actions taken by the Legislature and the executive fail to conform to the mandates of the Constitutions which constrain the activities of all three branches. That because of limited capabilities and competences the courts might encounter great difficulty in fashioning and then enforcing particularized remedies appropriate to repair unconstitutional action on the part of the Legislature or the executive is neither to be ignored on the one hand nor on the other to dictate judicial abstention in every case. 28 Document received by the TN Court of Appeals. The Court declares the ESA Act unconstitutional, unlawful, and unenforceable. The Court further Tennessee Small School Systems v. McWherter, 851 S.W.2d 139, 148 (Tenn. 1993) (quoting Board of Educ., Levittown Union Free School Dist. v. Nyquist, 57 N.Y.2d 27, 39, 453 N.U.S.2d 643, 648, 439 N.E.2d 359, 363 (1982)). THE OTHER PENDING MOTIONS Greater Praise Christian Academy Intervenor Defendants’ Motion to Dismiss In their motion to dismiss, these Intervenor Defendants assert that Plaintiff MNPS does not have standing to bring any claims pursuant to the ESA Act’s bar on a “local board of education” filing a lawsuit, at Tenn. Code Ann. § 49-6-2611(d), and that all claims of the other plaintiffs fail to state a claim upon which relief could be granted. Regarding the Metro School Board’s standing, based upon the reasoning set forth above, the motion is granted. These Intervenor Defendants’ motion to dismiss Count I regarding the Home Rule Amendment is denied. The Court is taking the remaining portion of the motion under advisement, declining to rule at this time pending further proceedings in this case based upon its grant of summary judgment, including declaratory and State Defendants’ Motion to Dismiss In their motion to dismiss, the State Defendants assert that Plaintiffs do not have standing for any of their claims, that their Equal Protection and Education Clause claims (Counts II and II) are not ripe for determination, and that Counts I and II do not state a claim upon which relief can be granted. Regarding the Metro School Board’s standing, based upon the reasoning set forth above, the motion is granted. The State Defendants’ motion to dismiss Count I regarding the Home Rule Amendment is denied. The Court is taking the remaining portion of the motion under advisement, declining to rule at this time pending further proceedings in this case based upon its grant of summary judgment, including declaratory and injunctive relief, on Count I. 29 Document received by the TN Court of Appeals. injunctive relief, on Count I. Bah, Diallo, Davis and Brumfield Intervenor Defendants’ Motion for Judgment on the Pleadings In their motion for a judgment on the pleadings, these Intervenor Defendants ask the Court to dismiss Plaintiffs’ claims and enter a judgment in their favor because the complaint fails to state a claim upon which relief can be granted. These Intervenor Defendants’ motion to dismiss Count I regarding the Home Rule Amendment is denied. The Court is taking the remaining portion of the motion under advisement, declining to rule at this time pending further proceedings in this case based upon its grant of summary judgment, including declaratory and injunctive relief, on Count I. PERMISSION GRANTED TO REQUEST INTERLOCUTORY APPEAL Tenn. R. App. P. 9(a) sets forth the standards a trial court, and if applicable, the Court of Appeals, is to consider in considering a motion for interlocutory appeal. They are: (1) the need to prevent irreparable injury, giving consideration to the severity of the potential injury, the ineffective; (2) the need to prevent needless, expensive, and protracted litigation, giving consideration to whether the challenged order would be a basis for reversal upon entry of a final judgment, the probability of reversal, and whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed; and (3) the need to develop a uniform body of law, giving consideration to the existence of inconsistent orders of other courts and whether the question presented by the challenged order will not otherwise be reviewable upon entry of final judgment. The Court is making the determination, without requiring the filing of a request for interlocutory appeal, that this is a matter appropriate for interlocutory and expedited appellate consideration. It is a matter of significant public interest that is extremely time sensitive, as 30 Document received by the TN Court of Appeals. probability of its occurrence, and the probability that review upon entry of final judgment will be discussed above. The granting of this relief is not intended to preclude any party from seeking extraordinary appeal pursuant to Tenn. R. App. P. 10 or Tenn. Code Ann. § 16-3-201(d). IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Plaintiff Metro School Board is DISMISSED as a party for lack of standing; IT IS FURTHER ORDERED, ADJUDGED and DECREED that the summary judgment motions filed by Metro and Shelby County Government is GRANTED and the State Defendants are in VIOLATION of the Home Rule Amendment of the Tennessee Constitution, Article XI, Section 9 by attempting to enact and enforce the ESA Act, Tenn. Code Ann. § 49-6-2601, et seq.; IT IS FURTHER ORDERED, ADJUDGED and DECREED that the State Defendants are ENJOINED from implementing and enforcing the ESA Act; IT IS FURTHER ORDERED, ADJUDGED and DECREED that the Defendants are immediately granted permission to seek interlocutory relief from the Court of Appeals pursuant to Tenn. R. App. P. 9(a); remain UNDER ADVISEMENT. It is so ORDERED. ANNE C. MARTIN CHANCELLOR, PART II cc: Robert E. Cooper, Jr. Lora Barkenbus Fox Allison L. Bussell Marlinee C. Iverson E. Lee Whitwell Stephanie A. Bergmeyer David Hodges 31 Document received by the TN Court of Appeals. IT IS FURTHER ORDERED, ADJUDGED and DECREED that all other pending motions 32 Document received by the TN Court of Appeals. Keith Neely Jason Coleman Braden H. Boucek Arif Panju Christopher M. Wood Thomas H. Castelli Stella Yarbrough Christine Bischoff Lindsey Rubinstein David G. Sciarra Wendy Lecker Jessica Levin Brian K. Kelsey Daniel R. Suhr Timothy Keller E-FILED 3/11/2020 6:38 PM CLERK & MASTER DAVIDSON CO. CHANCERY CT. IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) No. 20-0143-II ) TENNESSEE DEPARTMENT OF ) Chancellor Anne C. Martin EDUCATION, et al., ) ) Defendants, ) ) NATU BAH AND BUILGUISSA DIALLO; ) BRIA DAVIS AND STAR BRUMFIELD; ) GREATER PRAISE CHRISTIAN ACADEMY ) SEASONAL ENLIGHTENMENT ACADEMY ) INDEPENDENT SCHOOL, CIERA CALHOUN,) ALEXANDRIA MEDLIN, AND ) DAVID WILSON, SR. ) ) Intervenor-Defendants. ) ______________________________________________________________________________ STATE DEFENDANTS’ MOTION TO DISMISS ______________________________________________________________________________ Pursuant to Tenn. R. Civ. P. 12.02(6), Defendants Tennessee Department of Education, Commissioner Penny Schwinn, in her official capacity as Education Commissioner for the Tennessee Department of Education, and Governor Bill Lee, in his official capacity, (“State Defendants”) move to dismiss this case because Plaintiffs fail to state a claim upon which relief can be granted; this case is not justiciable and the Tennessee Education Savings Account Pilot Program, Tenn. Code Ann. §§ 49-6-2601 et seq. is constitutional. The State Defendants move to dismiss on the following grounds: 1) Plaintiffs lack standing; 2) the equity claim of Equal Document received by the TN Court of Appeals. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, METROPOLITAN NASHVILLE BOARD OF PUBLIC EDUCATION, and SHELBY COUNTY GOVERNMENT, Protection (Claim II) and Education Clause claim (Count III) are not ripe for determination; 3) the ESA program does not violate the Home Rule Amendment (Count I); and 4) the ESA program does not violate the Equal Protection Clause of the Tennessee Constitution (Count II). For the reasons stated, this Court should grant the State Defendants’ motion to dismiss. The State Defendants contemporaneously file a memorandum of law in support of this motion. NOTICE OF HEARING THIS MOTION IS SCHEDULED TO BE HEARD ON FRIDAY, MAY 22, 2020, AT 1:30 P.M. PURSUANT TO LOCAL RULE OF PRACTICE 26.04.(g), IF NO RESPONSE IS TIMELY FILED AND PERSONALLY SERVED, THE MOTION SHALL BE GRANTED AND COUNSEL OR PRO-SE LITIGANT NEED NOT APPEAR IN COURT AT THE TIME AND DATE SCHEDULED FOR THE HEARING. Respectfully Submitted, s/ Stephanie A. Bergmeyer Stephanie A. Bergmeyer, BPR # 27096 Jim Newsom, BPR # 6683 E. Ashley Carter, BPR # 27903 Matt R. Dowty, BPR # 32078 Shanell Tyler, BPR # 36232 Office of Tennessee Attorney General P.O. Box 20207 Nashville, Tennessee 37202-0207 Stephanie.Bergmeyer@ag.tn.gov (615) 741-6828 2 Document received by the TN Court of Appeals. HERBERT H. SLATERY III Attorney General and Reporter CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of Motion to Dismiss has been sent by mail on this 11th day of March, 2020, to: Lora Barkenbus Fox Allison L. Bussell Department of Law of the Metropolitan Government of Nashville and Davidson County Metropolitan Courthouse, Suite 108 P.O. Box 196300 Nashville, Tennessee 37219 Attorneys for Plaintiffs Metropolitan Government of Nashville and Davidson County and Metropolitan Nashville Board of Public Education Austin, Texas 78701 Attorney for Intervenor-Defendants Natu Bah and Builguissa Diallo David Hodges Keith Neely Institute for Justice 901 North Glebe Road, Suite 900 Arlington, Virginia 22203 Attorneys for Intervenor-Defendants Natu Bah and Builguissa Diallo Marlinee C. Iverson E. Lee Whitwell Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, Tennessee 38103 Attorneys for Plaintiff Shelby County Government Brian K. Kelsey Daniel R. Suhr Liberty Justice Center 190 S. LaSallee Street, Suite 1500 Chicago, Illinois 60603 Counsel for Intervenor-Defendants Greater Praise Christian Academy, Seasonal Enlightenment Academy Independent School, Ciera Calhoun, Alexandria Medlin, and David Wilson, Sr. Jason I. Coleman 7808 Oakfield Grove Brentwood, Tennessee 37027 Local Counsel for IntervenorDefendants Natu Bah and Builguissa Diallo Arif Panju Institute for Justice 816 Congress Avenue, Suite 960 s/ Stephanie A. Bergmeyer Stephanie A. Bergmeyer 3 Document received by the TN Court of Appeals. Braden H. Boucek Beacon Center P.O. Box 198646 Nashville, Tennessee 37219 Attorney for Intervenor-Defendants Bria Davis and Star Brumfield E-FILED 3/11/2020 9:44 PM CLERK & MASTER DAVIDSON CO. CHANCERY CT. IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) No. 20-0143-II ) TENNESSEE DEPARTMENT OF ) Chancellor Anne C. Martin EDUCATION, et al., ) ) Defendants, ) ) NATU BAH AND BUILGUISSA DIALLO; ) BRIA DAVIS AND STAR BRUMFIELD; ) GREATER PRAISE CHRISTIAN ACADEMY ) SEASONAL ENLIGHTENMENT ACADEMY ) INDEPENDENT SCHOOL, CIERA CALHOUN,) ALEXANDRIA MEDLIN, AND ) DAVID WILSON, SR. ) ) Intervenor-Defendants. ) ______________________________________________________________________________ STATE DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS ______________________________________________________________________________ Defendants Tennessee Department of Education, Commissioner Penny Schwinn, in her official capacity as Education Commissioner for the Tennessee Department of Education, and Governor Bill Lee, in his official capacity, (“State Defendants”), submit this memorandum of law in support of their Motion to Dismiss. This case should be dismissed because it is not justiciable and the Tennessee Education Savings Account Pilot Program is constitutional. The State Defendants move to dismiss on the following grounds: 1) Plaintiffs lack standing; 2) the equity claim of Equal Protection (Claim II) and Education Clause claim (Count III) are not ripe for Document received by the TN Court of Appeals. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, METROPOLITAN NASHVILLE BOARD OF PUBLIC EDUCATION, and SHELBY COUNTY GOVERNMENT, determination; 3) the ESA Program does not violate the Home Rule Amendment (Count I); and 4) the ESA Program does not violate the Equal Protection Clause of the Tennessee Constitution (Count II). STATEMENT OF THE CASE The General Assembly enacted the Tennessee Education Savings Account Pilot Program (“ESA Program”) to improve educational opportunities for children in the state who reside in Local Education Agencies (“LEAs”) that have “consistently had the lowest performing schools on a historical basis.” Tenn. Code Ann. §§ 49-6-2601, et seq.1 The ESA Program identifies an eligible student to be, among other factors, a Tennessee resident who: (C)(i) Is zoned to attend a school in an LEA, excluding the achievement school district (ASD), with ten (10) or more schools: (a) Identified as priority schools in 2015, as defined by the state’s accountability system pursuant to § 49-1-602; (c) Identified as priority schools in 2018, as defined by the state’s accountability system pursuant to § 49-1-602; or (ii) Is zoned to attend a school that is in the ASD on May 24, 2019. Id. § 49-6-2602(3)(C). A student in the ESA Program must enroll in a participating school and “[r]elease the LEA in which the participating student resides from all obligations to educate the participating student.” 1 The statement of legislative intent reads: The general assembly recognizes this state’s legitimate interest in the continual improvement of all LEAs and particularly the LEAs that have consistently had the lowest performing schools on a historical basis. Accordingly, it is the intent of this part to establish a pilot program that provides funding for access to additional educational options to students who reside in LEAs that have consistently and historically had the lowest performing schools. Tenn. Code Ann. § 49-6-2611(a)(1). 2 Document received by the TN Court of Appeals. (b) Among the bottom ten percent (10%) of schools, as identified by the department in 2017 in accordance with § 49-1-602(b)(3); and Id. §§ 49-6-2603(a)(1)-(3). The student is entitled to an allotment of funds that must be used for expenses such as tuition or textbooks required by a participating school. Id. § 49-6-2603(a)(4). The funds received by an eligible student “must be equal to the amount representing the per pupil state and local funds generated and required through the basic education program (“BEP”) for the LEA in which the participating student resides[ , ]” not to exceed the statewide average of BEP funds per pupil. Id. § 49-6-2605(a). “For the purpose of funding calculations, each participating student must be counted in the enrollment figures for the LEA in which the participating student resides.” Tenn. Code Ann. § 496-2605(b)(1). The BEP formula is “student-based such that each student entering or exiting an LEA shall impact generated funding.” Id. § 49-3-307(a)(11). The state shall provide funds generated by the BEP formula and the local government shall provide the local share of the BEP. Id. § 49-3-356(a). “The ESA funds for participating students must be subtracted from the state BEP funds otherwise payable to the LEA.” Id. § 49-6-2605(b)(1) (emphasis added). three years the Tennessee Department of Education (“Department”) shall administer a school improvement fund and shall disburse an annual grant to each LEA in an amount equal to the ESA amount for participating students under the program. Id. § 49-6-2605(b)(2). Plaintiffs Metropolitan Government of Nashville and Davidson County (“Metro”), Shelby County Government (“Shelby”), and the Metropolitan Nashville Board of Public Education (“Metro Board”) seek a declaratory judgment that the ESA Program is unconstitutional and injunctive relief from implementation and enforcement of the ESA Program. (Compl. 1, 43.) Metro and Shelby are responsible for adopting a budget for their public schools. (Compl. 3-4.) The Metro Board administers and controls the public school system of Metro. (Compl. 3, ¶ 7) 3 Document received by the TN Court of Appeals. Despite no obligation to educate a student participating in the ESA program, for the first (citing Metropolitan Charter § 9.01) (public schools shall be administered and controlled by the board)). The Metro Board is authorized to manage school funds. Metropolitan Charter § 9.03 (appendix). It adopts an operational school budget and has the power at any time to transfer funds within the major items of its budget. Metropolitan Charter §§ 9.04, 9.12. Plaintiffs filed this case before full implementation of the ESA Program. The Department has not released BEP funding figures for the 2020-2021 school year, and Plaintiffs do not know what “payments they will be required to make.”2 (Compl. 22, ¶ 111.) The number of students in their districts who will participate in the program is unknown. (Compl. 23, ¶ 116.) Plaintiffs’ allegations of fiscal impact are based on budget and funding estimates based on the fiscal year 2019-2020 and not 2020-2021—the year that the program begins. (Compl. 20-26.) STANDARD OF REVIEW A motion to dismiss for the failure to state a claim tests the sufficiency of the complaint. Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706, 710 (Tenn. 2003). The reviewing court must that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Id. A court’s “charge is to uphold the constitutionality of a statute wherever possible.” Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009). Evaluation “begin[s] with the presumption that an act of the General Assembly is constitutional.” Id. (internal quotations omitted). A court must “indulge every presumption and resolve every doubt in favor of the statute’s constitutionality.” 2 Rather than requiring a LEA to make payments, BEP funds are subtracted from those otherwise payable to the LEA. Tenn. Code Ann. § 49-6-2605(b)(1). Plaintiffs allege that for fiscal year 2019-2020, their per-pupil BEP funding requirement is higher than the combined statewide average. (Compl. 22, ¶112.) Thus, assuming arguendo this remains true for fiscal year 2020-2021, then there is an amount of BEP funds that will remain with the LEA and not follow the student to the ESA account. See Tenn. Code Ann. § 49-6-2605(a). 4 Document received by the TN Court of Appeals. accept the allegations in the complaint as true. Id. The court should grant the motion if “it appears Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003). Further, “[t]he presumption of constitutionality applies with even greater force when a party brings a facial challenge to the validity of a statute.” Waters, 291 S.W.3d at 882. In a facial challenge, “the challenger must establish that no set of circumstances exists under which the statute, as written, would be valid.” Id. ARGUMENT I. PLAINTIFFS DO NOT HAVE STANDING TO CHALLENGE THE ESA PROGRAM. The doctrine of standing ensures that “a litigant is entitled to pursue judicial relief as to a particular issue or cause of action.” City of Memphis v. Hargett, 414 S.W.3d 88, 97 (Tenn. 2013). A court must carefully examine “a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Id. There are two categories of standing: constitutional and non-constitutional. Id. at 98. Constitutional standing constitutional standing “focuses on considerations of judicial constraint, . . . such as whether a statute designates who may bring a cause of action.” Id. A. METRO AND SHELBY DO NOT HAVE CONSTITUTIONAL STANDING. To establish constitutional standing, a plaintiff must show: (1) an injury that is distinct and palpable; (2) a causal connection between the alleged injury and the challenged conduct; and (3) injury capable of being redressed by a favorable decision. Hargett, 414 S.W.3d. at 98. “[A] political subdivision of the state . . . ‘is limited to asserting rights that are its own.’” Id. at 100. A court must carefully examine “a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” ACLU of Tenn. v. Darnell, 195 S.W.3d 612, 620 (Tenn. 2006). 5 Document received by the TN Court of Appeals. must be established by a plaintiff to present a justiciable controversy. Id. On the other hand, non- The ESA Program applies to eligible students who are zoned to attend a school in certain LEAs with historically low-performing schools. Tenn. Code Ann. § 49-6-2602(3)(C). LEA is defined as “any county school system, city school system, special school district, unified school system, metropolitan school system or any other local public school system or school district created or authorized by the general assembly.” Id. § 49-1-103(2). Plaintiffs Metro and Shelby assert that they have a right at issue because they are responsible for adopting a budget for their public schools. (Compl. 3-4.) Although they allege that they are responsible for administering schools in their LEAs (Compl. 3)3, the law clearly places that obligation with the school board. While a county school system and a county government may share budgetary responsibilities, “[u]nder Tennessee law, the school systems are separate from the county governments.” Rollins v. Wilson Cnty. Gov’t, 154 F.3d 626, 630 (6th Cir. 1998), aff’g 967 F. Supp. 990, 996 (M.D. Tenn. 1997) (“[F]inancial connections between a local school system and local government does not detract from the essentially separate functions board of education; and (2) [a] director of schools.” Tenn. Code Ann. § 49-1-102(c). It is the local board of education—and not the county government—that has the duties of managing and controlling public schools. Id. § 49-2-203. For instance, the Metro Board administers and controls the public school system. (Compl. 3, ¶ 7) (citing Metropolitan Charter § 9.01 (public schools shall be administered and controlled by the board)).4 The Metro Board is authorized to manage school funds. Metropolitan Charter § 9.03. “[C]ourts are not required to accept as true assertions that are merely legal arguments or ‘legal conclusions’ couched as facts.” Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 427 (Tenn. 2011). 3 “Courts resolving a motion to dismiss may consider items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case . . . without converting the motion into one for summary judgment.” Stephens v. Home Depot U.S.A., Inc., 529 S.W.3d 63, 74 (Tenn. Ct. App. 2016) (quotation and citation omitted). 4 6 Document received by the TN Court of Appeals. of these two entities.”). “Any local public school system shall be administered by: (1) [a] local It adopts an operational school budget and has the power at any time to transfer funds within the major items of its budget. Metropolitan Charter §§ 9.04, 9.12. Metro and Shelby do not have standing because they have failed to demonstrate a distinct and palpable injury. Their complaint alleges that the state’s BEP funds will follow the student from the LEA to the student’s ESA account, and that the public school systems will have the same operating costs with less funds. (See Compl. 25, at ¶ 120; 29, at ¶ 141-42). Thus, the Complaint does not assert an injury to the Metro or Shelby governments—only to the LEAs (i.e., the county school systems). (Id.) Any argument that the ESA Program’s application to certain LEAs is unconstitutional is not for either Metro or Shelby to make because the county school system is distinct and separate from the county government. Therefore, Metro and Shelby do not have standing to assert constitutional claims because the ESA Program does not affect rights of their own. The Board lacks non-constitutional standing because it has no authority to challenge the constitutionality of the ESA Program. Tenn. Code Ann. § 49-6-2611(d). Local boards of education are creatures of the state legislature and, accordingly, political subdivisions of the State. See Tenn. Code Ann. § 49-2-201 (providing for local school boards). “It is a general rule that political subdivisions, as creatures of the state, lack standing to question the constitutionality of state statutes or governmental activity, particularly where it relates to governmental powers and duties.” 16 C.J.S., Constitutional Law, § 177 (internal footnote omitted) (2020). This rule is “based on a belief that political subdivisions of the state exist only for the convenient administration of the state government and are created to carry out the will of the state.” Id.; see also Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 790 (Iowa 1994) (“school districts, as 7 Document received by the TN Court of Appeals. B. THE METRO BOARD IS A POLITICAL SUBDIVISION OF THE STATE WITH NO AUTHORITY TO SUE DEFENDANTS. political subdivisions of the state, lack standing to mount a constitutional attack against a state statute”). The foregoing rule is consistent with the fact that the power of local governments is defined by the General Assembly. In Tennessee, “local governments have no inherent right to autonomous self-government.” S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706, 712 (Tenn. 2001). “[L]ocal governments . . . possess only those powers and authority as the General Assembly has deemed appropriate to confer upon them.”5 Id. The state legislature’s power over local boards of education is absolute. It derives from the Tennessee Constitution, which “grants the General Assembly plenary authority to structure and provide for local government,” as well as “plenary and exclusive authority” to provide for Tennessee’s schools. Id. at 715. The state legislature can abolish local boards entirely or enlarge their responsibilities “‘without the danger of encountering constitutional difficulties.’” Id. (quoting Bd. of Educ. of Memphis City Sch. v. Shelby Cnty, 292 S.W. 462, 464 (Tenn. 1927)). policies. See Tenn. Code Ann. § 49-2-203 (setting forth the powers and duties of local boards). The purpose of local boards is to carry out the directives of the General Assembly, not to challenge what those directives should be. Indeed, the General Assembly expressly stated that “[a] local board of education does not have authority to assert a cause of action, intervene in any cause of action, or provide funding for any cause of action challenging the legality of this part [the ESA Program].” Tenn. Code Ann. § 49-6-2611(d). Therefore, the Board does not have standing in this lawsuit. 5 This same argument was made by the Metro Board in a motion to dismiss a case brought by a charter school. (See Mem. of Law, Project Reflect Inc., et al. v. Metro. Nashville Bd. of Public Educ., et al., No. 3:13-cv-00341, ECF No. 13 at p. 10, 2013 WL 12371284 (M.D. Tenn. filed Apr. 30, 2013) (charter school’s “role is analogous to that of a municipality created by a state, and it lacks standing to bring a Fourteenth Amendment claim against its creator[ . ]”). 8 Document received by the TN Court of Appeals. The General Assembly has not conferred authority on local boards to challenge state II. PLAINTIFFS’ EQUITY CLAIM (COUNT II) AND EDUCATION CLAUSE CLAIM (COUNT III) ARE NOT RIPE FOR DETERMINATION AND SHOULD BE DISMISSED. The justiciable doctrine of ripeness “requires a court to answer the question of whether the dispute has matured to the point that it warrants a judicial decision.” Clark v. Cain, 479 S.W.3d 830, 831-32 (Tenn. 2015) (quoting West v. Schofield, 468 S.W.3d 482, 490 (Tenn. 2015)). “[I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Id. “The central concern of the ripeness doctrine is whether the case involves uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all.” Id. at 831-32. “[A] declaratory judgment action cannot be used by a court to decide a theoretical question, . . . or allay fears as to what may occur in the future[.]” West, 468 S.W.3d at 490. “Courts typically engage in a two-part analysis, evaluating (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Clark, 479 S.W.3d at 832. Education Clause through an impact on either funding or educational opportunities are unsupported and premature.6 The impact of the ESA Program to Plaintiffs—if any—is unknown. To participate in the program, an eligible student must apply, satisfy a Department determination of eligibility, and enroll in a participating school. See Tenn. Code Ann. §§ 49-62603(a)(1)-(3), 49-6-2604(a). The maximum number of participating students must not exceed 5,000 students in the first year with a gradual increase up to 15,000 students in the fifth year. Id. § 49-6-2604(c). 6 In addition, the Education Clause does not mandate what educational opportunities must be provided to students or the level of funding that must be provided to public schools. This Court lacks jurisdiction over any adequacy of state funding claim. See Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 202-03 (Tenn. 2009). 9 Document received by the TN Court of Appeals. Plaintiffs’ allegations that the ESA Program violates the Equal Protection Clause or The funds received by an eligible student “must be equal to the amount representing the per pupil state and local funds generated and required through the basic education program (BEP) for the LEA in which the participating student resides[ , ]” not to exceed the statewide average of BEP funds per pupil. Id. § 49-6-2605(a). For the first three years, the LEAs will receive a grant for school improvement funds in an amount equal to the ESA amount for participating students under the program. Id. § 49-6-2605(b)(2). Despite receiving these funds equal to the ESA amount for participating students, the LEAs will be released from all obligation of educating the participating students. Id. §§ 49-6-2603(a)(3). Plaintiffs have brought this case before the Department has released BEP figures for the 2020-2021 school year, and Plaintiffs do not know what “payments they will be required to make.” (Compl. 22, ¶ 111.) The number of students in each LEA who will participate in the program is also unknown. (Compl. 23, ¶ 116.) Plaintiffs’ allegations of fiscal impact are assumptions based on budget and funding estimates for fiscal year 2019-2020 and not 2020-2021—the year that the program is insufficient, that operational costs will increase, and that there will be testing expenses incurred by each LEA are mere speculation7. (Compl. 26-32.) Although some funds for a participating student will go to an ESA account instead of the LEA, the LEA is released from its obligations to educate the student while participating in the program. Tenn. Code Ann. §§ 49-6-2603(a)(3), 49-6-2605. The maximum annual allocation to an ESA account cannot exceed the statewide average of required state and local BEP allocations per pupil. Id. § 49-6-2605(a). If the BEP allocation per pupil in the LEAs affected by the program 7 The ESA program does not require a LEA to pay for testing expenses. See Tenn. Code Ann. § 49-6-2606. For students enrolled full-time in a participating school, the school shall annually administer the required tests. Id. § 496-2606(a)(2). For students who are not enrolled full-time in a participating school, either the parent or student must ensure the student takes the required tests. Id. § 49-6-2606(a)(3). 10 Document received by the TN Court of Appeals. program begins. (Compl. 20-26.) Likewise, Plaintiffs’ allegations that the three-year grant will be more than the statewide average (Compl. 22, ¶ 122), then there is an amount of BEP funds that will remain with the LEA and not follow the student to the ESA account. See Tenn. Code Ann. § 49-6-2605(a). In other words, the LEA will keep some BEP funds associated with a participating student without the corresponding obligation to educate the student. Moreover, for the initial three fiscal years of the ESA Program, an annual grant in an amount equal to the ESA account amount shall be disbursed to the LEA for a school improvement fund. Tenn. Code Ann. § 49-6-2605(b)(2)(A). For the LEAs at issue, the ESA Program is more likely a windfall. The LEAs can expect to receive more money per student they are educating than they would in the absence of the ESA Program. The ESA Program has not been implemented. Under the ESA Program, the LEAs will continue to receive the full allotment of BEP funds for participating students for the first three years and may continue to receive additional BEP funds for participating students each year after that despite not having any obligation to educate the participating students. Any allegation that equity claim under either the Equal Protection Clause (Count II) or the Education Clause (Count III) should be dismissed. III. BECAUSE THE ESA PROGRAM IS NEITHER LOCAL NOR APPLICABLE TO A PARTICULAR COUNTY OR MUNICIPALITY, IT DOES NOT VIOLATE THE HOME RULE AMENDMENT; COUNT I SHOULD BE DISMISSED. The Tennessee Constitution prohibits legislation that is “private or local in form or effect [and] applicable to a particular county or municipality” unless it also receives local approval. Tenn. Const, art. XI, § 9. The “Home Rule Amendment,” is intended to “strengthen local selfgovernment.” Civil Serv. Merit Bd. v. Burson, 816 S.W.2d 725, 728 (Tenn. 1991). Indeed, “[t]he 11 Document received by the TN Court of Appeals. there is an inequitable distribution of funds is speculative and not ripe for review. Therefore, any whole purpose of the Home Rule Amendment [is] to vest control of local affairs in local governments.” Farris v. Blanton, 528 S.W.2d 549, 551 (Tenn. 1975) (emphasis added). The ESA Program identifies an eligible student to be one zoned within certain LEAs or the Achievement School District (“ASD”). Tenn. Code Ann. § 49-6-2602(3)(C). The program does not violate the Home Rule Amendment because: (A) it is directed at a state matter that is not “local” and is instead squarely within the purview of the General Assembly; and (B) it is not applicable to a county or municipality. A. THE ESA PROGRAM IS NOT “LOCAL” IN VIOLATION OF THE HOME RULE AMENDMENT. The Tennessee Supreme Court has held that statutes pertaining to a subject matter within the plenary power of the General Assembly do not fall within the restrictions of the Home Rule Amendment. City of Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 196 (Tenn. 1984); State ex rel. Cheek v. Rollings, 202 Tenn. 608 (1957). Such statutes do not implicate the Home Rule In Dossett, the plaintiff city challenged a statute that removed jurisdiction of state criminal offenses from the municipal courts of several counties without local approval. 672 S.W.2d at 194. The city wanted its municipal courts to continue to dispose of violations of municipal ordinances and criminal offenses committed in the city or municipality. Id. Contrary to the plaintiff city’s assertion that the act was local, the Court stated: “it must be recalled, however, that the subject matter of the legislation is not, strictly speaking, the government of the municipality.” Id. at 195. The Home Rule Amendment provides protection “with respect to local matters, but not with respect to the general judicial power of the state nor with respect to jurisdiction over violation of the state’s general criminal laws.” Id. at 196. But see Lawler v. McCanless, 417 S.W.2d 548, 551 (Tenn. 1967). 12 Document received by the TN Court of Appeals. Amendment’s protection of local affairs. Id. A state law discontinuing all meetings of the circuit and chancery court of one county was also not subject to the Home Rule Amendment. Cheek, 202 Tenn. at 611, 618–19. The principal question addressed by the Court was “whether Section I, Article VI of the Constitution of Tennessee, which provides for the vesting of the judicial power in one supreme court and in such circuit, chancery and other inferior courts as the legislature shall from time to time, ordain to establish, is to be construed as limited or curtailed specially in the establishment of circuit or chancery courts,” by the Home Rule Amendment. Id. at 610. “It is true that this Act ignores the home rule amendment but we are of opinion that” inclusion of home rule provisions was not necessary. Id. at 618. Because the state Constitution gives the General Assembly the right to establish courts, it concomitantly gives the General Assembly the right to abolish such courts at its discretion. Id. As a result, the statute that only applied to one county was not “local” in violation of the Home Rule Amendment. Id. Likewise, the ESA Program does not violate the Home Rule Amendment because it is a function. See, e.g., S. Constructors, 58 S.W.3d at 715; State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 221 (Tenn. 1988) (“[n]ot only does Article XI, § 12, of the Tennessee Constitution expressly require the General Assembly to ‘provide for the maintenance, support and eligibility standards of a system of free public schools,’ but this Court has recognized for many years that education is a State function.”). “[E]ducation, is, at core, a state rather than a county or municipal function.” Rollins v. Wilson Cnty. Gov’t, 967 F. Supp. 990, 996 (M.D. Tenn. 1997). It is an “accepted fact that public education in Tennessee rests upon the solid foundation of State authority to the exclusion of county and municipal government.” Cagle v. McCanless, 285 S.W.2d 118, 122 (Tenn. 1955). “The General Assembly has enacted a comprehensive and detailed statutory scheme 13 Document received by the TN Court of Appeals. matter of state education policy. Tennessee courts have repeatedly held that education is a state concerning education in this State, compiled in Title 49 of the Tennessee Code and comprising an entire volume of that code.” Weaver, 756 S.W.2d at 221. The Tennessee Supreme Court has recognized “the legislature’s wide discretion in fashioning a statewide system that meets constitutional requirements.” City of Humboldt v. McKnight, No. M2002-02639-COA-R3CV, 2005 WL 2051284, at *13 (Tenn. Ct. App. Aug. 25, 2005) (citing Tenn. Small Schools v. McWherter, 851 S.W.2d 139, 156 (Tenn. 1993)). Under the Education Clause, “[t]he General Assembly has extensive power and discretion regarding the methods and means used to provide the public school system.” Id. at *14. The General Assembly’s decision to offer an alternative education program to students zoned for its historically low-performing LEAs is not a “local affair,” but a state matter. To apply the Home Rule Amendment here would improperly give local voters the right to veto a matter over which the Legislature has been given exclusive, plenary authority. Cf. Cheek, 308 S.W.2d at 397. Therefore, the ESA Program does not require local approval and is not otherwise limited by the B. THE ESA PROGRAM IS NOT APPLICABLE TO A COUNTY OR MUNICIPALITY. The Home Rule Amendment limits the General Assembly’s power to pass laws affecting the local affairs of a county or municipality. In pertinent part, the Home Rule Amendment states: [A]ny act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected. Tenn. Const. art. XI, § 9 (emphasis added). By its express language, an act must be applicable to either a county or municipality to fall under the Home Rule Amendment provisions. 14 Document received by the TN Court of Appeals. Home Rule Amendment. For instance, the Home Rule Amendment does not apply to special school districts. Perritt v. Carter, 325 S.W.2d 233, 234 (Tenn. 1959). In Perritt, the plaintiffs challenged the constitutionality of a private act that sought to enlarge the Huntington Special School District within Carroll County. Id. The plaintiffs, a group of Carroll County residents, argued that the act’s local-approval provision did not meet the requirements of the Home Rule Amendment. Id. The Court concluded that the provision was included “because of the erroneous impression that the District might come within the Home Rule Constitutional Amendment.” Id. The Court held “that the Home Rule Amendment is not broad enough to cover special school districts.” Id. The Court elided the local-approval provision and upheld the private act. Id. Likewise, a city sanitary district does not fall under the Home Rule Amendment’s provisions. Fountain City Sanitary Dist. v. Knox Cnty., 308 S.W.2d 482, 484 (Tenn. 1957). The Court considered a statute that authorized a sanitary district to expand the area in which it provided water, sewage, garbage disposal, and fire protection services in Knox County. Id. at 483. The municipality within the meaning of the Home Rule Amendment. Id. at 484-85. Here, the ESA Program applies to LEAs and not to counties or municipalities. Tenn. Code Ann. § 49-6-2602(3)(C). And the LEAs, not counties, are the instruments through which the General Assembly provides educational opportunities in Tennessee. McKnight, 2005 WL 2051284, at *14. LEAs may vary in name, method of creation, organization, or otherwise. Id. at *15. The General Assembly’s broad definition of LEA “to mean any system authorized by the legislature to deliver education” means that “the county has no role unless and to the extent that it is actually operating a school system.” Id. at *15-16 (emphasis in original). “Even then, it is the 15 Document received by the TN Court of Appeals. Court held that the local approval provision was unnecessary because the district was not a county school system, not the county government itself, that is accountable to the state for education.” Id. at *16. The Shelby County School District demonstrates why the Home Rule Amendment is inapplicable to LEAs. The district served by the Shelby County Board of Education encompasses unincorporated areas of Shelby County together with the City of Memphis, but not all portions of Shelby County. Six other Shelby County municipalities have formed their own independent school districts. See Kelley v. Shelby Cnty. Bd. of Educ., 751 F. App’x 650, 652 (6th Cir. 2018). Plaintiffs contend that the ESA Program must be conditioned on local approval. But the Home Rule Amendment contemplates approval by the legislative body or citizens of the affected “county or municipality.” Tenn. Const. art. XI, § 9. Such approval would not be feasible here because neither the county nor the city is coterminous with the affected school district: any vote of the citizens of the county would be overinclusive, while a vote of the citizens of the affected municipality would be underinclusive. As a result, neither local approval by the legislative body basic democratic principle of “one person, one vote.” See generally Bd. of Cnty. Comm’rs of Shelby Cnty., Tenn. v. Burson, 144 F.3d 244, 247-48 (6th Cir. 1997). In sum, the ESA Program is not applicable to a county or municipality such that the protection of the Home Rule Amendment could properly be invoked. Moreover, the program governs a matter of state concern and not a local affair. Therefore, the ESA Program does not violate the Home Rule Amendment and Count I should be dismissed. 16 Document received by the TN Court of Appeals. or citizens of Shelby County nor of any municipality therein would appear to comport with the IV. THE ESA PROGRAM DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE TENNESSEE CONSTITUTION AND SO COUNT II SHOULD BE DISMISSED. The right to equal protection of the laws is guaranteed by Tenn. Const. art. I, § 8, and art. XI, § 8. McClay v. Airport Man. Servs., 2020 WL 915980, *5 (Tenn. Feb. 26, 2020). These constitutional provisions “confer essentially the same protection” as the Fourteenth Amendment to the Constitution of the United States. Id. (citing Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 152 (Tenn. 1993)). “The concept of equal protection espoused by the federal and our state constitutions guarantees that ‘all persons similarly circumstanced shall be treated alike.”’ Id. (citing Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). The protection afforded by the equal-protection clause is dependent “upon the nature of the right asserted or the class of persons affected.” Gallaher v. Elam, 104 S.W.3d 455, 460 (Tenn. 2003). Courts are to apply strict-scrutiny review only if the legislative classification “interferes class.’” Newton v. Cox, 878 S.W.2d 105, 109 (Tenn. 1994) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16 (1973)). Heightened scrutiny is appropriate if the legislative classification involves “a quasi-suspect class, such as gender or illegitimacy.” For all other legislative classifications, courts are to apply rational-basis review. See Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 518 (Tenn. 2005), as amended on reh’g in part (Feb. 21, 2006). Rational-basis review is the appropriate standard for addressing the ESA Program. Under the rational-basis test, “the challenged classifications [must] have a reasonable relationship to a legitimate state interest.” Gallaher, 104 S.W.3d at 461. “[A] statute may discriminate in favor of a certain class, as long as the discrimination is founded upon a reasonable distinction or difference 17 Document received by the TN Court of Appeals. with the exercise of a ‘fundamental right’ or operates to the peculiar disadvantage of a ‘suspect in state policy.” Id. (citing Castlewood, Inc. v. Anderson Cnty., 969 S.W.2d 908, 910 (Tenn. 1998)). A legislative classification must be upheld “if some reasonable basis can be found for the classification, or if any state of facts may reasonably be conceived to justify it.” Harrison v. Schrader, 569 S.W.2d 822, 825 (Tenn. 1978). The ESA Program is consistent with the state’s goal to provide educational opportunities to children in the state. See Tenn. Const., art. XI, § 12. In furtherance of its goal, the state has an education accountability system in place to track how state schools perform in providing educational services to children in the state. Tenn. Code Ann. §§ 49-1-602, et seq. The state reviews a school’s performance to determine if the school’s educational services meet state standards. Id. Priority schools include the bottom 5 percent of schools in performance and high schools failing to graduate one-third or more of their students. Id. § 49-1-602(b)(2). Priority schools are subject to corrective action and/or intervention by the Department, including placement in the ASD.8 Id. § 49-1-602. “consistently had the lowest performing schools on a historical basis.” Tenn. Code Ann. §§ 49-62601, et seq. Eligible students are zoned to attend a school: (1) in a LEA with 10 or more schools identified as priority schools in 2015, among the bottom 10% of schools in 2017, or identified as priority schools in 2018; or (2) in the ASD on May 24, 2019. Tenn. Code Ann. § 49-6-2602(3)(C). The State has a legitimate interest in the continual improvement of educational services to children in the state. See Tenn. Code Ann. § 49-6-2611. A rational basis exists for implementing the ESA Program because providing additional educational opportunities for children in historically low-performing schools may improve educational services to students in the state. It 8 In fact, the LEA will continue to be accountable for the amount equal to BEP funds per student for students enrolled in the ASD school. See Tenn. Code Ann. § 49-1-614(d)(1). 18 Document received by the TN Court of Appeals. The ESA Program affords additional opportunity to residents in LEAs that have is also conceivable that many students who are zoned to attend a school in a LEA with 10 or more schools meeting the criteria for the ESA Program will, in the absence of the ESA Program, attend a low-performance school throughout their kindergarten through grade 12 education and could benefit from the availability of educational alternatives. Even under a heightened level of scrutiny, these same reasons support that the ESA Program promotes a compelling state interest. Plaintiffs’ equal protection challenge to the ESA Program fails as a matter of law. Disagreement with the state’s chosen option to improve educational services does not constitute a showing that there is no rational basis for the program. CONCLUSION For the reasons stated, the Court should grant Defendants’ motion to dismiss. Respectfully Submitted, s/ Stephanie A. Bergmeyer Stephanie A. Bergmeyer, BPR # 27096 Jim Newsom, BPR # 6683 E. Ashley Carter, BPR # 27903 Shanell Tyler, BPR # 36232 Matt R. Dowty, BPR # 32078 Office of Tennessee Attorney General P.O. Box 20207 Nashville, Tennessee 37202-0207 Stephanie.Bergmeyer@ag.tn.gov (615) 741-6828 19 Document received by the TN Court of Appeals. HERBERT H. SLATERY III Attorney General and Reporter CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of Memorandum has been sent by mail on this 11th day of March, 2020, to: Lora Barkenbus Fox Allison L. Bussell Department of Law of the Metropolitan Government of Nashville and Davidson County Metropolitan Courthouse, Suite 108 P.O. Box 196300 Nashville, Tennessee 37219 Attorneys for Plaintiffs Metropolitan Government of Nashville and Davidson County and Metropolitan Nashville Board of Public Education Austin, Texas 78701 Attorney for Intervenor-Defendants Natu Bah and Builguissa Diallo David Hodges Keith Neely Institute for Justice 901 North Glebe Road, Suite 900 Arlington, Virginia 22203 Attorneys for Intervenor-Defendants Natu Bah and Builguissa Diallo Marlinee C. Iverson E. Lee Whitwell Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, Tennessee 38103 Attorneys for Plaintiff Shelby County Government Brian K. Kelsey Daniel R. Suhr Liberty Justice Center 190 S. LaSallee Street, Suite 1500 Chicago, Illinois 60603 Counsel for Intervenor-Defendants Greater Praise Christian Academy, Seasonal Enlightenment Academy Independent School, Ciera Calhoun, Alexandria Medlin, and David Wilson, Sr. Jason I. Coleman 7808 Oakfield Grove Brentwood, Tennessee 37027 Local Counsel for IntervenorDefendants Natu Bah and Builguissa Diallo Arif Panju Institute for Justice 816 Congress Avenue, Suite 960 s/ Stephanie A. Bergmeyer Stephanie A. Bergmeyer 20 Document received by the TN Court of Appeals. Braden H. Boucek Beacon Center P.O. Box 198646 Nashville, Tennessee 37219 Attorney for Intervenor-Defendants Bria Davis and Star Brumfield APPENDIX 1. Bd. of Cnty. Comm’rs of Shelby Cnty., Tenn. v. Burson, 121 F.3d 244 (6th Cir. 1997) 2. City of Humboldt v. McKnight, No. M2002-02639-COA-R3CV, 2005 WL 2051284 (Tenn. Ct. App. Aug. 25, 2005) 3. Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 790 (Iowa 1994) 4. Kelley v. Shelby Cnty. Bd. of Educ., 751 F. App’x 650 (6th Cir. 2018) 5. McClay v. Airport Man. Servs., 2020 WL 915980 (Tenn. Feb. 26, 2020) 6. Project Reflect Inc., et al. v. Metro. Nashville Bd. of Public Educ., et al., No. 3:13-cv-00341, ECF No. 13, 2013 WL 12371284 (M.D. Tenn. filed Apr. 30, 2013) 7. Rollins v. Wilson Cnty. Gov’t, 967 F. Supp. 990 (M.D. Tenn. 1997) 8. Rollins v. Wilson Cnty. Gov’t, 154 F.3d 626 (6th Cir. 1998) 21 Document received by the TN Court of Appeals. 9. Metropolitan Government of Nashville and Davidson County, Tennessee, Charter art. 9 Board of County Com'rs of Shelby County, Tenn. v. Burson, 121 F.3d 244 (1997) 120 Ed. Law Rep. 420, 1997 Fed.App. 0228P BOARD OF COUNTY COMMISSIONERS OF SHELBY COUNTY, TENNESSEE, et al., Plaintiffs–Appellees, Shelby County Board of Education; Herman Cox, et al., Intervenor Plaintiffs–Appellees, v. Charles W. BURSON, Attorney General & Reporter of Tennessee, Riley C. Darnell, Secretary of State of Tennessee; Brook Thompson, Election Coordinator of the State of Tennessee; and the Shelby County Election Commission, including O.C. Pleasant, Jr., Chair, David Lillard, Secretary, Gregory Duckett, Member, Anthony King, Member, and Myra Stiles, Member, Defendants–Appellants. No. 96–6278. Argued April 29, 1997. Decided July 29, 1997. Synopsis County and board of county commissioners challenged constitutionality of election plan for county board of education. The United States District Court for the Western District of Tennessee, Jerome Turner, J., concluded that Tennessee election provisions, as applied, violated county and county commissioners' rights, and defendants appealed. The Court of Appeals, Alan E. Norris, Circuit Judge, held that: (1) relevant geopolitical entity for required one person, one vote analysis was the school district, not the entire county, and (2) where city voters did not have financial interest in county school system, plan placed overwhelming majority of ballots in hands of non-resident city voters, and number of actual city residents who attended county schools was minimal, countywide election of local school board members under Tennessee law was unconstitutional as applied. Judgment affirmed. Rehearing Denied, 1997 WL 631323. Attorneys and Law Firms *245 Brian L. Kuhn (briefed), Farris, Mathews, Gilman, Branan & Hellen, John L. Ryder (argued and briefed), Apperson, Crump, Duzane & Maxwell, Donnie E. Wilson (briefed), Shelby County Attorney's Office, Memphis, TN, for Board of County Commissioners of Shelby County, Tennessee, County of Shelby. Richard L. Winchester, Jr. (argued and briefed), R. Lee Winchester (briefed), The Winchester Law Firm, for Shelby County Board of Education, Rubye Dobbins, Tom Brooks, Homer Bunker, Dennis F. Fields, Cheryl Hall, Karen Hill, Carolyn Bobo. Lewis R. Donelson, III (argued and briefed), Baker, Donelson, Bearman & Caldwell, Robert M. Glover, Memphis, TN, for Herman Cox, Gene Fletcher, Bobby Flaherty, Sharon Goldsworthy, George Harvell, Jr., George Horton. Clifford D. Pierce, Jr. (argued), Wyatt, Tarrant & Combs, Memphis, TN, for Amici Curiae. Michael W. Catalano, Deputy Attorney Gen., Office of the Attorney General, General *246 Civil Division, Rachel L. Steele, Asst. Atty. General (argued and briefed), Office of the Attorney General of Tennessee, Michael E. Moore, Office of the Attorney General, Nashville, TN, for Defendants– Appellants. Before: NELSON and NORRIS, Circuit Judges; COHN, District Judge. * Opinion ALAN E. NORRIS, Circuit Judge. Defendants appeal from the judgment of the district court holding that the election provisions of Tennessee's Education Improvement Act (“EIA”), as applied in Shelby County, Tennessee, violate plaintiffs' rights under the Fourteenth Amendment to the United States Constitution. This court has recently resolved a similar challenge to the EIA's election provisions in Duncan v. Coffee County, 69 F.3d 88 (6th Cir.1995), and our decision in that case controls the resolution of this appeal. While we held in Duncan that the EIA's election provisions were not unconstitutional as applied in Coffee County, application of the test established in that case leads us to conclude that the district court was correct in © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Document received by the TN Court of Appeals. 121 F.3d 244 United States Court of Appeals, Sixth Circuit. Board of County Com'rs of Shelby County, Tenn. v. Burson, 121 F.3d 244 (1997) 120 Ed. Law Rep. 420, 1997 Fed.App. 0228P I. Shelby County, Tennessee, is comprised of two separate and distinct public school districts: the Memphis City Schools and the Shelby County School District. The Memphis City Schools provide elementary and secondary education to students residing within the City of Memphis, 1 while the Shelby County School District does the same for students residing in all of the parts of Shelby County which are not within Memphis city limits. Until recently, the members of the Shelby County Board of Education were appointed by the Board of County Commissioners of Shelby County. According to the parties, the Tennessee Constitution, as construed by the state's highest court, requires that all popularly elected county officials, including county school board members, be elected by all voters within the county. See Tenn. Const. Article XI, § 17; Southern v. Beeler, 183 Tenn. 272, 195 S.W.2d 857, 865 (1946). In addition, the Tennessee legislature, by adopting the EIA, mandated that “[n]otwithstanding any other law to the contrary, there shall be a board of education elected by the people.” Tenn.Code Ann. § 49–2–201. In order to comply with both the legislative mandate and the Tennessee Supreme Court's interpretation of the state's constitution, the Board of County Commissioners of Shelby County enacted a plan (“Plan C”) which provided that members of the Shelby County Board of Education be elected from seven single member districts throughout the entire county. As a result, residents of the City of Memphis may vote in the Shelby County Board of Education elections even though their children attend school in a different system. According to the 1990 United States Census, 826,330 people reside in Shelby County. Of that number, 618,289 reside within the City of Memphis, thus accounting for 74.8% of the county's population. 2 This overwhelming numerical dominance of Memphis residents over nonMemphis residents in the county is reflected in the make-up of the voting districts in Plan C. The percentage of Memphis residents residing in each district is as follows: *247 Thus, under Plan C, Memphis residents form a substantial voting majority in six out of the seven voting districts. 3 On May 3, 1996, Shelby County and the Board of County Commissioners (“plaintiffs”) filed a complaint in federal district court challenging the constitutionality of Plan C and seeking declaratory and injunctive relief. They maintained that Plan C violates the one person, one vote principle embodied in the Equal Protection Clause of the Fourteenth Amendment, in that it would unconstitutionally dilute the votes of those residents served by the Shelby County School District, leaving them “with little or no chance to control their own school board.” A group of small town mayors from the area served by the Shelby County School District and the Shelby County Board of Education intervened, asserting essentially the same constitutional objections to Plan C as the plaintiffs. Relying primarily upon our decision in Duncan, the district court concluded that Plan C was unconstitutional, and enjoined its implementation. This appeal followed. We review the district court's findings of fact for clear error, and its conclusions of law de novo. II. In Duncan, voters in a rural county school district challenged the election provisions of the EIA, asserting that the countywide election of local school boards, as applied in Coffee County, violated the Fourteenth Amendment and the one person, one vote principle. Coffee County is divided into three separate school districts. The first two districts include the residents of the cities of Tullahoma and Manchester. The third district consists of those people who live in the remaining areas of the county outside the two cities (“Rural Coffee County”). Duncan, 69 F.3d at 90. Under an election plan adopted in response to the EIA, the Coffee County Commission reapportioned its school board. Of the seven available seats, two were completely within the City of Tullahoma; two were mixed between the City of Tullahoma and Rural Coffee County; one was totally within Manchester; one was mixed between Manchester and Rural Coffee County; and one was solely within Rural Coffee County. Id. at 91. The residents of Rural Coffee County claimed that this arrangement unconstitutionally diluted their votes in Rural Coffee County School District elections. After noting that neither the United States Supreme Court nor this court had ever directly addressed the issue presented in Duncan, we noted there that the Supreme Court's extensive voting rights precedents nevertheless set forth a number of basic principles to guide our analysis. Id. at 92. “First, ‘the conception of political equality from the Declaration © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Document received by the TN Court of Appeals. concluding that the election provisions are unconstitutional as applied in Shelby County. Accordingly, we affirm. Board of County Com'rs of Shelby County, Tenn. v. Burson, 121 F.3d 244 (1997) 120 Ed. Law Rep. 420, 1997 Fed.App. 0228P Relying upon this latter principle, Coffee County contended that it was required to *248 include residents of Tullahoma in the elections at issue, because the “relevant geopolitical entity” for purposes of the one person, one vote analysis was all of Coffee County and because neither the county nor the state had a compelling state interest in excluding them. We held, however, that the relevant geopolitical entity for purposes of the one person, one vote analysis is the school district, not the entire county. Id. at 93 (citing Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274 (1972) (“a citizen has a constitutionally protected right to participate on an equal basis with other citizens in the jurisdiction ”)). Thus, since Tullahoma residents did not reside within the relevant geopolitical entity, their inclusion in the electorate was not mandatory. “The Supreme Court has clearly stated that ‘[n]o decision of this court has extended the “one man, one vote” principle to individuals residing beyond the geographic confines of the governmental entity concerned, be it the State or its political subdivisions.’ ” Id. at 94 (quoting Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 68, 99 S.Ct. 383, 389, 58 L.Ed.2d 292 (1978)). Although the inclusion of Tullahoma residents in the electorate for the rural district's school board was not constitutionally required, we went on to note that this does not mean that the state and county could not, as a matter of policy, choose to include them. Id. They may do so, so long as the votes of those who do reside within the relevant geopolitical entity are not unconstitutionally diluted. Id. We held that the benchmark for determining whether the inclusion of “out-of district” voters in another district's elections unconstitutionally dilutes those votes is whether the decision is irrational. A decision to include “outof-district” voters in the election is not irrational if ... those voters have a substantial interest in the ... election. Id. The factors to be considered in determining whether the out-of-district voters meet this substantial interest test include: (1) the degree to which one district is financing the other; (2) the voting strength of the out-of-district voters; (3) the number of, or potential for, crossover students; and (4) the existence of any joint programs. Id. at 96. In applying these factors, we first noted that Tullahoma residents provided significant financial support to the Rural Coffee County School District. The facts showed that Tullahoma contributed $378,940 and $644,279, respectively, from the property and local option sales tax it collected to the Rural Coffee County School District. Id. at 91, 96. The total contribution of over one million dollars accounted for 7.28% of the rural district's total budget, and 21% of all local funds spent there. Id. at 96–97. We concluded that where, as here, a city provides a substantial amount of its own sales and property taxes to a neighboring school district, and where those funds make up a sizeable portion of the recipient's budget, the decision to make the city residents eligible to vote in the county school board elections is supported by a substantial interest and is therefore not wholly irrational. Id. at 97. We turned next to the district residents. Even if a substantial interest in government allocates the voting strength of the out-ofthe out-of-district residents have district elections, “[w]here the franchise in such a manner that © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Document received by the TN Court of Appeals. of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.’ ” Id. (quoting Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 809, 9 L.Ed.2d 821 (1963)). Moreover, an outright ban on the franchise is not the only manner in which a citizen's right to vote may be infringed upon. “[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Id. (quoting Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964)). Finally, we noted that where a citizen can demonstrate that he lives in the relevant political jurisdiction, there is a strong presumption that he is entitled to vote in its elections. Exclusion of such a citizen from the franchise is subject to strict scrutiny, and will only be upheld upon a showing of a compelling state interest. Id. at 93 (citing Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969)). Board of County Com'rs of Shelby County, Tenn. v. Burson, 121 F.3d 244 (1997) 120 Ed. Law Rep. 420, 1997 Fed.App. 0228P With regard to crossover students, we concluded that the number of Tullahoma residents enrolled in the rural school district was minimal. Although Tennessee law created at least the potential for more crossovers, we concluded that this factor was not a strong point for either side. Id. Finally, we concluded that the lack of any joint programs between the city and rural school districts favored the position of the rural district voters. Id. Taking all of these factors into account, particularly Tullahoma's significant *249 financial support of the rural schools and the minimal chance that city residents will ever control the rural school board, we held that the county-wide election of local school boards was not unconstitutional as applied in Coffee County. III. In applying the Duncan factors to this case, the district court found that the City of Memphis did not provide significant financial support to the Shelby County School District; that the overwhelming voting power of the out-ofdistrict Memphis residents virtually guaranteed that out-ofdistrict residents would control the Shelby County Board of Education; that the number of actual crossover students was minimal, and the potential for additional crossovers was severely limited by a longstanding desegregation order; and that there were, at most, a few relatively minor joint programs between the districts. Accordingly, the district court concluded that the county-wide election of local school board members under Plan C was unconstitutional as applied in Shelby County and enjoined its implementation. On appeal, defendants initially contend that because the Tennessee Constitution requires that local school board members be elected county wide, the district court erred in not deferring to state law in defining the relevant geopolitical entity. However, state constitutions must give way to the requirements of the Supremacy Clause when there is a conflict with the federal Constitution. Reynolds v. Sims, 377 U.S. 533, 584, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964); U.S. Const. Art. VI cl. 2 (“This Constitution ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”). Accordingly, the district court properly followed Duncan, which holds that the relevant geopolitical entity for purposes of the one person, one vote analysis in cases such as this is the school district, not the entire county. Duncan, 69 F.3d at 93. 4 Likewise, Duncan clearly repudiates defendants' suggestion that the inclusion of Memphis residents in the electorate for Shelby County Board of Education members is constitutionally required. Id. at 93– 94. Defendants also challenge the district court's application of the Duncan factors to this case, asserting that Memphis residents do in fact have a substantial interest in Shelby County Board of Education elections. In Duncan, we determined the financial interest of Tullahoma residents based upon the amount of property and sales tax revenues they generated and then allocated to the rural school district. These figures revealed a net flow of over one million dollars from the city to the rural area. Here, the same analysis reveals that Memphis residents do not finance the Shelby County School District, *250 and that the small towns are, in fact, making a net transfer into Memphis. In counties that have more than one school system, such as Shelby County, Tennessee law requires that county property taxes collected for the support and maintenance of schools be divided between the school districts pursuant to a formula based upon school population. In fiscal year 1994–95, the total amount of school property taxes collected in all of Shelby County was $125,215,344. Of that amount, Memphis residents contributed $81,828,227. Memphis schools, however, received $88,687,780 in property tax revenues under the allocation formula. Conversely, residents of the area served by the Shelby County School District contributed $43,387,117 in school property taxes, yet their schools were allocated only $36,527,564. Thus, of the school property taxes paid by residents of the areas outside of Memphis, $6,859,553 went toward the support of Memphis City Schools. Disbursement of sales tax revenues for school purposes is likewise based upon the school population formula. The portion of the local option sales tax collected in Memphis in 1994–95 and allocated to schools was $76,847,701. Of that amount, Memphis City Schools received only $73,549,674. Conversely, the amount of sales taxes collected in the © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Document received by the TN Court of Appeals. residents of a separate area have little or no chance to control their own school board, there may be grave constitutional concerns.” Id. We concluded, however, that given the apportionment of seats on the Coffee County School Board, there was only the slimmest possibility that Tullahoma residents will ever control the school board, and that they could do so only if the Rural Coffee County residents acquiesced in such control. Id. Board of County Com'rs of Shelby County, Tenn. v. Burson, 121 F.3d 244 (1997) 120 Ed. Law Rep. 420, 1997 Fed.App. 0228P The net result of these calculations is that taxpayers in the areas outside of Memphis contributed approximately $3.5 million to the support of Memphis schools during fiscal year 1994–95. Figures for fiscal year 1993–94 show a similar result. Thus, unlike Duncan, where city residents demonstrated a substantial interest in the rural school district by virtue of a net transfer of funds from the city to the rural schools, here the transfer of funds is in the opposite direction. Accordingly, the district court was correct in determining that Memphis voters do not have a financial interest that warrants their inclusion in the Shelby County Board of Education electorate under the first Duncan factor. 5 The second Duncan factor—voting strength of the nonresident voters—also clearly favors plaintiffs in this case. As noted, under Plan C, Memphis residents constitute a majority in six of the seven school board districts. These majorities are overwhelming, ranging from 63% to 100%, virtually guaranteeing that out-of-district residents will exercise control of the board. Defendants contend that this arrangement presents no constitutional dilemma since, under another section of the EIA, Memphis residents would be ineligible to serve as members on the board. See Tenn.Code Ann. § 49–2–201(c). However, the one person, one vote analysis does not focus upon the place of residence of officeholders. Rather, the focus of the analysis is on the “dilution of the weight of a citizen's vote.” Duncan, 69 F.3d at 92 (quoting Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964)). Plan C would unconstitutionally dilute the votes of residents of the Shelby County School District by placing the overwhelming majority of ballots in the hands of out-of-district voters. *251 The third Duncan factor—the number of, or potential for, crossover students—likewise favors plaintiffs. The number of actual Memphis residents who attend Shelby County schools is minimal, accounting for less than one percent of county students. Moreover, the majority of these students are only deemed crossover students because Memphis recently annexed the small town in which they reside. As a result, the students continue to attend the same county school as they have attended in the past, but they are now Memphis residents. However, within seven years the Shelby County School District will turn over full ownership and operation of that particular school to the Memphis City Schools, thus eliminating these “crossover” students. Most of the remaining crossover students attend Shelby County schools under a rule which allows teachers who began working for the school system prior to 1981 to send their children to Shelby County schools regardless of where they reside. Only 106 students, or 0.23% of all county students, attended county schools under this rule during the 1995– 96 school year. The number of this type of crossovers will also inevitably dry up over time, as the number of eligible teachers diminishes. Also, as the district court pointed out, the potential for crossovers from any other sources is severely restricted by a desegregation order. The final Duncan factor is the existence of any joint programs. The parties stipulate that the two school districts have agreed that the county will build and operate a school in the area recently annexed by Memphis; that the new school will serve residents of both areas; and that its operation and ownership will eventually be transferred to the Memphis City Schools. Beyond that, defendants can point only to a number of volunteer or extracurricular activities engaged in by residents of both districts, such as the “Homework Hotline” and the “Science Fair.” It is, however, doubtful that these are the type of “joint programs” contemplated in Duncan. In any event, any support this factor might lend to defendants' position is clearly outweighed by the other factors, particularly the lack of any financial interest in the Shelby County schools on the part of Memphis residents, and the likelihood of overwhelming non-resident control of the Shelby County Board of Education if Memphis residents were to be included in the electorate. IV. Because the district court properly concluded that the Constitution prevents the State of Tennessee from including Memphis voters in the electorate for the Shelby County Board of Education under the circumstances of this case, the judgment of the district court is affirmed. All Citations 121 F.3d 244, 120 Ed. Law Rep. 420, 1997 Fed.App. 0228P © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Document received by the TN Court of Appeals. areas outside of Memphis and allocated to schools was $27,036,020, but the Shelby County School District received $30,334,047 in sales tax revenues. Thus, of the school sales taxes paid in Memphis, $3,298,027 went toward the support of the Shelby County School District. Board of County Com'rs of Shelby County, Tenn. v. Burson, 121 F.3d 244 (1997) 120 Ed. Law Rep. 420, 1997 Fed.App. 0228P Footnotes 2 3 4 5 The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation. The Memphis school system was established by a private act in 1868, and its geographical boundaries are coterminous with the boundaries of the City of Memphis. Since its creation, it has been governed by a board of directors elected by persons who live in the city. That ratio appears not to have changed since the 1990 census, if voter registration figures are any indication. As of May 1, 1996, there were 512,245 registered voters in Shelby County. Of that number, 365,240 live in Memphis, accounting for 71.2% of all county voters. Memphis Residents District 1 71.6% District 2 92.2% District 3 88.6% District 4 71.5% District 5 62.9% District 6 100.0% District 7 33.1% The Board of County Commissioners, which adopted Plan C in accordance with its understanding of state law mandates, nevertheless had doubts regarding the validity of Plan C under the federal Constitution. Accordingly, the Board adopted an alternative plan (“Plan A”) to be implemented in the event that Plan C was ruled unconstitutional. Under Plan A, the seven single member districts would cover only that area of Shelby County that is outside the city limits of Memphis, and only residents of that area would vote in the school board elections. Defendants and amici curiae also argue that Duncan is not controlling in this case since it did not involve the issue of the dilution of minority votes, and assert that this case does present such an issue. In Duncan, we noted that the case before us involved no claim of minority vote dilution. Duncan, 69 F.3d at 95 n. 4. This footnote provides no basis for distinguishing Duncan from the instant case, however, since this case likewise involves no minority vote dilution. As Duncan makes clear, city voters have no constitutional right to participate in the elections of outlying areas since they do not live in the relevant geopolitical entity. Id. at 93–94. The issue in Duncan was whether it was nevertheless constitutionally permissible to include them, and we noted that there was no problem of minority vote dilution in doing so in that case since there were more blacks in the out-of-district area than in the school district. Thus, minority votes were not diluted—the number of minority votes in the electorate actually increased. The potential problem alluded to in this footnote is the issue of whether the decision to expand the electorate to include outof-district voters dilutes minority votes. Such a case would be presented, for example, if a city's electorate was expanded to include white suburban or rural areas in order to prevent a black majority in an urban area from controlling their own local government. However, this case is different. As Holt and Duncan make clear, the one person, one vote rule has never been extended beyond the borders of the relevant geopolitical entity. As such, dilution concerns are simply not implicated in a decision not to expand the electorate. Put another way, black voters in Memphis cannot suffer from dilution of their votes based upon a refusal to include them in the Shelby County Board of Education elections, since they have no constitutional right to vote in these elections in the first place—they have no vote to dilute. Other financial data considered by this court in Duncan also clearly supports this conclusion. The Duncan court also found persuasive the fact that of the rural district's property tax expenditures, fully 14.5% came from transfers from the city. As noted, there is no such transfer here—no portion of the Shelby County School District's property tax expenditures came from transfers from Memphis. The Duncan court also noted that the net transfer of property and sales tax revenues from the city to the rural area accounted for over 7% of the entire budget of the rural school district, and 21% of its local revenues. Here, again, there is no such net transfer from the city, so no portion of the Shelby County School District's total budget or local revenues are attributable to Memphis. Finally, it should be noted that defendants offered evidence that in fiscal year 1992–93, there was a net transfer of $310,826 from Memphis into the Shelby County schools. The district court noted, however, that this is an insignificant amount standing alone, and particularly so in light of the much larger net transfers in the other direction in more recent years. End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Document received by the TN Court of Appeals. * 1 City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 2005 WL 2051284 Only the Westlaw citation is currently available. PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., P.J., M.S., and WILLIAM B. CAIN, J., joined. SEE COURT OF APPEALS RULES 11 AND 12 The CITY OF HUMBOLDT, et al. v. J.R. McKNIGHT, et al. No. M2002–02639–COA–R3–CV. April 13, 2004 Session. Aug. 25, 2005. Application for Permission to Appeal Denied by Supreme Court Feb. 21, 2006. Appeal from the Chancery Court for Davidson County, No. 99–466–III; Ellen Hobbs Lyle, Chancellor. Attorneys and Law Firms Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kate Eyler, Deputy Attorney General; Kevin Steiling, Deputy Attorney General, for the State Defendant–Appellant. Jerry D. Kizer, Jr., Patrick W. Rogers, Jackson, Tennessee, for the Defendants–Appellants, Gibson County, Gibson County Commission and its Members and Gibson County Board of Education and its Members. Valerie B. Speakman, Memphis, Tennessee, for the Defendants–Appellants Gibson County Special School District and Its Members. L.L. Harrell, Jr., Trenton, Tennessee, for the Defendants– Appellants, Trenton Special Schools District and Bradford Special School District. Randall G. Bennett, Tennessee School Boards Association, Nashville, Tennessee, for the Defendants/Appellants J.R. McKnight, et al. Lewis R. Donelson, Angie C. Davis, Memphis, Tennessee, for the Plaintiffs–Appellees, The City of Humboldt and Mayor and Aldermen of the City of Humboldt. OPINION PATRICIA J. COTTRELL, J. *1 This lawsuit is about the operation and funding of public schools educating the children in Gibson County. Since 1981 the county has not operated a county school system, and all K–12 students have been in schools operated by the municipal and special school systems. The county ceased operating schools when a 1981 Private Act created the Gibson County Special School District. This arrangement was ratified by a 2002 Public Act stating that where all K– 12 students are eligible to be served by city and special school systems, the county is not required to operate a separate county school system or have a county board of education. The trial court held that the 2002 Act was unconstitutional as special legislation and that the 1981 Act, though constitutional, was illegal. It ordered the dissolution of the Gibson County Special School District and that the county undertake operation of the schools not included in the other municipal or special school systems within the county. The court further found that the county was required to levy a countywide property tax to fund the local share of education costs and divide the proceeds among all school systems in the county. We hold that the 2002 Act does not violate Article XI, Section 8 of the Tennessee Constitution and, consequently, there is no obligation for the county to operate a county school system. We also conclude that the facts do not establish any disparity of educational opportunity among the school systems in the county and, consequently, the principles and holdings in the Small Schools cases do not apply to require a specific organizational structure and do not preclude the method used in Gibson County. Finally, we conclude the county is not required to levy a countywide property tax for schools. Accordingly, we reverse the trial court's judgment. This suit challenges the unique method of operating and funding education in Gibson County whereby the county operates no schools, has no elected school board, and levies no countywide property tax to fund education. All students in Gibson County are served by either a special or municipal school district. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Document received by the TN Court of Appeals. Court of Appeals of Tennessee. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 The Gibson County Special School District, serving the rural county students, opposes plaintiffs' request that it be dissolved and asserts that its existence and operation are not prohibited by law, but, instead, are specifically authorized. Gibson County argues that no law or constitutional provision places upon it the affirmative burden of operating a school system since all students in Gibson County are served by municipal or special school districts, and that the statute passed during this litigation specifically authorizing this arrangement is constitutional. Furthermore, the county claims that since each of the districts that serve the students collects a property tax assessed by either the city or the General Assembly that is more than sufficient to meet local funding requirements, it is not required to levy a countywide property tax for educational purposes. I. MATERIAL FACTS NOT IN DISPUTE *2 The trial court decided the merits of this controversy on cross motions for summary judgment. The trial court found, and the record reflects, that the following facts are not in dispute among the parties. Since the creation of the Gibson County Special School District (“GCSSD”) by Private Act in 1981, all students residing in Gibson County have been included in one of five (5) school districts. Since all students were served by either the GCSSD, the Trenton Special School District (“TSSD”), the Bradford Special School District (“BSSD”), the Milan Special School District (“MSSD”) or the Humboldt City School System (“HCSS”), a municipal school district, the county itself operates no schools. All of Gibson County is included within the geographical boundaries of these systems. Each of these local school systems is separate and autonomous. Prior to the creation of the GCSSD in 1981, Gibson County operated the Gibson County School System, and the Gibson County Commission levied a countywide property tax for education. According to the affidavit of Bill Carey, who served as Superintendent of Gibson County School System from 1978–81 and as Superintendent of the GCSSD from 1981–97, the impetus for formation of the GCSSD was the difficulty in obtaining adequate funding for the rural schools from the Gibson County Commission. Prior to 1981, according to Mr. Carey, there had been a constant struggle between the Gibson County Commission and the Gibson County Board of Education concerning adequate funding. Since 17 of the 25 commissioners sitting on the commission were from Trenton, Bradford, Milan, or Humboldt, it was perceived they were reluctant to levy a countywide property tax sufficient to fund the rural county schools at the expense of their urban districts. For this reason, the GCSSD was created by Chapter 62 of the Private Acts of the General Assembly of the State of Tennessee for 1981, as amended, and encompasses all of Gibson County not otherwise included within one of the four preexisting school districts. In the private act creating GCSSD, the legislature assessed a property tax on property within GCSSD to operate and maintain the school district. Upon the creation of the GCSSD, Gibson County, in effect, went out of the education business since no students were left to serve. After 1981, Gibson County has not operated or administered a school system. The Gibson County Board of Education continued to exist but, after creation of the GCSSD, its members were no longer elected but appointed. In addition to disbanding the operational components of education, the county ceased funding education in Gibson County through property taxes and changed its property tax rate to reflect the elimination of funding for education. It continues to levy and collect a local option sales tax for education, which is apportioned among the school systems operating in the county. All five (5) school districts in Gibson County are in compliance with the state's education standards and requirements under the state's Basic Education Program (“BEP”). Under the funding aspect of the BEP, the state must provide seventy-five (75%) percent of the state mandated education funds for classroom components and fifty (50%) percent of the state mandated education funds for nonclassroom components. The local school systems collectively are required to fund the remaining twenty-five (25%) percent and fifty (50%) percent respectively. Each system must © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Document received by the TN Court of Appeals. The plaintiffs, City of Humboldt and its officials, brought this suit alleging that Gibson County officials are acting in dereliction of their constitutional and statutory duties by failing to perform any educational role. The Gibson County Special School District, which serves the rural Gibson County students, is alleged to be the device whereby Gibson County avoids its responsibilities. The city also contends that a statute passed after the lawsuit was filed intending to address Gibson County's situation has no effect since it is special legislation in violation of Article XI, Section 8 of the Tennessee Constitution. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 *3 Local governments generally fund their share of the BEP match through property taxes and the local option sales tax. Gibson County does not levy a countywide property tax to fund education since property within each of the school districts is already taxed for education purposes. The private acts creating the GCSSD, the MSSD, the TSSD and the BSSD levy a property tax on the property located within their respective districts and specify the rate to be assessed. HCSS levies a property tax for education as authorized by the legislature. On the other hand, the local option sales tax is collected by Gibson County and then distributed among the five school systems on a weighted full-time equivalent average daily attendance (“WFEADA”) basis. The creation of the GCSSD had no effect on Gibson County's collection of sales tax and its distribution of a portion of that sales tax to the five public school systems operating in Gibson County. There is no dispute that education is being funded in Gibson County in excess of that required by the state's BEP. A comparison of key education components shows that in many respects the schools in Humboldt are outperforming the schools in the GCSSD. Quoting from the trial court's memorandum, relying largely on the 1997–98 Tennessee Report Card, the undisputed facts show: (1) During the 1997–1997 school year, the City of Humboldt maintained five (5) K through 12 schools, whereas GCSSD maintained six (6) K through 12 schools. (2) According to the Tennessee Report Card, “Accreditation by the Southern Association of Colleges and Schools (SACS) is something to which all public schools in Tennessee should aspire, and in fact, more are successful in achieving accreditation each year. Accreditation means not only that minimum standards are met, but also that the school community is committed to raising the quality of its program. For the 1997–1998 school year, 100% of Humboldt Elementary Schools were SACS accredited, and 50% of its secondary schools were SACS accredited, whereas 0% of GCSSD elementary or secondary schools were SACS accredited. (3) The Tennessee Report Card further states that, “The Tennessee General Assembly, believing that smaller classes increased students' chances of academic success, included class size standards in the Educational Improvement Act (EIA) of 1992 that will require lower class sizes for all grades by the school year 2001– 2002. As of 1997–1998, 99.7% of City of Humboldt classes met the EIA class size standard and 100% of the Humboldt schools met the EIA standard, whereas only 99.1% of the GCSSD classes met the EIA class size standard, and 100% of the GCSSD schools met the EIA class standard. (4) The Tennessee Report Card states that, “A wide range of instructional and support personnel is required to effectively operate a school system”. Recalling that during the 1997–1998 school year, the City of Humboldt operated one less school than GCSSD, the City of Humboldt employed 13 administrators, 131 teachers, 14 student support personnel, and 158 total professional personnel, whereas, GCSSD employed only 7 administrators, 135 teachers, 9 student support personnel, and 151 total professional personnel. *4 (5) According to the Tennessee Report Card, “The calculation of expenditures per student is intended to provide a basis for comparison among school systems of different sizes.” ... In the 1997–1998 school year, the per pupil expenditure in the City of Humboldt, was $4,313.00 per student, whereas, in the GCSSD the per pupil expenditure totaled only $3,327.00. (6) For the 1997–1998 school year, the City of Humboldt's average salary for teachers was $31,234.00, whereas, the average salary for teachers in the GCSSD was only $29,706.00. (7) For the 1997–1998 school year, state and local revenue per student in the City of Humboldt was $4,133.00 per student, whereas, in the GCSSD state and local revenue totaled only $3,846.00 per student. (Citations to the 1997–98 Tennessee Report Card omitted). Additionally, the record shows that the per pupil expenditure from property tax revenue for 1998–99 in Humboldt was $927.36 and for GCSSD was $776.21. In other words, Humboldt spends substantially more per student than GCSSD out of local property tax revenues as well as more per pupil from all sources. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Document received by the TN Court of Appeals. contribute a minimum share based upon fiscal ability. Each of the five local school systems in Gibson County contributes more than its state mandated local share under the BEP. In other words, students in both Humboldt and the GCSSD receive more funds per pupil than is required under the BEP. The City of Humboldt spends more per pupil than any of the other systems in Gibson County. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 Tennessee that does not actually operate any schools. 1 It appears that this arrangement was not seriously examined or questioned until officials with the City of Humboldt apparently sought to relinquish the separate municipal school system in Humboldt. In August of 1994, and in November of 1998, the voters of Humboldt rejected referenda to transfer administration of the Humboldt City School System to the Gibson County Board of Education. In February of 1999, the City of Humboldt, its Mayor, and Board of Aldermen (collectively “Humboldt”) filed suit to challenge the way education is administered and funded in Gibson County. 2 The defendants ultimately named in the Amended Complaint can be classified in four (4) groups. First, the suit names those entities in Gibson County that plaintiffs believe are avoiding their constitutional and statutory duty: the Gibson County Commission, the Gibson County Board of Education, their respective members, and the Gibson County Executive (collectively “Gibson County”). Second, Humboldt names the district it seeks to abolish, the Gibson County Special School District, and its associated members (collectively “GCSSD”). Third, the lawsuit includes state officials as defendants: the Governor, Attorney General and Reporter, Commissioner of Education, State Board of Education, and Commissioner of Finance and Administration (collectively “State”). Finally, the suit names the other special school districts in the county, their members and superintendents (MSSD, BSSD, and TSSD). According to Humboldt's Amended Complaint, since the GCSSD was created in 1981, Gibson County has avoided its constitutional and statutory duties to oversee education in Gibson County, operate a school system, and levy a countywide property tax in Gibson County. According to Humboldt, the failure to levy a countywide property tax to fund education results in a system of financing education that does not ensure a substantially equal educational opportunity to the students residing in Gibson County. *5 The Amended Complaint for Declaratory Judgment and Injunctive Relief asked the court to find that: 1) Gibson County is required to levy a countywide property tax to fund education to the minimum contribution requirements specified under the state's BEP; 2) Gibson County is required to oversee all school districts within Gibson County; 3) the Private Act of 1981, Chapter 62 creating the GCSSD violates the Tennessee Constitution Article II. MOTIONS FOR SUMMARY JUDGMENT In September of 1999, Gibson County filed the first in a series of Motions for Summary Judgment. Gibson County argued that its configuration of school systems is constitutionally sound and that state law does not require it to maintain and operate a school system or levy a countywide education property tax. Gibson County maintained that Humboldt's lawsuit is not about education but, rather, is an effort to adjust the tax burden to the advantage of the residents of Humboldt. 3 The Trenton, Bradford, and Milan Special School Districts joined in Gibson County's motion. On December 4, 2000, Humboldt filed a cross Motion for Summary Judgment asking the court to abolish GCSSD, order Gibson County to administer and fund schools in Gibson County, and order that the Gibson County Board of Education be elected. Thereafter, the GCSSD filed its Motion for Summary Judgment on December 11, 2000. While the GCSSD argued the same positions as Gibson County, the motion filed by GCSSD primarily addressed the legality of the private act creating it. The trial court held a hearing on the parties' motions for summary judgment. III. THE TRIAL COURT'S ORDERS, SUBSEQUENT LEGISLATION, AND APPEAL A) Order on Motions for Summary Judgement On February 12, 2001, the trial court issued a Memorandum and Order on the cross motions for summary judgment granting Humboldt's Motion for Summary Judgment in part (hereinafter referred to as “Order”). The trial court found that Gibson County is violating Tennessee statutes governing education in three respects: (1) its failure to levy a countywide property tax for education; (2) its failure to maintain a “first rate” county high school; and (3) its failure to maintain a county administrative structure responsible and accountable to the State of Tennessee for public education in Gibson County. The trial court found the statutory scheme governing education in Tennessee “assumes and requires performance at © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Document received by the TN Court of Appeals. Humboldt alleges that Gibson County is the only county in XI, § 12, Article XI, § 8, and Article I, § 8 and state law since the GCSSD enables Gibson County to abdicate its countywide educational responsibilities. The Complaint asked that GCSSD be abolished. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 *6 The trial court reached this conclusion based upon several grounds. First, the court relied upon the codified organization of the education statutes. Due to the organization scheme, the trial court found that “Part 1, General Provisions, sets out general duties and obligations of local administration of schools.” Based on this reasoning, the court found that Gibson County must perform all of the education tasks described in Tenn.Code Ann. § 49–2–101 even though Gibson County operates no schools. The trial court also relied on Tenn.Code Ann. § 49–2–101, which provides for duties of the county legislative body, including duties to levy taxes for county schools, oversee county boards of education and county directors of schools, adopt a budget for the operation of county schools, and provide sufficient funds to erect a suitable building and maintain at least one (1) first-class four-year high school. Based on this statute, the trial court found Gibson County is required to adopt budgets for the operation of county schools, examine the accounts of the county schools, levy taxes to fund the budgets, and maintain one first class high school. The trial court, however, did not address why these obligations apply if the county operates no schools or, stated in the language of the statute, if there are no “county schools.” The second basis for the trial court's decision is the county's statutory duty under Tenn.Code Ann. § 49–2–102(a)(1) to provide education should a special or municipal school district terminate. This provision, according to the trial court “assumes the existence of a county system to fall back on.” Therefore, the court reasoned the county must maintain a system for this purpose. Third, the statute authorizing counties to contract with other entities to perform their educational duties is also cited by the trial court for support. Pursuant to Tenn.Code Ann. § 49– 2–109, counties may contract with private schools or other school districts to provide education to county students. This option would be available although the private school or other school district has no pre-existing obligation to serve the county students. If a county elects to enter into such a contractual relationship, however, the statute also provides that the county retains its authority as though the students were in a county school. Tenn.Code Ann. § 49–2–109(a)(2). Therefore, since the county may not relinquish its authority in this contractual setting, the court reasoned by analogy that the county may not relinquish its authority over any student even if the legislature has created a special school district to serve the student. Finally, the court found that Tenn.Code Ann. § 49–1–102 places the duty on the county to operate a school system. The language of Tenn.Code Ann. § 49–1–102(c) relied upon by the court is as follows: There shall be a local public school system operated in each county or combination of counties. There may be a local public school system operated in a municipality or special school district. Any local public school system shall be administered by *7 (1) A local board of education; and (2) A superintendent or director. The court concluded that since the statute requires that a local public school system be operated, then it must be the county that operates it. According to the court, this conclusion is mandated because “there must be a local body to be held accountable for and against whom the requirement that there be a local public school system operated in each county be enforced.” In conclusion, the trial court found: Putting all the foregoing statutes together reveals that the statutory scheme enacted by the legislature is that the county legislative body is the legal entity responsible for public education across the county. Municipalities and special school systems can carve out a school or schools to operate, administer and provide additional funds. The county can contract with municipalities, special school districts or private schools to operate county schools. But the county legislative body is not permitted to remove itself or withdraw from education in the county. At a minimum it must levy a countywide property tax for education, and it must © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Document received by the TN Court of Appeals. a countywide level of [these] core responsibilities.” In other words, the trial court found Tennessee statutory law requires the county to be the agency through which the state fulfills its education responsibilities. The county is then required to perform basic functions and is accountable to the state for the standard of education provided countywide. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 “first-class” high school 4 and to be accountable to the State. The trial court declined to rule for Humboldt on several issues. The trial court found that Gibson County was not under a constitutional duty to provide substantially equal educational opportunities since the state bears this constitutional duty. The trial court also found that the private act creating the GCSSD did not violate the state constitution. 5 It was not the Private Act creating the Gibson County Special School District that repealed the countywide property tax or provided for the abdication of the county from education; these defalcations were committed by the county legislative body after the Private Act was passed. The trial court found that Gibson County's statutory violations harmed Humboldt in two ways. First, the trial court found failure to levy a countywide property tax for education deprived Humboldt of its share of the tax. Second, the court reasoned that without the county serving in an oversight role, there is no single entity for the State to work with and hold accountable. The trial court also found, however, Humboldt was not able to show that the students in Humboldt were receiving an education that was inferior to the education being received by students in the GCSSD. The trial court reserved the issue of remedies to be decided at a later date. The court noted that whether GCSSD should be abolished as part of the remedy would be decided later. The parties were invited by the trial court to consult their constituents for local input and to work together to fashion an appropriate remedy that addressed the deficiencies found by the court. B) First Remedy Order *8 After proposed remedies were submitted to the trial court by the parties, the trial court held an evidentiary hearing on September 20, 2001 regarding remedies. Thereafter, on November 8, 2001, the trial court entered its first order on the issue of remedies (hereinafter “First Remedy Order”). Humboldt's proposed remedy suggested the abolition of the GCSSD and assumption by Gibson County of GCSSD's responsibilities. The remedy presented by Gibson County and GCSSD provided for the election of the Gibson County Board of Education, appointment of a superintendent, and Gibson County's operation of a high school by agreement with the GCSSD. The proposed countywide tax basically would fund the high school. The trial court rejected both of these remedies. In discussing the reasons why these proposed remedies were rejected, the court interjected for the first time a requirement that Gibson County have in place a “viable county school system for schools permissively maintained by the towns and cities to default to and fall back on upon surrender of their charter....” Therefore, the trial court concluded for the first time that “to fulfill the requirements of section 49–2–1002(a) (1), the county must provide a county K through 12 system.” The trial court, however, also did not accept Humboldt's proposed remedy: On the other hand, the Court seeks to avoid and stop short of abolishing the Gibson County Special School District, unless there is no other less intrusive remedy consistent with the law, because abolition is disruptive to the students and parents of the District. The Special School District has an identity important to its community. The Special School District has served well the students and parents of its district. Keeping in place the parochial benefits of operation of the high school by the same people with known policies and philosophies would provide continuity and security for parents and students of the District. In its First Remedy Order, the court concurred with the proposed remedy suggested by the Attorney General. The problem, then, is how to keep in place the community approval, support and security achieved by the Special School District but to require the County to step up to the plate in fulfilling its statutory obligation to maintain a county system capable of absorbing and operating city schools who surrender their charter. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Document received by the TN Court of Appeals. maintain a sufficient administrative structure to at least contract with another entity to fulfill its statutory charge to erect and maintain one City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 *9 Therefore, the court ordered the parties to submit a revised proposed remedy that followed the original remedy proposed by Gibson County and GCSSD but modified as suggested by the Attorney General. The court also ordered that the countywide property tax for education in the next proposed remedy must be sufficient to fund the local share of BEP for the GCSSD and “the shares of tax proceeds due to (MSSD, TSSD, BSSD and HSS) pursuant to Tennessee Code Annotated §§ 49–3–315 and 67–6–712 as calculated by the Tennessee Department of Education.” C) Second Remedy Order On February 7, 2002, the trial court issued a clarification of its First Remedy Order upon request of the GCSSD. (“Second Remedy Order”). The court found that GCSSD's collection of property tax for it to meet the BEP match violates Tennessee law since Gibson County must fund the minimum BEP local match for GCSSD. The court found GCSSD was able, however, to tax for additional revenue that exceeded the match pursuant to the private act. D) Third Remedy Order On May 22, 2002, the trial court issued yet another order on the revised remedies proposed by the parties (Third Remedy Order). At that juncture, Gibson County and the GCSSD were not able to agree on a joint remedy. The trial court reasoned that since Gibson County and GCSSD were unable to agree, then a contractual remedy was not possible. Therefore, the court accepted the remedy offered by Humboldt to abolish the GCSSD, ordered the imposition of a countywide property tax to fund the minimum BEP match, and ordered that Gibson County provide a kindergarten through twelfth grade school system. What the Court is faced with, then, is that the opportunity the Court provided the Gibson Defendants to effect a remedy consistent with Gibson County's statutory duties but short of abolishing the Gibson County Special School District has not been taken. That the Gibson County Commission, Gibson County Special School District and Humboldt have been unable to agree upon a contract means that a contractual remedy is not possible. Accordingly, the only remedy for curing Gibson County's statutory violations is to abolish the Gibson County Special School District. While the Court found in its February 12, 2001 memorandum and order that the 1981 Private Act establishing the Gibson County Special School District was constitutional, the Court is now compelled, by the failure of a contractual remedy, to declare that the Private Act establishing the Gibson County Special School District is illegal because the Act interferes with and prevents Gibson County from performing its statutory duties. It is therefore ORDERED that the Court declares the 1981 Act creating the Gibson County Special School District illegal on the grounds that the Act interferes and prevents Gibson County from performing its statutory duties. E) Legislative Amendment and the Court's Order on Constitutionality of That Amendment On the same day that the trial court issued the Third Remedy Order, Chapter 770 of the Public Acts of the State of Tennessee for 2002 was signed by the governor amending Tenn.Code Ann. § 49–2–501 by adding the following subpart: *10 (b)(2)(C) Notwithstanding any other provision of this title, in those counties in which all students in grades kindergarten through twelve (K–12) are eligible to be served by city and special school systems, the county shall not be required to operate a separate county school system, nor shall it be necessary that a county school board be elected or otherwise constituted. The amendment took effect July 1, 2002 (hereinafter called “Chapter 770”). © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Document received by the TN Court of Appeals. The remedy is the one proposed by the Attorney General. That remedy allows the Gibson County Board of Education and the Gibson County Special Board to contract for the Special Board to operate the high school. The remedy, however, requires the County to also provide a county system for K through 8 education and to levy a true countywide tax. The remedy of the Attorney General spells out in more detail and thereby underscores the obligations of the County in the Agreement with the Special Board and eliminates the trigger provision. All of these modifications appropriately recast the County's role and require the County to assume its statutory obligation as the primary entity responsible for education in Gibson County. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 Gibson County and GCSSD both filed motions to alter or amend the court's Third Remedy Order in light of the enactment of Chapter 770. On September 23, 2003, the trial court found Chapter 770 to be unconstitutional on the ground that it is special legislation in violation of Article XI, § 8 of the Tennessee Constitution and enjoined its enforcement (hereinafter “Order on Chapter 770”). Without further elaboration, the trial court expressly adopted as its reasoning the arguments and authorities stated in Humboldt's reply brief. F) Appeal And Stay Of The Trial Court's Orders Timely appeals of the trial court's orders were filed by Gibson County and GCSSD. First, the parties allege the trial court erred in finding that Gibson County is required by state educational statutes to have and operate its own school system and levy a countywide property tax to fund education. (Order, First Remedy Order). Second, it is alleged that the trial court had no authority to abolish the GCSSD by declaring the Private Act creating it “illegal” absent a finding of constitutional infirmity. (Third Remedy Order). Third, the trial court is said to have erred in holding Chapter 770 unconstitutional. (Order on Chapter 770). Finally, the parties allege the trial court erred in the formulation of remedies. (First, Second, and Third Remedy Order). The State appealed the trial court's order finding Chapter 770 unconstitutional. The trial court granted the defendants' motions to stay any proceedings to enforce the trial court's orders pending appeal. IV. CHAPTER 770 By its adoption of Chapter 770, the General Assembly ratified the situation that currently existed as to the organizational structure governing the provision of education in Gibson County. Chapter 770 clarified the General Assembly's intent with regard to that structure and approved it. Thus, regardless of whether the statutory scheme prior to its enactment can be read, as the trial court did, to require a county to operate a school system, Chapter 770 clearly authorizes the arrangement present in Gibson County. *11 Accordingly, if Chapter 770 is a constitutional exercise of the legislature's authority over and discretion to provide a system of public education, questions regarding the original private act creating GCSSD and the subsequent removal of Gibson County from the operation of schools are no longer at issue. Because determination of the issues surrounding the validity of Chapter 770 may pretermit consideration of other issues, we begin there. In its Order on Chapter 770, the trial court found that Chapter 770 constituted special legislation in violation of Article XI, § 8 of the Tennessee Constitution and permanently enjoined its enforcement. As its reasoning, the court expressly adopted the arguments and authorities stated in Humboldt's Reply Brief without further elaboration. According to this rationale, Chapter 770 is unconstitutional since it (a) violates the provisions of Tennessee Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn.1993) ( “Small Schools I ”); (b) contravenes the statutory system that designates counties to administer education; (c) represents unsound public policy; and (d) the rational basis for the legislation does not appear on its face. 6 V. THE SMALL SCHOOLS OPINIONS Throughout its filings, Humboldt makes reference to constitutional protections of students and to the holdings of the Tennessee Supreme Court in a series of opinions in the Small Schools case. In concluding that Chapter 770 was unconstitutional, the trial court adopted Humboldt's rationale which included an argument that the amendment contravenes the provisions of the Tennessee Supreme Court's decision in Small Schools I, supra. In the second in the series, Tennessee Small School Systems v. McWherter, 894 S.W.2d 734 (Tenn.1995) (“Small Schools II ”), the Court restated its holding in Small Schools I: [T]he Tennessee Constitution guarantees to the school children of this State the right to a free public education and imposes © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 Document received by the TN Court of Appeals. Given the obvious potential impact of Chapter 770 to this case, Humboldt promptly filed a Motion for Declaratory Judgment and Injunctive Relief on May 31, 2002 seeking to have Chapter 770 declared unconstitutional. Although Humboldt's initial objection to the legislation concerned its caption being “overly broad,” Humboldt's primary objection to Chapter 770 was that it allegedly violates Article XI, Section 8 of the Tennessee Constitution prohibiting special legislation. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 had been shown to be a primary cause of the disparities in educational opportunities across the state. In Small Schools II, the Court found the General Assembly's solution through the Education Improvement Act, implemented incrementally, met constitutional requirements, with the exception of teacher salaries which were not included 894 S.W.2d at 734. as a component of the methodology for funding costs. 8 In Small Schools I, the Court held that Article XI, Section 12 of the Tennessee Constitution guaranteed a free public education and placed upon the General Assembly the duty to “maintain and support a system of free public schools that provides, at least, the opportunity to acquire general knowledge, develop the powers of reasoning and judgment, and generally prepare students intellectually for a mature life.” 851 S.W.2d at 150–51. The Court did not, however, find the current system unconstitutional on the basis of the education clause of the Tennessee Constitution. 851 S.W.2d at 152 (holding that the extent the system did not comport with the education clause need not be determined). In Small Schools III, the Court found that the failure of the State to include teacher salary equalization in the formula applicable to other costs continued to be a significant constitutional defect and rendered the salary equity plan unsatisfactory in fulfilling the State's obligation to provide a system that affords substantially equal educational opportunity to all students. 91 S.W.3d at 243. This conclusion was based upon the Court's finding that there was no rational basis for excluding teacher salaries from a basic funding system consisting of cost-driven components. Id. The facts showed that wide disparities in teacher salaries still existed, and the Court found that such disparities “can lead to experienced and more educated teachers leaving the poorer school districts to teach in wealthier ones where they receive higher salaries.” 91 S.W.3d at 242. The result was the continuation of constitutional inequities. Id. Instead, the Court found the existing funding system created by the General Assembly was unconstitutional because it violated the Tennessee Constitution's equal protection clauses. 7 “These provisions of the Tennessee Constitution assure the nondiscriminatory performance of the duty created by Article XI, Section 12.” 851 S.W.2d at 153. *12 The Court found that the record demonstrated substantial disparities in the educational opportunities afforded students across the state and that those disparities were caused principally by the statutory funding scheme. 851 S.W.2d at 156. The court also held that the proof failed to show a legitimate state interest “justifying the granting to some citizens educational opportunities that are denied to other citizens similarly situated.” Id. Consequently, the statutory funding scheme failed the rational basis test. In Small Schools II, supra, and Small Schools III, Tennessee Small School Systems v. McWherter, 91 S.W.3d 232 (Tenn.2002), the Court continued to make clear that the question was substantial equality of educational opportunities. See, e.g., Small Schools III, 91 S.W.3d at 243 (“the educational funding structure [must] be geared toward achieving equality in educational opportunity for students, not necessarily ‘sameness' in teacher compensation.”) The focus in all three cases was on the funding structure, because that Thus, it is clear that the Small Schools case dealt with substantial equality of educational opportunity, the funding method that directly affected the quality of education and disparity of opportunity, and the General Assembly's duty to provide a funding scheme that assured substantially equal educational opportunities across the state. The “uniformity” that Humboldt asserts the Court required in the Small Schools opinions applies only to the provision of the components of a basic quality education and a substantially equal opportunity to obtain the benefits of that education. *13 The Small Schools case was about the method of funding schools. In the course of its opinions in that case, our Supreme Court also discussed the legislature's wide discretion in fashioning a statewide system that meets constitutional requirements. The power of the General Assembly is extensive. The constitution contemplates that the power granted to the General Assembly will be exercised to accomplish the mandated © 2020 Thomson Reuters. No claim to original U.S. Government Works. 9 Document received by the TN Court of Appeals. upon the General Assembly the obligation to maintain and support a system of free public schools that affords substantially equal educational opportunities to all students. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 Small Schools I, 851 S.W.2d at 156. The legislature's plan to address the constitutional deficiencies found to exist in Small Schools I (including the BEP) contained both funding and governance provisions designed to provide the programs and services essential to basic K through 12 education across the state. 894 S.W.2d at 736. Funding was based on actual costs of 42 components identified as necessary to providing an education meeting constitutionally required standards. Id. With regard to governance, the Court found: The essentials of the governance provisions of the BEP are mandatory performance standards; local management within established principles; performance audits that objectively measure results; public disclosure by each local system of objectives, strategies, and results; removal from office of local officials unwilling or unable to effectively manage a local system; and final responsibility upon the State officials for an effective educational system throughout the State. Small Schools II, 894 S.W.2d at 739. The Court found that each of the factors related to funding and governance was integral to the overall plan and indispensable to it. Id. While the Court indicated that, along with a number of other factors, organizational structure could affect the quality and availability of educational opportunity, Small Schools I, 851 S.W.2d at 156; Small Schools III, 91 S.W.3d at 243, the Court did not impose any requirement for uniformity in organizational structure. To the contrary, the Court specifically recognized the General Assembly's wide discretion in designing a statewide system and also recognized the importance and expectation of innovation at the local level. The focus on the funding method in Small Schools was based on the court's finding that the existing method was a primary cause of disparities in educational opportunities. Such a factual predicate has not been shown in the case before us with regard to the effect of the system of providing education that exists in Gibson County. There is simply no proof that the organizational structure in Gibson County adversely affects the quality of education delivered by any of the school systems or that there exists a disparity of educational opportunity between students in the Humboldt system and those in GCSSD. To the contrary, the record supports the trial court's finding that there was no showing that there was a disparity in the quality of education or the substantial equality of educational opportunities between the students of the two systems. *14 Because the existing system has not been shown to affect the rights recognized in Small Schools I and its progeny, Chapter 770, which ratified that system, also has no effect on those protected rights. Without proof of a causal connection between the organization structure for the provision of education to the students who live in Gibson County and any disparity in educational opportunities among them, the principles of Small Schools I and its progeny are simply not implicated. Finally, Humboldt argues that in Small Schools I the Supreme Court found that the county was the instrument through which the legislature must comply with the constitutional requirement of substantially equal educational opportunities. We disagree and conclude the Court did not place such a restriction on the legislature. To the contrary, in all three Small Schools opinions, the Court repeatedly recognized the prerogative of the legislature in establishing a statewide system of public education as long as that system met constitutional requirements. In Small Schools II, the Court found the legislative remedy adopted in 1992 met constitutional requirements. The Education Improvement Act and BEP apportion responsibility and accountability between the State and “local school systems.” Consequently, the Court's discussion of the system used the same terms. For example, the Court recognized that the objective of providing programs essential to a basic education for public school children was to be © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 Document received by the TN Court of Appeals. result, a public school system that provides substantially equal educational opportunities to the school children of Tennessee. The means whereby the result is accomplished is, within constitutional limits, a legislative prerogative. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 Because the Court reviewed the General Assembly's plan for compliance with the mandates of Small Schools I, and approved that plan with the exception of the teacher salary component, we cannot read the Court's opinions as creating organizational or structural requirements separate or different from those established by statute. Consequently, we conclude that the structure through which the public schools in Gibson County are operated does not contravene any constitutional requirement imposed by the Court in the Small Schools opinions. VI. STATE SYSTEM FOR PUBLIC EDUCATION The Tennessee Constitution requires that the General Assembly provide for the maintenance and support of a system of free public schools. Tenn. Constit., Article XI, § 12. Under this clause, the General Assembly has extensive power and discretion regarding the methods and means used to provide the public school system. Small Schools I, 851 S.W.2d at 156. *15 The system designed and maintained by the General Assembly is based upon direct delivery of educational services by local school systems or local education agencies. These entities may vary by name, method of creation, organization, or otherwise. “Local education agency (LEA),” “school system,” “public school system,” “local school system,” “school district,” or “local school district” means any county school system, city school system, special school district, unified school system, metropolitan school system, or any other local public school system or school district created or authorized by the general assembly. Tenn.Code Ann. § 49–1–103(2). Thus, the General Assembly has the broadest discretion to create or allow various entities to provide educational services to children in the state. The statute not only recognizes existing entities, but also provides for new entities that might be created. In addition to the types of local school systems identified, the General Assembly has also provided for additional variations. For example, Tenn.Code Ann. § 49–2–1101 et seq. provides that the boards of education of any two or more local school systems (including county school systems) may operate a school or schools jointly by contract. Under Tenn.Code Ann. § 49–2–1201 et seq., multiple local school systems within a county may agree to consolidate. Additionally, county boards of education may combine to operate schools as a single multi-county consolidated school system. Tenn.Code Ann. § 49–2–1251 et seq. In designing the education system in Tennessee, the legislature has clearly placed both responsibility and accountability in the local education agency, whatever organizational structure it might have. Throughout the statutes describing state administration of education, time and again the state places responsibility on the local education agency (“LEA”) or local school system to fulfill local education responsibilities. Tenn.Code Ann. § 49–1–101 et seq. As set out above, the legislature has defined LEA or local school system to mean any system authorized by the legislature to deliver education. The following are examples of instances where the state places responsibility directly on the local system and the system is likewise accountable to the state: a) the state is to designate fiscal accountability standards for local school systems to be used by the state to evaluate the fiscal operations of local school systems. (Tenn.Code Ann. § 49–1–210); b) the state is to conduct performance compliance audits of local school systems and publish an annual report of the compliance and performance audits of the local school systems, showing incentives and sanctions applied to any local system (Tenn.Code Ann. § 49–1–211); © 2020 Thomson Reuters. No claim to original U.S. Government Works. 11 Document received by the TN Court of Appeals. “accomplished by defining the essentials of an effective education plan suitable for every local system.” Small Schools II, 894 S.W.2d at 736. The Court made reference to governance and accountability being in the local systems, not in the counties. The “local system” develops a plan, and performance of the “local system” is monitored by the State. Id. at 737. The Supreme Court in its decisions in Small Schools I and Small Schools II did not limit the legislature's prerogatives on how it met its constitutional educational responsibilities to require that the legislature act through the county. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 d) performance goals are set for each school district in order to meet the goal that each school district have a mean gain equal or greater than the national norms. (Tenn.Code Ann. § 49–1–601); *16 e) the state is to designate a management information system to be used by the local school systems to report information to the state for internal control and system management (Tenn.Code Ann. § 49–1–209); f) school systems may be placed on probation by the state for failing to meet state standards (Tenn.Code Ann. § 49–1– 602). If a school system does not make progress to meet the standards for 2 years, the state may assume governance of the system but “the LEA will continue to be accountable for the match required by the BEP funding formula for students served.” (Tenn.Code Ann. § 49–1–602(f)(1)(A); g) the state is to develop and provide to the LEAs guidelines for evaluation of certified personnel and each LEA must develop an evaluation plan approved by the state to insure consistency with the state's guidelines. (Tenn.Code Ann. § 49–1–302(d)(1)); h) LEAs are expected to meet class size standards, Tenn.Code Ann. § 49–1–104; i) the state is to coordinate with LEAs on family life education and preschool/parenting learning centers (Tenn.Code Ann. § 49–1–205 and 206); j) the state is to provide technical assistance to the LEAs (Tenn.Code Ann. § 49–1–213); k) the state is to develop advisory guidelines for LEAs about safety (Tenn.Code Ann. § 49–1–214); l) each LEA is to submit a compliance report to the state on teacher planning periods (Tenn.Code Ann. § 49–1–302(e) (2)); m) state coordinated health grants are available to LEAs (Tenn.Code Ann. § 49–1–1003). It is clear that the legislature has placed responsibility and accountability for schools in this state in the agencies actually operating them—whether that agency be a county school district, a special school district, a municipal school district, or any other type of district authorized by the legislature. In fact, to the extent duties are placed on boards of education, it must be noted that the legislature has defined such boards as “the board of education which manages and controls the respective local public school system.” Tenn.Code Ann. § 49– 1–103(1). In this statutory scheme of responsibility and accountability, the county has no role unless and to the extent it is actually operating a school system. Even then, it is the county school system, not the county government itself, that is accountable to the state for education. If a municipal or special school district is operating in a county, then that district is accountable to the state for the operation of the municipal or special school systems, not the county or the county school system. Nothing in the statutes requires the county to oversee or be responsible for municipal, special, or other school districts that operate within the county's borders. To the contrary, the State is responsible for maintaining the system and ensuring its standards. The State Report Card appearing in this record, for example, demonstrates that reporting, accountability and other responsibilities lie with the individual school systems. The counties in which municipal or other school systems operate do not report for those systems and do not otherwise have a role between the state and those systems. *17 The General Assembly has provided for various entities to provide educational services at the local level. Local control is a desirable goal with benefit to the students. 9 The statewide system designed by the legislature recognizes differences in structure and organization, while consistently requiring one responsible unit: the local school system or local education agency. Consequently, we cannot agree with the proposition that the county is the entity that is responsible for education of all students living in the county, even without Chapter 770. Neither the statutes nor actual practice supports such a statement. VII. SPECIAL LEGISLATION Article XI, § 8 of the Tennessee Constitution provides as follows: © 2020 Thomson Reuters. No claim to original U.S. Government Works. 12 Document received by the TN Court of Appeals. c) local boards of education shall perform annual financial audits and be accountable to the State Comptroller for those audits (Tenn.Code Ann. § 49–2–112); City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 provision of the state constitution nor do we find it necessary to do so. The Tennessee Supreme Court has interpreted Article XI, Section 8 to place limitations on the ability of the legislature to enact laws that benefit a county or counties or an individual or individuals unless such special legislation is supported by a reasonable basis. In order for the provisions of Article XI, Section 8 to be triggered, a statute which is either local or local in effect must contravene some general law which has mandatory statewide effect. Leech v. Wayne County, 588 S.W.2d 270, 273 (Tenn.1979); see Rector v. Griffith, 563 S.W.2d 899 (Tenn.1978). In Leech, the General Assembly enacted a statewide scheme regarding county legislative bodies but, through population classifications, made exceptions for two counties. 588 S.W.2d at 273. The trial court found the exception for two counties violated Article XI, Section 8 of the Tennessee Constitution. Id. at 274. The Supreme Court declined to find the exceptions unconstitutional under that provision: While a strong argument can be made in support of this conclusion, in view of the broad powers which the General Assembly has with reference to the structure of local governments and their agencies, we are reluctant to rest our decision on that Id. at 274. (emphasis added) The Court then continued its analysis to find the exception violated another provision of the constitution. Id. at 274. At one time, caselaw suggested that the legislature had unlimited authority to enact private acts affecting local governments without violating Article XI, Section 8. See Rector, 563 S.W.2d 899 (Tenn.1978); Brentwood Liquors Corp. of Williamson County v. Fox, 496 S.W.2d 454 (Tenn.1973). The Supreme Court, however, has found “more authoritive” the caselaw that holds that the legislature may not suspend a general law with mandatory statewide application unless there is a reasonable basis for such departure. Rector, 563 S.W.2d at 903–04. *18 The Rector court also made clear that if there is no general state law that has mandatory applicability, then the legislature has “almost unlimited discretion to enact private legislation affecting the structure and organization of local government units.” Id. at 904. Thus, Article XI, section 8 is implicated only when the statute at issue contravenes (or suspends) some general law that has mandatory statewide application. Riggs v. Burson, 941 S.W.2d 44, 53 (Tenn.1997) cert. den. 522 U.S. 982, 118 S.Ct. 444, 139 L.Ed.2d 380 (1997), citing Civil Service Merit Board v. Burson, 816 S.W.2d 725, 727 (Tenn.1991); Knox County ex rel. Kessel v. Lenoir City, 837 S.W.2d 382 (Tenn.1992). Even where a statute contravenes general law or suspends the application of general law in specified circumstances, it does not violate Article XI, Section 8 if there is a rational basis for the distinctions made. Article XI, section 8 is implicated when a statute “contravene[s] some general law which has mandatory statewide application.” Civil Service Merit Board v. Burson, 816 S.W.2d 725, 727 (Tenn.1991); Knox County ex rel. Kessel v. Lenoir City, 837 S.W.2d 382 (Tenn.1992). If a statute does suspend a general law, article XI, section 8 is not violated unless it creates classifications which are capricious, unreasonable, or arbitrary. Civil Service Merit Board, 816 S.W.2d at 727. If any reason can be conceived to justify the classification, it will be upheld as reasonable. Stalcup v. City of Gatlinburg, 577 S.W.2d 439 (Tenn.1978). © 2020 Thomson Reuters. No claim to original U.S. Government Works. 13 Document received by the TN Court of Appeals. General laws only to be passed.—The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunities, or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 Riggs 941 S.W.2d at 53–54. (emphasis added). In other words, even if a statute contravenes a statute of mandatory statewide application so that it is special legislation triggering Article XI, section 8 inquiry, it may nonetheless pass constitutional muster under an equal protection analysis. The Supreme Court recently provided further guidance on the appropriate analysis under Article XI, Section 8: We have often recognized that the Class Legislation Clause of Article XI, § 8 is similar to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and this Court has previously applied Equal Protection analysis to questions arising under the Class Legislation Clause. See, e.g., Riggs v. Burson, 941 S.W.2d 44, 52 (Tenn.1997). To this end, we have recognized that Article XI, § 8 “guarantees that persons similarly situated shall be treated alike” Evans v. Steelman, 970 S.W.2d 431, 435 (Tenn.1998) (citation omitted), and that it ‘prohibits the General Assembly from suspending the general law or passing any law inconsistent with the general law for the benefit of any individual [or group of individuals]....” Finister v. Humboldt Gen. Hosp. ., Inc., 970 S.W.2d 435, 440 n. 3 (Tenn.1998). *19 However, the Class Legislation Clause does not remove from the General Assembly all power to draw classifications distinguishing among differing groups. “The initial discretion to determine what is ‘different’ and what is ‘the same’ resides in the legislatures of the States, and the legislatures are allowed considerable latitude in establishing classifications and thereby determining what groups are different and what groups are the same.” State v. Smoky Mountain Secrets, Inc., 937 S.W.2d 905, 912 (Tenn.1996) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (internal quotation marks removed)). Therefore, unless the classification “interferes with the exercise of a ‘fundamental right’ or operates to the peculiar disadvantage of a ‘suspect class,’ Article XI, § 8 requires only that the legislative classification be rationally related to the objective it seeks to achieve. See, e.g., Newton v. Cox, 878 S.W.2d 105, 110 (Tenn.1994). City of Chattanooga v. Davis, 54 S.W.3d 248, 276 (Tenn.2001). Therefore, unless a fundamental right or suspect class is involved, legislative classifications are examined to determine whether there is a rational basis for the classification. 10 A. Class Legislation As discussed earlier, the first burden a party challenging a statute as unconstitutional class legislation must meet is to show that the statute contravenes general law of statewide mandatory application. Civil Service Merit Board, 816 S.W.2d at 731. The “general law” being contravened usually means a statute. Id. The State defendants, through the Attorney General, argue, along with Gibson County, that Chapter 770 does not contravene generally applicable law. We agree. The General Assembly's duty to provide a system of public schools is accomplished in general terms in Tenn.Code Ann. §§ 49–1–101 through –104. “There is established a system of public education.” Tenn.Code Ann. § 49–1–101. Significantly, “The system of public education in Tennessee shall be governed in accordance with laws enacted by the general assembly....” Consequently, it is the entire set of statutes governing public schools that establishes the system. That necessarily includes Chapter 770, codified at Tenn.Code Ann. § 49–2–501(b)(2)(C), which is in the chapter on local administration. As shown in the preceding section of this opinion, the General Assembly has designed a plan for statewide education that is based on local school systems as the entities responsible for the delivery of educational services to students in this state. It has also created and authorized various organizational structures for such local school systems, including possibilities that no school systems have chosen to adopt yet (such as combining county school systems). © 2020 Thomson Reuters. No claim to original U.S. Government Works. 14 Document received by the TN Court of Appeals. We need not determine whether the provisions cited by the plaintiffs are laws with mandatory statewide application. As already discussed, article XI, section 8 is commonly cited as one of two provisions which guarantee equal protection of the law under the Tennessee Constitution. The analysis for determining whether a statute suspends a general law in violation of the Tennessee Constitution is similar to that for determining whether there is a rational basis for a classification. As we have held, the statute, and the classification therein, is rationally related to several legitimate legislative interests. Thus, we conclude that it does not violate article XI, section 8 of the Tennessee Constitution. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 *20 Just as the General Assembly has the broadest discretion in designing the statewide system of public education, it necessarily has discretion to authorize various organizational structures within that system. That includes discretion to create new entities or organizational structures and to modify or eliminate others. 11 Similar amendments in furtherance of legislative purpose regarding the provision of a school system are routinely made. While Chapter 770 ratified the situation that existed in Gibson County since 1981, it is not limited by its terms only to that county. For example, while Humboldt disputes that Carroll County falls within the purview of Chapter 770, its description of the Carroll County system indicates otherwise. According to Humboldt, Carroll County has an elected school board and operates a vocational school, a special education program, and a GEC Plus 2 program. Apparently, it does not operate K through 12 schools. If that is the case, all the students in the county in grades kindergarten through twelve are eligible to be served, and apparently are being served, by city and special school systems. Consequently, under Chapter 770, Carroll County would not be required to operate a separate county school system or have a county school board. Similarly, while the situation in other counties may not currently meet the requirement for the application of Chapter 770, the potential exists for that situation to develop in other counties. Although current statute prohibits the creation of new special school districts, Tenn.Code Ann. § 49–2– 501(b)(3), there is no prohibition on increasing the size of existing special school districts. Such decisions are within the legislature's prerogative. Consequently, we cannot find that Chapter 770 contravenes a statute of mandatory statewide application. B. Rational Basis Even if Chapter 770 were found to constitute special or class legislation, it nonetheless would not violate Article XI, Section 8 if it is rationally related to a legitimate legislative interest. In applying the rational basis test, courts presume that the legislature acted constitutionally and will uphold 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 ...” City of Chattanooga, 54 S.W.3d at 276 (quoting Bates v. Alexander, 749 S.W.2d 742, 743 (Tenn.1988); Phillips v. State, 202 Tenn. 402, 410–11, 304 S.W.2d 614, 617 (1957); Knoxtenn Theatres v. McCanless, 177 Tenn. 497, 505, 151 S.W.2d 164, 167 (1941). The party attacking the statute bears the burden of showing that the classification does not rest upon a reasonable basis. Stalcup, 577 S.W.2d at 442; Estrin v. Moss, 221 Tenn. 657, 667, 430 S.W.2d 345, 349, (1968) cert. den. 393 U.S. 318 89 S.Ct. 554 (1969). It is not necessary that the reasons for the special legislation appear on the face of the legislation. Stalcup, 577 S.W.2d at 442; State ex rel Melton v. Nolan, 161 Tenn. 293, 296, 30 S.W.2d 601, 602 (1930). *21 Applying this standard leads to the conclusion that Chapter 770 is supported by a rational basis and furthers a legitimate governmental interest. First, and most obviously, the legislature may prefer to avoid bureaucratic duplication. All students in Gibson County are served by municipal or special school districts which have their own governance structure. Like counties, these school districts are creatures of the legislature and are accountable to the state. It is not reasonable to require that the county operate an administrative structure that would merely duplicate that of the existing school systems. Additionally, where all students in a county are served by municipal or special school systems, with good results, it is not reasonable to require that students be moved to a new school system with different governance. Second, Chapter 770 resolves any potential ambiguity as to whether the county is to act as a “middle man” between the state and the school districts delivering the education. As discussed previously, the state looks to the local school systems for accountability and performance. To the extent the trial court's rulings in this case triggered the adoption of Chapter 770, the legislature has a legitimate interest in clarifying its intent. Finally, if one were to agree with the trial court that without Chapter 770 the GCSSD must be either abolished or otherwise rendered ineffectual, then the avoidance of © 2020 Thomson Reuters. No claim to original U.S. Government Works. 15 Document received by the TN Court of Appeals. Chapter 770 ratified the situation already existing in Gibson County. It clarifies that where all students living in the county attend schools operated by municipal or special school districts, there is no requirement that the county operate a school system. This arrangement is simply another form of organizational structure added to those specifically recognized in the statutory scheme. Consequently, Chapter 770 merely amends the laws whereby the General Assembly has provided for a system of public education. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 Therefore, Chapter 770 clearly has a reasonable basis. For these reasons, we reverse the trial court and find Chapter 770 to be constitutional. 12 Accordingly, the trial court's holdings that Gibson County must operate its own school system and have a school board are reversed. Further, the trial court's order that GCSSD be abolished and its schools transferred to the county school system is also reversed, that remedy having been rendered moot. VIII. COUNTYWIDE PROPERTY TAX The issue left to be resolved is whether the county must levy a countywide property tax to fund the minimum BEP match for the schools in Gibson County, even though there is no county school system, and distribute the proceeds among the systems in the county. Humboldt argues that the BEP requires that counties contribute to the cost of education by levying a countywide property tax for education sufficient to fund the local match for minimum funding under the BEP for all systems in the county. The revenue then must be distributed to the local school systems according to a formula based largely on student population. This method, according to Humboldt, assures that money follows the children, whereas under the method in effect in Gibson County, property tax revenue is collected on property within each local school system and kept by that system. Consequently, schools are supported according to the location of the property taxed. *22 Humboldt argues that only a countywide tax conforms to the requirements of the Small Schools opinions because otherwise, there exists the inherent possibility of inequity among the systems. “Gibson County's failure to fully fund the local BEP match for each district creates a situation where there is substantial fiscal capacity disparity among school districts.” 13 According to Humboldt, without a countywide tax, funding disparities can occur, and the current method of funding schools in Gibson County violates Small Schools I and II because there is no mechanism available to provide for equalization based upon the fiscal capacity of the separate districts within the county. Based on the record before us, we must conclude that it is the potential for inequity, rather than any actual inequity, in educational opportunity that Humboldt complains of. The record is full of uncontradicted evidence showing that the students served by the five (5) school districts in Gibson County are receiving more than the minimum funding required by the BEP formula and that all five (5) of the districts are in compliance with the state requirements under the BEP. When we look to the students in Humboldt, we find that Humboldt spends more per pupil than any of the other districts in the county. A comparison of the quality of education between Humboldt and the GCSSD in terms of accreditation, class size, staff, teacher's salaries, and amount spent per pupil reveals that Humboldt schools outperform the schools of GCSSD. No substantial disparities in educational opportunity have been shown to exist. Disparity of educational opportunity afforded students across the state was the basis for the holding in Small Schools I that the state's system for funding education violated the Tennessee Constitution. The Tennessee Supreme Court made it clear that the Small Schools case was about the quality of and equality of opportunity for education and not “equality of funding.” 851 S.W.2d at 156. The BEP was approved by the Court as meeting constitutional requirements and its basic components discussed. Small Schools II, 894 S.W.2d at 736–37. The objective of providing programs and services to K–12 students across the state is accomplished through the BEP by (1) determining the cost of an adequate basic education for each local school system, 14 (2) allocation of funds to each local school system based on those costs; (3) funding to be provided by the state; and (4) the minimum funding to be provided by local systems. Id. The amount of funds collected locally does not affect the funding provided to a local system. A proportionate share of the total cost of the BEP is assigned to each local system based on its county's relative fiscal capacity. 15 894 S.W.2d at 737. The BEP and the Court allow for differences in funding among the school systems. The BEP provides for a minimum of state and local funding to provide a basic education. Local systems are permitted to collect and spend money beyond the minimum to provide additional programs and services or otherwise improve the quality of education in their systems. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 16 Document received by the TN Court of Appeals. this upheaval in Gibson County is yet another legitimate legislative interest. As the trial court found at one point, keeping GCSSD would maintain the community approval and support the special school district enjoyed and lessen insecurity among the students and parents in GCSSD schools. Confidence in the school system is an important goal, and that confidence had been earned by GCSSD's performance. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 It is important to remember that Gibson County levies and collects a local option sales tax for education that is apportioned among the local school systems according to the appropriate formula. This tax revenue goes toward the local BEP match. There is simply no showing that the method used in Gibson County to raise revenue for schools has resulted in any disparities in educational opportunities. Neither has there been any showing that a countywide property tax levied, collected, and distributed by Gibson County would affect educational opportunity. The local system's minimum share of the BEP would not change. The amount provided by the state for each local system would not change. Local school systems could still raise and spend more than the required BEP minimum. We have not even been shown how a countywide property tax would result in greater funding or educational opportunity for Humboldt schools and students. The Small Schools opinions dealt with the method of distributing funds to achieve more equal educational opportunities and required the state to assume a larger share and to insure distribution of funds raised locally as well as by the state in a manner that would achieve that goal. “Each local government is required by statute to appropriate the funds determined to be its share.” Small Schools II, 894 S.W.2d at 737. The Court did not address taxing methods or how revenue for education was to be raised. “Appropriate” is not the same as tax. While the Court was concerned with how revenue was distributed, it did not delve into taxation, an area largely within the broad discretion of the legislature. Consequently, the failure of Gibson County to levy and collect a countywide property tax for education when it is not required to operate a county school system, when it levies and collects a countywide local option sales tax for schools, and where there is no disparity in educational opportunity among the local school systems attributable to the current method of taxation does not run afoul of any of the constitutional principles established in the Small Schools case. We can find no basis in Small Schools to require Gibson County, as a matter of constitutionally required substantial equality of education, to levy and collect a countywide property tax. Consequently, Humboldt's case must rest upon a statutory requirement that every county levy a countywide property tax for education and allocate the revenues among all school districts in the county. That inquiry, however, must be undertaken in the context of the General Assembly's authority and action in the exercise of its taxing authority. *24 The legislature may not delegate taxing power beyond the extent allowed by the state constitution. Gibson County Special School District v. Palmer, 691 S.W.2d at 549; B.O. Keesee et al. v. The Civil District Board of Education, 46 Tenn. at 128–29. The Tennessee Constitution allows the legislature to delegate its taxing power to counties and towns. Article 2, § 29. B.O. Kessee, 46 Tenn. at 128–29. This taxing power may not be delegated to special school districts. Gibson County Special School District v. Palmer, 691 S.W.2d at 549; Williamson v. McClain, 147 Tenn. 491, 249 S.W. 811, 814– 15 (1923). 16 Statutes governing special school districts and municipal school districts clearly anticipate that property owners within the district will be taxed by private act of the General Assembly. It is also significant that those statutes contradict Humboldt's premise that all property in the county must be taxed at the same rate by the county for schools. Tennessee Code Annotated § 49–2–106 provides that no municipal or special school districts may be created unless certain conditions are met, including: The expressed willingness of the people of such city or special school district, as indicated by a majority of its legal voters in a referendum, to raise local funds which, together with school funds received from the state and other sources, shall be sufficient to provide adequate educational opportunities for their children. Tenn.Code Ann. § 49–2–106(b)(3). The county is not specifically mentioned as a source of revenue. Furthermore, Tenn.Code Ann. § 49–2–107 specifically provides that © 2020 Thomson Reuters. No claim to original U.S. Government Works. 17 Document received by the TN Court of Appeals. *23 That is what is happening in Gibson County. Humboldt, which as a municipality can levy and collect property taxes, levies, collects, and spends more local tax revenue per pupil than is provided to or spent by the other school districts. Humboldt spends substantially more per pupil than GCSSD; it is not required to do so, but has made that choice. GSSD also provides considerable additional funds beyond the required BEP local match. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 The private acts creating the special districts in Gibson County, including the GCSSD, each set the amount of the property tax to be assessed in that district. The legislature, therefore, has directly exercised its authority to levy a property tax to fund education in the special school districts in Gibson County. 17 Judging by the fact that each district is adequately funded, even exceeding the BEP requirement, the inescapable conclusion is that the legislature has levied a property tax sufficient to fund the BEP match for the special school districts in Gibson County. This conclusion is further supported by Tenn.Code Ann. § 67–5–1704(c) and (d) which provides that in counties with a population of less than 50,000, the legislature shall set the property tax rate “necessary” for the special school districts. It is, therefore, the legislature that has assessed the property tax necessary for these special school districts, including the GCSSD. 18 There is nothing in these statutes which speaks in terms of the legislature simply “supplementing” the county tax as suggested by counsel for Humboldt. For these reasons, we find that in Gibson County the legislature has exercised its authority to tax property in the special school districts sufficient to fund the district's share of the BEP. *25 The General Assembly has itself exercised the authority to tax property for schools in the special school districts. This action, and the statutory scheme requiring or authorizing it, contradicts the basic premise of Humboldt's argument: that the county is the instrumentality selected by the legislature to levy and collect the local school systems' share of the BEP. 19 We must analyze the statutes relied on by Humboldt and the trial court in light of the General Assembly's authority and actions in the area of taxing for special school systems. It is also relevant to the proposition that the county is responsible for levying a countywide property tax to fund schools located in the county that the statute authorizing cities like Humboldt to tax property for school purposes recognizes that the county may not provide revenue. The statute governing municipal school tax clearly anticipates that circumstances may exist whereby the county may not levy a countywide property tax. No tax shall be levied and collected in any municipality for and in any year unless the county wherein same is situated shall fail or refuse, on or before the April term of each year, to levy a county tax for common school purposes. Nothing in this section shall be construed to prohibit any municipality from levying a school tax additional to the county school tax. Tenn.Code Ann. § 49–2–401(c). The trial court relied upon Tenn.Code Ann. § 49–2–101(6) for its statutory authority requiring Gibson County to levy a property tax for education since one of the duties of the county legislative body is to: (6) Levy such taxes for county elementary and county high schools as may be necessary to meet the budgets submitted by the county board of education and adopted by the county legislative body. The question is whether this statute requires Gibson County to levy a property tax for education. There are several ways to interpret this statute and under each interpretation Gibson County is not in violation of it. First, we do not believe this duty to impose a tax requires that a property tax also be assessed when the legislature has already levied the tax, in the case of special school districts, and delegated its authority, in the case of municipal school districts, such that the BEP funding level is achieved. The legislature itself assessed the rate of the property tax in the private acts creating the GCSSD, the TSSD, the BSSD, and the MSSD. Obviously, the property tax rate assessed by the legislature for these special school districts is sufficient to fund education since all spend more for education than the BEP minimum. 20 Therefore, it is not “necessary” for the county to levy a property tax. Second, since Gibson County is not required to operate schools or to have a board of education, there are no county © 2020 Thomson Reuters. No claim to original U.S. Government Works. 18 Document received by the TN Court of Appeals. property owners in special school districts must pay the property taxes levied by the private act creating the special school districts. It is clear, contrary to Humboldt's argument, a condition of municipal and special school districts is that schools in those districts be supported largely by taxes on the property in that district. City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 existent budget. 21 For these reasons, we do not believe Tenn.Code Ann. § 49–2–101(6) places an obligation on Gibson County to assess a countywide property tax to fund the minimum BEP share for all the local school systems in the county. *26 Chapter 3 of Title 49 deals with “Finances” for education. Humboldt relies on several statutes in that chapter. Part 3 (the Education Finance Act) begins with the announcement that it establishes the procedure for “the funding of education for the public schools, grade kindergarten through twelve (K–12).” Tenn.Code Ann. § 49– 3–303(a). Part 3 establishes the only procedure for funding K– 12 education. Tenn.Code Ann. § 49–3–304. The distribution of state funds is governed by Tenn.Code Ann. § 49–3–314, and such funds are distributed directly to the local education agencies or local school systems. Tenn.Code Ann. § 49–3– 315(b)(2). Tenn.Code Ann. § 49–3–315 is specifically relied on by Humboldt, and it provides in pertinent part: (a) For each LEA there shall be levied for current operation and maintenance not more than one (1) school tax for all such grades as may be included in the LEA. Each LEA shall place in one (1) separate fund all school revenues for current school operation purposes received from the state, county and other political subdivisions, if any.... All school funds for current operation and maintenance purposes collected by any county ... shall be apportioned by the county trustee among the LEAs therein on the basis of the WFTEADA maintained by each, during the current year. (emphasis added). This statute does not require every county to levy a countywide property tax for all school systems located within the county. It authorizes one levy for each LEA or school system, regardless of what entity makes the levy. It speaks in terms of school taxes, not property taxes. It specifically recognizes (“if any”) that there may be no revenue from the county. It establishes the method of distribution of any school taxes that may be collected by the county. Gibson County distributes its sales tax for education in accordance with that method. Notwithstanding the exclusive method of funding language in Tenn.Code Ann. § 49–3–304, the statutes comprising the BEP, Tenn.Code Ann. §§ 49–3–351 et seq., establish “the only procedure for the funding of the BEP, kindergarten through grade twelve (K–12)” in the form of the formula prescribed. Tenn.Code Ann. § 49–3–351(b). These provisions require each LEA to establish a fund for “all appropriations from all sources to fund education.” Tenn.Code Ann. § 49–3–352(b). State funds under the BEP formula are distributed directly to each LEA. State and local contributions are defined as percentages of the cost of components. Tenn.Code Ann. § 49– 3–356. That statute also provides: Every local government shall appropriate funds sufficient to fund the local share of the BEP. No LEA shall commence the fall term until its share of the BEP has been included in the budget approved by the local legislative body. This statute deals with appropriation, not raising revenue or taxing. Obviously, the reference to a school budget approved by the local legislative body applies only to those local school systems whose budgets must be approved by such a body. Although the reference to “local governments” creates some ambiguity, 22 we cannot read the statute as requiring that a county that operates no county schools is required to levy a countywide property tax for schools. In the context of the organizational structure of special school districts and the authority of the General Assembly to levy taxes for those districts, we interpret local government to mean the governing body of the system with authority to appropriate revenue. The statute does not address how revenue is raised. Each local school system in Gibson County collects, from the property tax levied by the General Assembly or the City of Humboldt, from sales tax revenue from the county, and elsewhere, the money needed for its local match under the BEP. We think that is the purpose of the language quoted. *27 We have examined the other statutes cited by Humboldt, and we find nowhere in these statutes a clear directive that © 2020 Thomson Reuters. No claim to original U.S. Government Works. 19 Document received by the TN Court of Appeals. schools and no budget for county schools to fund. Therefore, Gibson County cannot be faulted for failing to fund a non- City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 counties must levy a countywide property tax to fund schools when the county operates no school system and when all schools in the county are funded through property tax levies by the General Assembly or the municipality operating a local system and with the county sales tax. It would take a clear statement to overcome the statutes, including private acts, authorizing or requiring the General Assembly to levy taxes on property located in special school districts, statutes requiring that people in a special school district or a municipal school district raise local funds for schools in that district, and statutes recognizing the possibility that a county may not in fact provide funds to municipal or special school districts. We find no such clear statement in the statutes cited. Humboldt argues that Gibson County should be required to levy a countywide property tax for schools because every other county does so. While uniformity has its benefits and is a desirable goal in many systems, it is the prerogative of the legislature, not the courts, to make that decision. The basic components of the BEP achieve equality of educational opportunity through funding. While the General Assembly could have required uniformity in how those funds are raised, it did not. Perhaps it thought it advisable to leave taxing methods alone in view of the varying entities that can provide education, their varying organizational structures, and the limitations on their taxing authority. We must conclude that there is no constitutional or statutory requirement that Gibson County levy, collect, and distribute a countywide property tax to fund the municipal and special school systems within the county. 23 As a result, we reverse the trial court's holding to the contrary. The trial court's judgment is reversed. Costs are taxed to the appellees, the City of Humboldt, its Mayor and Board of Aldermen of the City of Humboldt, for which execution may issue if necessary. All Citations Not Reported in S.W.3d, 2005 WL 2051284 Footnotes 2 3 4 5 6 7 8 9 10 Portions of the record and the parties' briefs suggest that all students in Carroll County are also served by special or other school districts and that Carroll County, like Gibson County, operates no K–12 schools. Carroll County operates certain other programs, such a vocational training, and collects a countywide property tax for education. The Humboldt City School System was later allowed to intervene. However, Gibson County also thinks the effort is misguided since, according to its calculations, a countywide property tax sufficient to meet the minimum BEP requirement would result in an eight cent per $100 increase in the tax rate in Humboldt. This is a reference to Tenn.Code Ann. § 49–2–101(8). In Gibson County Special School District v. Palmer, 691 S.W.2d 544 (Tenn.1985), our Supreme Court addressed the constitutionality of the referendum provisions in a 1984 Private Act that allowed the property tax rate of the GCSSD to be increased. This 1984 Private Act, in effect, amended the 1981 Private Act creating the GCSSD by raising the property tax rate. The court found the referendum provision to be unconstitutional but applied the doctrine of elision to uphold the remaining provisions of the 1984 Act. Id. at 551–52. Humboldt does not renew this argument on appeal. The law is well-settled to the contrary. Stalcup v. City of Gatlinburg, 577 S.W.2d 439, 442 (Tenn.1978); Board of Education of Memphis v. Shelby County, 207 Tenn. 330, 373–74, 339 S.W.2d 569 (1960) (opinion on pet. to rehear). Article I, § 8 and Article XI, § 8. The Court warned that the exclusion of teacher salaries put the entire plan at risk functionally and, therefore, legally. 894 S.W.2d at 738. At the core of this decision was the Court's finding that teachers are the most important component of any education plan and a major part of any education budget, dismissing the State's argument that teacher salaries did not affect the quality of instruction or educational opportunity. While the Supreme Court found that the benefits of local control do not justify the disparities in educational opportunity shown to exist in Small Schools I, in large part because local control did not require the funding scheme that created the disparities, it recognized the value of such control. Small Schools I, 851 S.W.2d at 154–55. No party to this matter attempted to argue that a heightened level of scrutiny was appropriate, and all parties cast the issue in terms of whether or not Chapter 770 was supported by a rational basis. No fundamental right or suspect class © 2020 Thomson Reuters. No claim to original U.S. Government Works. 20 Document received by the TN Court of Appeals. 1 City of Humboldt v. McKnight, Not Reported in S.W.3d (2005) 2005 WL 2051284 12 13 14 15 16 17 18 19 20 21 22 23 A county's fiscal capacity is based on sales tax base, property tax base, and income. Each county's capacity is calculated as a percentage of the total capacity of all counties. 894 S.W.2d at 737. All parties and the trial court appear to have assumed that a special district has the authority to levy a tax and thus the issue became whether the county or the special school district had the obligation to levy the property tax to fund education in the first instance. As for the municipal school district in Gibson County, the legislature delegated to Humboldt its authority to levy a property tax to fund education. Tenn.Code Ann. § 49–2–401. Tenn.Code Ann. § 67–5–1704(d) provides it is not applicable to any county of the first, second, or third class as defined in Tenn. code Ann. § 8–24–101. Tenn.Code Ann. § 8–24–101 defines these three (3) classes as having populations of over Fifty Thousand (50,000) people according to the most recent federal census. See Tenn.Code Ann. § 8–24–101(a) (1)(2)(3) and (b). The 2000 census population for Gibson County was Forty–Eight Thousand One Hundred Fifty–Two (48,152), thus making Tenn.Code Ann. § 67–5–1704 applicable. It is important to note that the issue is not whether a county must assess a countywide property tax to fund education but whether a county must also do so when the entire county is already being taxed by the legislature or municipality. There is no question that absent taxation by the legislature the county would bear this responsibility. As discussed earlier, Tenn.Code Ann. § 67–5–1704(c) specifically requires the legislature to “set the tax rate for [each] special school district at a level to generate the ad valorem revenue necessary for such special school district.” We also note that the county is collecting a local option sales tax, and the statute does not prescribe a property tax. School districts are local governmental entities. Tenn.Code Ann. § 29–20–102(3)(A). Humboldt has brought this case as one based on constitutional principles and statutes regarding education with the goal of ensuring protection of students' rights to equal educational opportunity. It appears to us, however, that much of the real complaint is about taxation, taxpayers, and those who levy taxes. For example, Humboldt argues that “equal educational opportunity requires that each student ought to have equal access to funding and, if a school district is required to levy a higher tax rate on its citizens than others within the county, then equal access has been impaired.” This argument demonstrates what we perceive as an attempt to transform a tax issue into an education issue. To resolve the issues as presented, we need not examine the information presented about tax rates, tax base, and tax yield in the various districts and need not determine whether any taxpayer disparity actually exists. We simply note that the kind of disparity Humboldt complains of was recognized in the statutes allowing the creation of municipal and special school systems. In any event, it has not been shown to have any effect on educational opportunities of the students. End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 21 Document received by the TN Court of Appeals. 11 is implicated by Chapter 770. There is no fundamental right to a particular administrative structure to deliver public education. There is no fundamental right to have the county, as opposed to a local school system operate the schools and be accountable to the state for that operation. Furthermore, there is no evidence in the record that Chapter 770 adversely affects any suspect class. For example, Humboldt places great significance in parts of its brief on legislation adopted in 1982 that prohibited the creation of new special school districts after April 30, 1982. Tenn.Code Ann. § 49–2–501(b)(3). That legislation also abolished existing special school districts that were not taxing districts. Tenn.Code Ann. § 49–2–501(a)(1). Statute also limits the number of special school districts in counties with specified populations. Tenn.Code Ann. § 49–2–501(b). Alternatively, Humboldt argues on appeal that Chapter 770 never came to bear on the GCSSD since the trial court ordered the GCSSD abolished in May of 2002 and Chapter 770 did not become effective until two months later, in July of 2002. In fact, the trial court's third remedy order was entered the same day Chapter 770 became effective and remained subject to modification and to post-judgment motions, which is what were filed herein. As Humboldt asserts, the fiscal capacity component of the BEP is measured on the basis of the county since statistical data is not available for smaller units. This calculation involves a formula that takes into account the variations in costs across the state. Exira Community School Dist. v. State, 512 N.W.2d 787 (1994) 89 Ed. Law Rep. 965 EXIRA COMMUNITY SCHOOL DISTRICT, Aaron Petersen, A Minor Child, by Curtis Petersen, His Father and Next Friend, and Curtis Petersen, Matthew Rasmussen, Toni Rasmussen, Joseph Rasmussen, Trisha Rasmussen, Minors by Mike Rasmussen, Their Father and Next Friend, and Mike Rasmussen, Appellants, v. STATE of Iowa, Iowa Department of Education, Audubon Community School District, Atlantic Community School District, Kenneth Slothouber, Auditor of Audubon County, and Peggy Smalley, Treasurer of Audubon County, Appellees. No. 93–194. Feb. 23, 1994. Rehearing Denied March 24, 1994. Synopsis School district filed petition for declaratory judgment and injunctive relief against state, department of education, and two larger school districts, prohibiting transfer of property tax revenues to larger school districts to pay charges for students who had transferred under open enrollment statute. The District Court, Audubon County, J.C. Irvin, J., held that open enrollment statute was constitutional. School district appealed. The Supreme Court, Lavorato, J., held that: (1) school district lacked standing to challenge statute, and (2) statute did not violate due process or equal protection clause. Affirmed. Attorneys and Law Firms *789 Thomas R. Eller of Eller, Brink & Sextro, Denison, for appellants. Bonnie J. Campbell, Atty. Gen. and Christie J. Scase, Asst. Atty. Gen., for appellees State of Iowa and Iowa Dept. of Educ. Thomas W. Foley of Nyemaster, Goode, McLaughlin, Voigts, West, Hansell & O'Brien, Des Moines, for appellee Audubon Community School Dist. Kenneth J. Fossen, Atlantic, for appellee Atlantic Community School Dist. Brian P. Anderson, Asst. County Atty., for appellees Kenneth Slothouber and Peggy Smalley. Considered by LARSON, P.J., and CARTER, LAVORATO, NEUMAN, and TERNUS, JJ. Opinion LAVORATO, Justice. This case pits a small school district against two larger school districts in a David and Goliath battle over the constitutionality of the financing provision in our state's open enrollment statute. See Iowa Code § 282.18(8) (1991). Exira Community School District (Exira), along with two taxpayers who live in the district and their children who attend school there, appeal. Unless the context dictates otherwise, for the balance of this opinion, we refer to Exira, the two taxpayers, and their children collectively as appellants. The appellants challenge a district court order (1) denying Exira standing, and (2) upholding the constitutionality of the financing provision in section 282.18(8) against due process and equal protection challenges. Because we conclude Exira has no standing and the financing provision is constitutional, we affirm. I. Background Facts. Iowa's open enrollment law allows taxpayers who live in one school district to enroll their children in school districts outside the district in which they live. As a practical matter, the 1990–91 school year was the first time Iowa parents could take advantage of the open enrollment law. During that school year, forty students living in Exira open enrolled to either the Audubon Community School District (Audubon) or the Atlantic Community School District (Atlantic). Thirty-six of the forty students chose Audubon; the rest chose Atlantic. Most of these students gave “better curriculum” as their reason for the change. During this same school year, five students open enrolled to Exira from other districts. Exira has about 350 to 400 students. Audubon has about 900 students, while Atlantic has in excess of 1500. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Document received by the TN Court of Appeals. 512 N.W.2d 787 Supreme Court of Iowa. Exira Community School Dist. v. State, 512 N.W.2d 787 (1994) 89 Ed. Law Rep. 965 Records for the 1991–92 school year show that seven students open enrolled into Exira and forty-seven students open enrolled out of Exira to other school districts. Since it last paid Audubon for the three quarters of the 1990–91 school year, Exira has refused to pay any further open enrollment tuition either to Audubon or to Atlantic. II. Background Proceedings. The appellants filed a petition for declaratory judgment and injunctive relief against the State, the Iowa Department of Education, Audubon and Atlantic school districts, the auditor of Audubon County, and the treasurer of Audubon County. The petition sought an injunction to prohibit the transfer of Exira property tax revenues to Audubon *790 and Atlantic to pay charges for students who had transferred under the open enrollment statute. The main relief sought was a declaratory ruling that section 282.18(8) was unconstitutional as applied to the appellants. This constitutional challenge was limited to that part of section 282.18(8) that required transfer of these property tax revenues. The following day, the district court issued the requested injunction ex parte. Later the State moved to dismiss, contending that Exira lacked standing. Atlantic joined in this motion. Audubon also counterclaimed for the open enrollment tuition payments that Exira owed it for the 1990–91 and 1991–92 school years. By agreement the appellants' request for temporary injunction and the motions to dismiss were joined with the trial on the merits. The parties also agreed to continue trial on the counterclaim until after the district court resolved the appellants' claims. Following trial the district court upheld the constitutionality of section 282.18(8) and dissolved the temporary injunction. Later the temporary injunction was reinstated until resolution of Audubon's counterclaim. The district court ultimately III. Standing. The well-settled rule in Iowa is that school districts, as political subdivisions of the state, lack standing to mount a constitutional attack against a state statute. See Southeast Warren Community Sch. Dist. v. Iowa Dep't of Pub. Instruction, 285 N.W.2d 173, 176 (Iowa 1979). This is so because [a school district] is a legislative creation.... It is not a “person,” within the meaning of any bill of rights or constitutional limitation. It has no rights, no functions, no capacity, except such as are conferred upon it by the legislature. Boyd v. Johnson, 212 Iowa 1201, 1210, 238 N.W. 61, 65 (1931). Exira concedes this point, but insists that this court has recognized an exception to the general rule for cases of “great public importance.” Exira thinks the disbursement of school funds is just such a case. In support Exira cites Board of Supervisors v. Iowa Dep't of Revenue, 263 N.W.2d 227 (Iowa 1978). In Board of Supervisors v. Iowa Department of Revenue, this court did say that “public importance” was recognized by some courts as an exception to the general rule of no standing. Id. at 232–34. But the court also expressly held that it was unnecessary to decide whether it should adopt such an exception. Id. at 234. This was so because there were parties to the suit who could satisfy the traditional test of constitutional standing: the alleged constitutional defect must affect the party. Id. See State v. Gates, 306 N.W.2d 720, 723 (Iowa 1981) (litigant not personally affected by alleged constitutional defect lacks standing to assert allegation on behalf of others in hypothetical situations). Those parties were taxpayers and property owners whose interests were allegedly infringed by the challenged legislation. Board of Supervisors, 263 N.W.2d at 234. Because those parties were in a position to raise the constitutional challenges themselves, the “public importance exception” to the general no standing rule was not even considered. Id. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Document received by the TN Court of Appeals. Under the financing scheme of the open enrollment statute, the receiving school district sends a quarterly statement to the sending school district. The statement requests tuition payments for those students of the sending district who are attending school in the receiving district. Audubon billed Exira. After some foot dragging, Exira paid most of the open enrollment tuition owed Audubon for the first three quarters of the 1990–91 school year. But Exira withheld the balance despite Audubon's repeated demands for payment. entered judgment against Exira in favor of Audubon for the open enrollment tuition payments. This appeal followed. Exira Community School Dist. v. State, 512 N.W.2d 787 (1994) 89 Ed. Law Rep. 965 We conclude that the general rule controls here, leaving Exira without standing to contest the constitutionality of the financing provision in section 282.18(8). The district court correctly dismissed Exira as a party to the suit. IV. The Constitutional Claims: Substantive Due Process and Equal Protection. We reach the merits of the constitutional claims because the remaining appellants—the taxpayers who live within the Exira school district and their children who attend *791 school there—do have standing to challenge the constitutionality of section 282.18(8). Because constitutional claims are alleged, our review is de novo in light of the totality of the circumstances. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993). A. Iowa's school financing scheme. To understand better the appellants' constitutional claims, we need to explore somewhat the structure of Iowa's school financing scheme. Local property taxes and state foundation aid are the two primary sources of financing available to local Iowa school districts. What the state contributes is not static but depends upon the amount of funds generated through local taxation and the number of students living in each school district. As the district court found, Iowa's school finance formula is pupil-driven. That becomes apparent when one studies the formula for funding that portion of a school district's budget allotted to educating all students living in the district. Before describing the specifics of the formula, we need to explain some terms. Because of the complexity of school financing in Iowa and the number of variables involved, our explanation will be general and limited to financing of regular education programs. The district cost per pupil is the total cost of educating all students in a district divided by the number of students in the district. The amount changes each year, but under current law it cannot exceed 110% of the state cost per pupil. The state cost per pupil is similarly calculated. The state determines what it will cost to educate all the children in the state in a given year. This figure is the sum of the budgets for all school districts. The total sum is divided by the total school enrollment in the state. The resulting figure is the state cost per pupil. The formula for determining how a district generates money to fund that portion of its budget allocated to educating all students in the district follows three steps: First, each year a school must levy and collect a foundation property tax of $5.40 per $1000 of assessed valuation on all taxable property in the district. See Iowa Code § 257.3(1). Second, in addition to this property tax, each district receives state foundation aid “in an amount per pupil equal to the difference between the amount per pupil of foundation property tax in the district, and the combined foundation base per pupil or the combined district cost per pupil, whichever is less.” Iowa Code § 257.1(2). Last, a school district must impose an additional tax levy sufficient to fund the combined district cost for the budget year. See Iowa Code § 257.4(1). The first step generates from a uniform tax levy a part of the budget for educating students in a particular district. That figure varies from district to district because the assessed valuation of the taxable property is different from district to district. In the second step, the State guarantees through state aid that every student's education will be funded up to a level that is roughly 83% of the state cost per pupil. This part of the formula attempts to equalize the amount of funds each district has available to finance the education of students living in the district. For example, districts with a high property tax base receive less state foundation aid because these districts generate more local property taxes per pupil. In contrast, districts with a low property tax base receive more state foundation aid because these districts generate less local property taxes per pupil. In the last step, the district must levy local taxes to fund the difference between the 83% state foundation aid level and the © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Document received by the TN Court of Appeals. Here the district court correctly likened the individual appellants to the taxpayers and property owner-plaintiffs in Board of Supervisors v. Iowa Department of Revenue: the individual appellants here—like the taxpayers and property owners in that case—are alleging interests that are adversely affected by the challenged provision. These appellants are the real parties in interest and are fully capable of raising the due process and equal protection challenges asserted. Exira Community School Dist. v. State, 512 N.W.2d 787 (1994) 89 Ed. Law Rep. 965 Whereas the first step in the formula remains constant, the last two steps are calculated on a per pupil basis. That is why the formula is described as pupil-driven. *792 The formula is designed to equalize the amount of funds available to finance the education of every child in the state regardless of where the child lives. The amount will not be exactly equal because each district has the option under the third step of the formula to levy taxes to bring the district cost per pupil to a level that is 110% of the state cost per pupil. The state cost per pupil is the amount necessary to provide a regular education for students, that is, what the state considers to be an adequate education. The first and third steps in the formula are consistent with the historical notion that a local school district should have control over how children in its district are educated. In addition, the third step gives the district leeway to say, within limits, it is going to go beyond what the state considers to be an adequate education. The district cost per pupil for the 1990–91 school year for each of the three districts involved demonstrates how close the equalization is. For that school year, Exira's district cost per pupil was $3044, Audubon's was $3017, and Atlantic's was $2978. B. The merits. That brings us to the constitutional questions we must answer in this case. That portion of the financing scheme for open enrollment under attack is found in the following italicized language of Iowa Code section 282.18(8): A pupil participating in open enrollment shall be counted, for state school foundation aid purposes, in the pupil's district of residence. A pupil's residence, for purposes of this section means a residence under section 282.1. The board of directors of the district of residence shall pay to the receiving district the lower district cost per pupil of the two districts, plus any moneys received for the pupil as a result of non-English speaking weighting under section 442.4, subsection 6, for each school year. The district of residence shall also transmit the phase III moneys allocated to the district for the full-time equivalent attendance of the pupil, who is the subject of the request, to the receiving district specified in the request for transfer. (Emphasis added.) The appellants make no challenge to the constitutionality of the open enrollment law per se. They concede that open enrollment has a proper and valid legislative purpose. They also do not challenge that part of section 282.18(8) which requires transfer to the receiving district of that portion of the “district cost per pupil” represented by state foundation aid. What the appellants do challenge is that part of section 282.18(8) which requires transfer to the receiving district of that portion of the “district cost per pupil” represented by the local real estate tax revenues—steps one and three of the formula. Simply put, the appellants think it is unconstitutional to require local real estate tax revenues for open enrollment students to follow those students to the receiving districts. As they did in the district court, the appellants raise substantive due process and equal protection challenges to section 282.18(8) under the federal and Iowa Constitutions. The appellants believe that section 282.18(8) is not facially invalid but invalid only as applied to them. The federal Due Process Clause prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Iowa Due Process Clause mandates that “no person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const. art. I, § 9. The Equal Protection Clause of the Fourteenth Amendment to the federal Constitution prohibits states from “deny[ing] ... any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The comparable provision in the Iowa Constitution prohibits laws that “grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” Iowa Const. art. I, § 6. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Document received by the TN Court of Appeals. state's cost per pupil. If the district cost per pupil is higher than the state's cost per pupil, the district has the option to levy taxes to fund this entire difference, a part of it, or none of it. Exira Community School Dist. v. State, 512 N.W.2d 787 (1994) 89 Ed. Law Rep. 965 The appellants do not allege that section 282.18(8) infringes upon a fundamental right or creates a suspect class, either of which would trigger a strict scrutiny, non-deferential, analysis. City of Maquoketa v. Russell, 484 N.W.2d 179, 184 (Iowa 1992) (allegation of fundamental right infringement triggers strict scrutiny analysis); Hearst Corp. v. Iowa Dep't of Revenue & Fin., 461 N.W.2d 295, 305 (Iowa 1990) (strict scrutiny analysis triggered by allegation of inherently suspect class). Our standard for review then is the rational basis test for both the substantive due process and equal protection challenges. Kent v. Polk County Bd. of Supervisors, 391 N.W.2d 220, 224–25 (Iowa 1986). We have explained the rational basis test under a substantive due process challenge this way: There is no dispute about the rule that, to be constitutional, [a statute] must have a definite, rational relationship to a legitimate purpose.... A party who challenges [a statute] has the burden of proving it unconstitutional, and must negate every reasonable basis upon which the ordinance may be sustained. This means that the challenger has the burden of producing the evidence, and persuading the court, of the [statute's] lack of rational nexus with its supposed purpose. .... ... If reasonableness of the [statute's] nexus to its purported end is fairly debatable, it must be allowed to stand. Id. at 225 (citation omitted). In the same case—Kent—we explained the rational basis test for equal protection challenges: [The challenged classification must be sustained] unless the challenging party can demonstrate that it is patently arbitrary and bears no rational relationship to a legitimate governmental interest. Under the rational basis test, a legislative classification is upheld if any conceivable state of facts reasonably justify it. Id. (citation omitted). A finding that section 282.18(8) has a rational basis for substantive due process purposes also defeats the appellants' equal protection challenge. See Scott v. City of Sioux City, 736 F.2d 1207, 1216 (8th Cir.1984). The purpose of our open enrollment statute is stated in Iowa Code section 282.18(1): It is the goal of the general assembly to permit a wide range of educational choices for children enrolled in schools in this state and to maximize ability to use those choices. It is therefore the intent [of the legislature] that this section be construed broadly to maximize parental choice and access to educational opportunities which are not available to children because of where they live. As we noted earlier, the appellants have no quarrel with the open enrollment law per se. They do not challenge its constitutionality. Their substantive due process challenge is to the way the state has chosen to finance open enrollment. On this point their argument is simple. They believe the financing mechanism in section 282.18(8) is unreasonable because it requires a transfer of locally generated tax revenues without a showing of need. What the appellants want is a financing scheme that would require a showing that the receiving district “needs” the tax dollars more than the sending district. Otherwise—the appellants argue—a significant loss of students could ultimately destroy a sending district. The evidence shows that Exira raised about 50% of its funds from state aid and 50% from local real estate taxation. As a result of open enrollment, Exira transferred about $70,000 from local property tax revenues to the receiving districts for the 1991–92 school year. This represented a $70,000 shortfall © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Document received by the TN Court of Appeals. We usually deem the federal and state due process and equal protection clauses to be identical in scope, import, and purpose. *793 Bruns v. State, 503 N.W.2d 607, 609–11 (Iowa 1993). We do so here. Exira Community School Dist. v. State, 512 N.W.2d 787 (1994) 89 Ed. Law Rep. 965 Exira introduced evidence through its superintendent to show how this reduction translated into financial trouble for the district. For example, the district could not *794 hire a full-time librarian. In the future elementary teachers will be required to take on more duties because funds will not be available to pay teachers' aides. The district will not be able to hire a curriculum coordinator for computers and other modern learning devices. This jeopardizes the district's ability to offer current technological training to students. The district has been unable to hire a nurse on a full-time basis. Finally, the district has reduced its professional staff. According to the superintendent, the effect of section 282.18(8) could jeopardize the district's very existence. Exira thinks this harm might be constitutionally permissible if the funds were needed at the receiving schools. Exira notes, however, that the evidence is clear there is no such need. The appellees, on the other hand, say the record does not support the appellants' claim that Exira needs the funds to survive. They point out that Exira follows sound fiscal management principles and operates with significant unspent balances. The record does reflect that Exira's unspent balances have actually increased since open enrollment went into effect. Exira's unspent balance for the school year 1987–88 was $158,537; for the school year 1988–89 it was $191,156; for the school year 1989–90 it was $237,916, and for the school year 1990–91 it was $252,422. Appellants' complaint boils down to this. Before open enrollment, the state had achieved through the financing formula educational equality for every student in Iowa. During the first year of open enrollment, Exira experienced a $70,000 loss in tax revenues necessary to educate the students remaining in the Exira school district. This resulted in a substantial disparity in funds available for education between Exira and Audubon. This disparity has disturbed the educational equality previously existing. The complaint assumes that a school financing system must achieve such equality before a court can say the system has a rational basis. The United States Supreme Court has rejected such a notion in the context of an equal protection challenge to a state school financing scheme. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). In Rodriguez, the Supreme Court upheld Texas' system of financing its public schools against an equal protection challenge. Funds for the public schools came from two sources: state and local taxation. State aid accounted for about half of the financing and the balance came from local property taxes. The state aid was aimed at guaranteeing a certain level of minimum education for all children in the state. However, any equality that might be achieved stopped with state aid because of the substantial disparity in the value of assessable property between local school districts. As a result, substantial interdistrict disparities in school expenditures existed throughout the state. For example, in a typical school year, one district had total revenues of $594 per pupil while a less affluent district had only $356 per pupil. The Rodriguez Court came to the following conclusions that have significant ramifications for school financing in this country because, at the time, most of the other state school financing schemes were like Texas'. There was no showing —as alleged—that Texas' financing system disadvantaged a suspect class by discriminating on the basis of wealth. Rodriguez, 411 U.S. at 18–28, 93 S.Ct. at 1288–94, 36 L.Ed.2d at 34–40. Although important, education is not a fundamental right. Id. at 35, 93 S.Ct. at 1297, 36 L.Ed.2d at 44. Under a rational basis analysis, Texas' system of financing bore a rational relationship to a legitimate state interest in two ways. First, the system assured a basic education for every child in the state. Second, the system permitted and encouraged a large measure of local participation in, and control of, each district's schools. Id. at 49, 93 S.Ct. at 1305, 36 L.Ed.2d at 52. After finding this rational basis, the Rodriguez Court came to two other conclusions. First, any inequality in expenditures between districts resulting from varying property values within the districts did not render the system “so irrational as to be invidiously discriminatory.” Id. at 55, 93 S.Ct. at 1308, 36 L.Ed.2d at 55. And, second, “any scheme of local taxation—indeed the very existence of identifiable local governmental units—requires *795 the establishment of jurisdictional boundaries that are inevitably arbitrary.” Id. at 53–54, 93 S.Ct. at 1307, 36 L.Ed.2d at 55. Here the legislature has expressly stated its purpose in enacting open enrollment legislation—to give children access to educational opportunities not available to them because of where they live. The appellants virtually concede that access to educational opportunities through open enrollment © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Document received by the TN Court of Appeals. in available spending for students remaining in the Exira school district. Exira Community School Dist. v. State, 512 N.W.2d 787 (1994) 89 Ed. Law Rep. 965 In addition, section 282.18(8) rationally fosters this purpose by supplying a financing mechanism that maintains per pupil equity in the amount of funds available to educate all students in this state. In short, each student has roughly the same amount of money for his or her education wherever that student is educated. We are convinced that Iowa's financing mechanism does a far better job of maintaining per pupil equity than the one under attack in Rodriguez. That being the case, one can readily see that Iowa's financing mechanism in section 282.18(8) easily passes constitutional muster. The appellants do not even pretend to argue that the financing mechanism—even with the $70,000 shortfall to Exira—is preventing Exira from providing an adequate education to the students who remain. Clearly, under this record, it does not. Up to this point, we have been addressing the appellants' relative need argument which is the lynchpin of their constitutional challenges. Implicit in this argument is that the financing mechanism in section 282.18(8) should ensure the continued existence of a local school district. In our view that is the wrong focus. In devising a pupil-driven formula, the legislature has made a policy decision. That decision is that every student will have the same amount of funds available for his or her education wherever the student is educated. As the district court wisely noted, not only does the appellants' relative need argument overlook the basis of Iowa's educational finance system, it also presumes that local property tax revenues are intended to be used to maintain and support the local school rather than to educate the resident students of the district.... Local property taxes are not collected for the purpose of supporting a local school, but for the purpose of educating the resident students of a school district. [Section 282.18(8) ], by requiring a resident school district to pay the lower district cost per pupil to a school which educates its resident pupils under the open enrollment option, merely requires the resident district to fund the education of its resident students and allows the receiving district to continue to devote the funds it generates to the education of its resident students. (Emphasis added.) In the final analysis, the appellants' relative need argument is really all about a school district's alleged due process right to exist. It is also about a school district's alleged equal protection right to be treated the same as a district fortunate enough to survive in today's competitive environment surrounding public education. The short answer to this is that the appellants incorrectly assume that school districts have constitutional rights. School districts, as such, are not people and for that reason have no constitutional rights. If it chooses to do so, the legislature can—without constitutional impediment—terminate a school district's existence. And when the legislature enacted open enrollment legislation, it knew full well that its ultimate effect might mean the demise of some smaller schools. Despite this knowledge, the legislature made a policy decision—right or wrong—to go with open enrollment. It is not for us to judge the wisdom of such a policy. That was a legislative call. In yielding the call to the legislative branch of government, we are not insensitive to the feelings and strongly-held views of patrons of smaller schools, such as the Exira school. We recognize that individuals and families sense a way of life is in the balance *796 and vehemently challenge any assumption that centralization of schools improves the quality of education. The proper forum for this debate is however not in the courts, but in the other branches of state government. Our clear duty is to interpret and apply the law given to us, and not to develop or choose among schemes for public education. The appellants might argue that our response does not answer the Exira students' constitutional challenges. For substantive due process purposes, the argument is that any funding mechanism that deprives students remaining in Exira the “right” to be educated there deprives them of property without due process. For equal protection purposes, the argument is © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Document received by the TN Court of Appeals. is a legitimate state purpose, and we hold that it is. Section 282.18(8) serves this purpose by providing a financing mechanism for educating students who open enroll out of their districts. Exira Community School Dist. v. State, 512 N.W.2d 787 (1994) 89 Ed. Law Rep. 965 We know of no authority that says a student's desire to be educated in a certain school district rises to the level of a right protected by due process. Rather, a student has a due process right to an adequate education. That right—as we have demonstrated—is furthered, not diminished, by the funding mechanism in section 282.18(8). Nor do we think such students are treated differently for equal protection purposes. We say this because section 282.18(8) assures every student roughly the same amount of funds for his or her education wherever that student is educated. End of Document V. Disposition. We conclude section 282.18(8) does indeed have a rational basis. This disposes of the appellants' substantive due process challenge; it likewise disposes of the appellants' equal protection challenge. AFFIRMED. All Citations 512 N.W.2d 787, 89 Ed. Law Rep. 965 © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 Document received by the TN Court of Appeals. that such a deprivation treats Exira students differently from those who desire to open enroll elsewhere. Kelley v. Shelby County Board of Education, 751 Fed.Appx. 650 (2018) 362 Ed. Law Rep. 797, 2018 IER Cases 349,159 Marcia KELLEY; Ida Steinberg; Laverne Jackson; Paul Banks; Dale Thompson, Plaintiffs-Appellants/Cross-Appellees (17-6141/6152), Plaintiffs-Appellees (17-6070), Memphis-Shelby County Education Association, Plaintiff-Appellant/Cross-Appellee (17-6141/6152), Plaintiff-Appellant (17-6070), v. SHELBY COUNTY BOARD OF EDUCATION; Dorsey E. Hopson, II, DefendantsAppellees/Cross-Appellants (17-6141/6152), Defendants-Appellees (17-6070). Nos. 17-6070/17-6141/17-6152 Filed September 26, 2018 Synopsis Background: County education association and five tenured teachers who were excessed from their jobs as part of a reduction in force (RIF) brought declaratory judgment action against the county board of education and school superintendent under statute governing statutory rights of tenured teachers, and further alleged violations of the Teacher Tenure Act and the Due Process Clause of the Fourteenth Amendment. On removal from State court, the United States District Court for the Western District of Tennessee found violations of the Tenure Act, but further found such violations did not violate the Due Process Clause, awarded plaintiff teachers back pay, and in a companion case, denied the association's motion to join approximately 200 more plaintiffs. The teachers appealed and the board crossappealed. Holdings: The Court of Appeals, Boggs, Circuit Judge, held that: teachers were entitled to damages from the date of the illegal “excessing” to the date of the board's ratification of the “excessing” decisions; but teachers had no constitutionally protected right under the Due Process Clause of the Fourteenth Amendment in their continued employment. Affirmed. *651 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE Attorneys and Law Firms Darrell J. O'Neal, Michael Gregory Floyd, Law Office, Memphis, TN, for Plaintiff - Appellant Memphis-shelby County Education Association Richard L. Colbert, Nina Musinovic Eiler, Kay, Griffin, Enkema & Colbert, Nashville, TN, Philip A. Hostak, Counsel, Office of General Counsel, National Education Association, Washington, DC, for Plaintiffs - Appellees Marcia Kelley, Ida Steinberg, Laverne Jackson, Paul Banks, Dale Thompson Lori H. Patterson, Mary Wu Tullis, Baker, Donelson, Bearman, Caldwell & Berkowitz, Memphis, TN, for Defendants - Appellees BEFORE: BOGGS, CLAY, and ROGERS, Circuit Judges. Opinion BOGGS, Circuit Judge. This § 1983 case arises from an employment dispute in the Memphis, Tennessee area school system. The MemphisShelby County Education Association (“M-SCEA”) and five tenured teachers who were excessed from their jobs as part of a reduction in force (“RIF”) in June 2014 sued the Shelby County Board of Education (“the Board”) and Superintendent Dorsey Hopson (“the Superintendent”). On cross-motions for summary judgement, the district court held that the “excessing” process that implemented layoffs violated Tennessee’s Teacher Tenure Act (the “Tenure Act”). © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Document received by the TN Court of Appeals. 751 Fed.Appx. 650 This case was not selected for publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 6th Cir. Rule 32.1. United States Court of Appeals, Sixth Circuit. board of education's process for “excessing” tenured teachers as part of a RIF violated the Tennessee Teacher Tenure Act's non-delegation principle; Kelley v. Shelby County Board of Education, 751 Fed.Appx. 650 (2018) 362 Ed. Law Rep. 797, 2018 IER Cases 349,159 I In 2013, the Memphis City Schools merged with the Shelby County Schools (SCS). In response, six municipalities within the merged school system formed their own independent school districts, taking thousands of students and over 1,908 teaching positions away from SCS, resulting in a considerable projected decline in SCS student enrollment after the 2013-14 school year. Due to this projected shortfall, SCS needed to reduce the number of teachers on its payroll for 2014-15. After retirements and the hiring of new teachers, ultimately only 232 teachers were laid off. To reduce the number of teaching positions, SCS instituted an “excessing” process or RIF that is being challenged in this case. The Board approved the general reduction in force, without calculating any specific number of positions or specific positions to be eliminated. Instead, the Board delegated those duties to the Superintendent and the school principals. The SCS Budget Office provided system-wide enrollment numbers, calculated the number of teaching positions allowed at each school, and gave that information to the school principals, who then recommended which teaching positions should be eliminated. The school principals’ decisions were submitted to the SCS Human Resources Department for review and approval. Then the principals informed the affected teachers that their positions were being abolished. If the excessed teachers wanted to keep working for SCS, they had to reapply for positions at any SCS schools that had vacancies. If excessed teachers could not find a new SCS position by June 15, 2014, the Superintendent sent a letter informing them that they would be officially laid off on June 30, 2014 and put on a preferred “list of reemployment” (“the List”) pursuant to Tenn. Code § 49-5-511(b)(3). School principals were not required to prefer tenured teachers over non-tenured teachers, or to afford special treatment to teachers on the List. Instead, a teacher’s effectiveness and qualifications were the main factors used to determine whether a teacher was re-employed. All five teachers in this case did not find a position before June 15, 2014, were “excessed,” and were placed on the List. The following litigation ensued. II On August 4, 2014, Plaintiff Marcia Kelley, an excessed English teacher, filed a complaint in Tennessee state court against the Board and the Superintendent. Kelley was joined by the Memphis-Shelby County Education Association (“the M-SCEA”) “on behalf of and for the benefit of its similarly situated professional employee members.” An amended complaint was filed August 18, 2014, adding individual plaintiffs Ida Steinberg, a French teacher; Laverne Jackson, a cosmetology teacher; and Paul Banks, a history teacher, all of whom had been excessed. The teachers and the M-SCEA (hereinafter jointly referred *653 to as the “Teachers”) sought a declaratory judgment under Tenn. Code §§ 29-14-101 et seq., which states the statutory rights of tenured teachers and the corresponding statutory obligations of the Board governing assignment and transfer of teachers, and the rights of tenured teachers. (R.1-2, ID# 10) The Teachers brought statutory claims for wrongful deprivation of their legitimate expectation of continued employment under tenure law (R.1-2, ID# 23). They also brought a claim under the Fourteenth Amendment for depriving them of their property interests in continued employment without due process. (R.1-2, ID# 10). Defendants (hereinafter jointly referred to as “the Board”) removed the case to federal district court on August 14, 2014, based on federal-question jurisdiction under 28 U.S.C. § 1331. On August 29, 2014, the district court issued a scheduling order setting November 28, 2014, as the deadline to join parties or amend pleadings. No joinder motions were filed. The parties filed cross-motions for summary judgment on August 31, 2015. By agreement of the parties, the case of Dale Thompson, who was a guidance counselor at an underperforming high school where all faculty positions were declared vacant while she was on paid medical leave under the Federal Medical Leave Act, was consolidated with this case on November 25, 2015. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Document received by the TN Court of Appeals. Tenn. Code. § 49-5-511(b). *652 However, the court also held that these Tenure Act violations did not constitute a violation of the Due Process Clause of the Fourteenth Amendment because the teachers did not have a reasonable expectation of continued employment during a RIF and therefore did not have a constitutionally protected property interest. In a companion case, Memphis-Shelby County Education Association v. Shelby County Board of Education, et al., No. 17-6070, M-SCEA filed a motion to join approximately 200 plaintiffs to this action. The district court denied the joinder motion, holding that it was unreasonable and untimely. M-SCEA appealed. We affirm the district court’s rulings in both cases. Kelley v. Shelby County Board of Education, 751 Fed.Appx. 650 (2018) 362 Ed. Law Rep. 797, 2018 IER Cases 349,159 On August 24, 2017, the district court entered an order denying reconsideration of its summary-judgment order and calculating damages. (R. 89) The district court held that each named plaintiff was entitled to full back pay “without offset” for the period beginning on July 1, 2014 and ending on the earlier of the date of the Board’s resolution or the date that a particular excessed teacher obtained alternative employment within the school system. (R. 89, ID# 951) Plaintiffs Kelly and Steinberg were rehired on October 13, 2014 and awarded back pay of $17,171. Plaintiff Burks was re-hired at the beginning of the 2015-16 school year and awarded back pay of $75,457. Plaintiff Jackson, who was never rehired, was awarded back pay of $112,719. Plaintiff Thompson’s case is unique, as she was on approved FMLA leave when all the positions at her school were abolished, requiring every teacher to reapply. She was added as a party to this case with the consent of both parties. Thompson, who also was never rehired and elected to retire, was awarded back pay of $174,582. The court held the Teachers were not entitled to any relief beyond back pay *654 because, based on the plain language of the statute, a plaintiff “is not entitled to recover for career ladder benefits, vacation days, sick days, retirement contribution, or social security contribution.” (R. 89, ID# 951) Finally, the district court held that no plaintiff was entitled to reinstatement “at this time” because the Board’s resolution foreclosed that avenue of relief. The Teachers appealed (No. III The first issue the Board raises on appeal is whether the Board’s process for excessing tenured teachers violated the Tenure Act. The district court held that the Board’s excessing process violated the Tenure Act’s non-delegation principle, as decisions to hire and fire tenured teachers require the kind of policy discretion and judgment that is nondelegable. The district court determined that the Board improperly delegated that power to the SCS Superintendent and school principals. We agree. Under Tennessee law, school boards are responsible for conferring tenure and dismissing tenured teachers. Tenn. Code § 49-2-203(a)(1); § 49-5-511. (R. 57, ID# 712) The legislature has explicitly provided that superintendents have authority to hire, fire and transfer all personnel, except for tenured teachers. Tenn. Code § 49-2-301(b)(1)(EE). Tenn. Code § 49-5-511 sets forth the process for dismissing or suspending all teachers, including tenured teachers. Subsection (a) covers dismissal for cause, Tenn. Code § 49-5-511(a), while subsection (b) covers dismissal based on a reduction in force. 1 Tenn. Code § 49-5-511(b)(1). When a RIF becomes necessary “because of a decrease in enrollment or for other good reasons, the board shall be empowered to dismiss such teachers....” Tenn. Code § 49-5-511(b)(1). Further, “[t]he board shall give the teacher ... written notice of dismissal explaining fully the circumstances or conditions making the dismissal necessary.” Tenn. Code § 49-5-511(b) (2). Here, it is undisputed that beyond authorizing the overall reduction in force in 2014, the Board took no further action in the excessing process. It neither helped determine which © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Document received by the TN Court of Appeals. On August 3, 2016, the district court entered an order denying the Board’s motion for summary judgment and granting the Teachers’ motion for summary judgment, holding that the Board had improperly delegated its tenure authority under state law governing the excessing of teachers. (R. 70, ID# 784). The district court also determined that the Board’s actions did not violate the Due Process Clause of the Fourteenth Amendment or the FMLA. Immediately after this order, the Board passed a resolution dated October 5, 2016, which ratified post hoc the 2014 excessing decisions made by the SCS Superintendent and the school principals. On October 13, 2016, nearly two years after the deadline to join parties and more than two months after the district court rendered its final decision on liability, the M-SCEA moved to join approximately 200 plaintiffs to the action. Nowhere did the M-SCEA claim that any of the 200 individual members of M-SCEA had assigned their claims to M-SCEA or granted M-SCEA a power of attorney. On January 10, 2017, the district court denied the joinder motion, holding that it was unreasonable and untimely. (R. 70, ID# 786) 17-6141) and the Board cross-appealed (No. 17-6152). The Teachers argue that the district court’s opinion against the Board for violating the Tenure Act’s non-delegation principle should be upheld, but that the case should be remanded as to damages because the district court erred in limiting the scope of damages for back pay by accepting the Board’s post hoc 2016 resolution. They also argue that the district court erred in holding that tenured teachers do not have a constitutionally protected property interest in continued employment when jobs are eliminated through a RIF. On cross-appeal, the Board argues that the district court erred in holding a) that the Board’s RIF excessing process violated the Tenure Act and b) that the Board’s post hoc ratification of SCS employment decisions did not cure damages already caused by the Board’s illegal delegation of power. Kelley v. Shelby County Board of Education, 751 Fed.Appx. 650 (2018) 362 Ed. Law Rep. 797, 2018 IER Cases 349,159 In Tennessee, the general rule is that municipal authorities may delegate ministerial or administrative duties, but they may not delegate their legislative duties, duties that require the exercise of discretion and judgment. *655 City of Rockwood v. Cincinnati, N.O. & T.P. Ry. Co., 160 Tenn. 31, 22 S.W.2d 237, 240 (1929). Municipal bodies that make public policy have a nondelegable duty to the public to make such policy. (R.57, ID# 714) Local elected bodies are “charged with a public trust and the faithful performance of their duties; and the public is entitled to the judgment and discretion ...” exercised by their elected officials. Lotspeich v. Morristown, 141 Tenn. 113, 207 S.W. 719, 722 (1918). In Tennessee, school boards are local, elected bodies. Tenn. Code § 49-2-201 (a)(1). A member of a county board of education holds a county office within the meaning of Article VII, Section 2 of the Tennessee Constitution. Tenn. Op. Atty. Gen. No. 10-88 (2010 Tenn. AG LEXIS 94). Tenure is the public policy of the Tennessee legislature, designed to provide stability in educational programs and teacher employment, and to protect teachers from being fired due to malice or political differences. State v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635, 638 (1956). The legislature expressly gave the power over tenure decisions to the local boards of education. The legislature did not intend for these duties to be delegated and did not delegate these duties to superintendents or school principals in any other legislation. In construing the 1987 version of the Tenure Act, the Tennessee Supreme Court held that a Board of Education could not delegate determinations of a tenured teacher’s fitness for reemployment to a superintendent. Randall v. Hankins, 733 S.W.2d 871, 875 (Tenn. 1987); see also Lee v. Franklin Special Sch. Dist. Bd. Of Ed., 237 S.W.3d 322, 335-36 (Tenn. Ct. App. 2007). For all these reasons, the Board violated the non-delegation principles of the Tenure Act by having the Superintendent and school principals make excessing decisions. We recognize the practical difficulties with applying this principle in a large school district such as SCS. At oral argument, the Teachers took the non-delegation principle to an extreme, arguing that each individual employee’s evaluation must be made by the Board before a decision as to that employee’s fate. While the Board’s power to make tenure decisions is nondelegable, that is not the same as requiring a system-wide assessment by the Board of each teacher to be excessed. It is permissible for initial individual evaluations to be made at the school level, with the Board approving the evaluation process and guidelines, making the ultimate employment determinations, and providing notice of termination to the laid-off teachers. Plaintiffs’ cross-appeal raises the question of whether the Board cured its Tenure Act violation by passing a post hoc resolution approving the improperly delegated excessing decisions made by the SCS Superintendent and the school principals. In the district court, the Teachers argued that the Board’s October 2016 resolution ratifying the 2014 excessing decisions nunc pro tunc was just a litigation tactic to try to limit damages, coming more than two years after the fact, and immediately after the district court held that the Board had violated the nondelegable provisions of the Tenure Act. The district court, while acknowledging that “the Board may not now snap its fingers and make its unlawful conduct disappear” held that it was “entirely appropriate for the Board to exercise its statutory authority by serving as the final decision maker as to [the] Plaintiffs’ excessing.” (R. 89, ID# 949) The district court held that the October 2016 resolution limited the scope of damages by establishing the time period for which the Board would be held liable for the previously illegal actions--from the date of the illegal excessing (July 1, 2014) to the date of the Board’s ratification (October 5, 2016). *656 The Board’s post hoc resolution, two years after the fact, cannot cure the harm caused by the improper layoffs and loss of jobs for the individual teachers. However, once the district court held that the Board had violated its nondelegable duties, the Board took immediate action to correct its violation, creating a resolution to ratify the excessing decisions. In so doing, the Board was in effect taking ultimate responsibility for the excessing decisions, bringing the previously unlawful terminations into compliance with Tennessee law. The Board was no longer in violation of the Act, and the resolution limited the scope of damages available to the Teachers. However, the teachers were entitled to damages that occurred between the date of excessing and the resolution (or the earlier obtaining of a new job), because as the district court recognized, that harm cannot be cured. IV The Teachers argue that tenured teachers have a constitutionally protected property interest in their continued employment under Cleveland Bd. of Educ. v Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Document received by the TN Court of Appeals. teachers were to be dismissed, nor provided notice to the laidoff teachers. (R.57, ID# 713) Kelley v. Shelby County Board of Education, 751 Fed.Appx. 650 (2018) 362 Ed. Law Rep. 797, 2018 IER Cases 349,159 Applying Loudermill, the question is whether, under the Tennessee Tenure Act, a tenured teacher has a constitutionally protected property interest in continued employment when a teacher is dismissed pursuant to a reduction in force. In Johnston-Taylor v. Gannon, 907 F.2d 1577 (6th Cir. 1990), two community college professors filed wrongful-discharge actions claiming that their due-process rights (based on a collective-bargaining agreement and tenure) were violated when they were denied a hearing on the necessity of the layoff under which they were terminated. Johnston-Taylor held that “[p]ublic college professors have a constitutionally protected property interest in their teaching positions when they have a legitimate expectation of continued employment” created by their collectivebargaining contract and by the tenure status of one of the professors. Id. at 1581. It also held that “[p]rofessors with tenure or with a continuing contract may not be discharged without receiving a hearing in which they are informed of the grounds for their dismissal and given the opportunity to challenge the sufficiency of those grounds.” Ibid. Because the professors never had the opportunity to challenge the grounds for their dismissal, the alleged financial exigency, the court held that there was “a sufficient question of the validity of the procedural due process provided to them to warrant an evidentiary hearing.” Id. at 1582. *657 Johnston-Taylor held that a constitutionally protected property interest in continued employment exists for tenured college professors, notwithstanding their dismissal under a RIF made necessary by a financial exigency, where the professors challenged not only the need for a RIF, but also whether the professors individually met whatever criteria were used to select them and not others. Id. at 1581. The Teachers argue that Loudermill and Johnston-Taylor create a property interest in employment in the school system, not just in a specific position. (Teacher Br. 27) This position does not comport with other Sixth Circuit cases which hold that state employees have no protected property interest in their continued employment in the face of layoffs. Gragg v. Somerset Tech. College, 373 F.3d 763 (6th Cir. 2004); Riggs v. Kentucky, 734 F.2d 262 (6th Cir. 1984). In Riggs, 42 laid-off Kentucky merit-system employees filed § 1983 claims for due-process violations of constitutionally protected property rights. The Riggs court held that the claimed statutory right to employment in Kentucky was specifically limited, allowing for layoffs for reasons of lack of funds or work or abolition of a position. The statute governing layoffs contained no requirement of individual cause. Riggs, 734 F.2d at 265. The court held that Riggs failed to establish the deprivation of a constitutionally protected property interest in not being subject to a reorganizational layoff without individual cause and distinguished discharges which required such cause. Ibid. Citing Riggs, the Gragg Court likewise held that a laid-off government employee has no constitutionally protected right in continued employment where an employee is laid off because the position is abolished, and dismissal is not based on cause. Gragg, 373 F.3d at 769. A protected property interest is defined by the terms of the state document creating the interest. Gragg, Riggs, and Johnston-Taylor are all consistent with this principle. The statute defines the contour of the interest. Here, there are two competing versions of the Tenure Act, the 2012 version and the 2014 version, which went into effect on July 1, 2014. In its liability opinion, the district court states that the teachers were laid off on June 30, 2014, a date covered by the 2012 statute. (R.57 ID# 702) But in its damages opinion, the district court refers to July 1, 2014 as the start date for damage calculation. (R.89 ID# 940) The 2012 version of the Tenure Act states: (1) When it becomes necessary to reduce the number of teaching positions or nonlicensed positions in the system because of a decrease in enrollment or for other good reasons, the board shall be empowered to dismiss such teachers or nonlicensed employees as may be necessary. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Document received by the TN Court of Appeals. question in Loudermill was “what pretermination process must be accorded a public employee who can be discharged only for cause.” Id. at 535, 105 S.Ct. 1487. The Loudermill court found a property interest in Ohio’s “classified civil servant” statute, Ohio Rev. Code § 124.11, which provided that such employees could only be terminated for cause. Ibid; see also Ohio Rev. Code § 124.34. Recognizing that property interests in continued employment are created by state law, Loudermill held that the federal “Due Process Clause provides that certain substantive rights – life, liberty, and property – cannot be deprived except pursuant to constitutionally adequate procedures.” Id. at 541, 105 S.Ct. 1487. The right to due process “is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” Ibid. Kelley v. Shelby County Board of Education, 751 Fed.Appx. 650 (2018) 362 Ed. Law Rep. 797, 2018 IER Cases 349,159 (2) The board shall give the teacher or nonlicensed employee written notice of dismissal explaining fully the circumstances or conditions making the dismissal necessary. (3) A tenured teacher who has been dismissed because of abolition of a position shall be placed on a list for reemployment in the first vacancy the teacher is qualified by training and experience to fill. Nothing in this subsection (b) shall be construed to deprive the director of schools of the power to determine the filling of such vacancy on *658 the basis of the director of school's evaluation of the teacher's competence, compatibility and suitability to properly discharge the duties required for the vacant position considered in the light of the best interest of the students in the school where the vacancy exists. The teacher's most recent evaluations may be a factor in such determination. ... (4) (B) The teacher receiving the notification shall retain the right to stay on the preferred list for reemployment by notifying the director of schools in writing by April 15 of each subsequent year of the desire to stay on the preferred list for reemployment. Tenn. Code § 49-5-511(b)(1-4) (2012) (emphasis added). This statutory language in no way conditions the abolition of a position on the individual circumstances of the employee. The 2014 version of the Tenure Act provides that the Board is empowered to dismiss teachers when there is a decrease in enrollment “based on their level of effectiveness determined by evaluation....” Tenn. Code § 49-5-511(b) (1). The requirement in subsection (b)(2) of written notice explaining the circumstances of the dismissal is the same in the 2012 and 2014 versions. See § 49-5-511(b)(2). But subsection (b)(3) is significantly different in the 2012 and 2014 versions. In 2012, (b)(3) applied only to tenured teachers, and provided that a tenured teacher who has been dismissed “shall be placed on the list for reemployment.” In 2014, (b)(3) applies to any teacher, tenured or not, and only allows teachers to be placed on the reemployment list if they receive sufficiently high evaluations. Tenn. Code § 49-5-511(b)(3) (2014). It is at least arguable that this provision triggers a property interest. Further, the right to remain on the List is limited, ending after a “teacher rejects four (4) bona fide offers of reemployment for comparable positions within the LEA.” § 49-5-511(b)(4) (2014). The Teachers are not clear on appeal as to which version should apply. On the one hand, the 2012 version is slightly more favorable to the Teachers in requiring that teachers “shall” be placed on the List. On the other hand, the Teachers argue that under the 2014 version they had a protected property interest in continued employment because that law provides that placement on the List would turn on the kind of individualized merit evaluations that can trigger due-process protections for tenured employees. In contrast, RIFs such as those in Gragg and Riggs create no individual protected property interest. The 2012 version of the Tenure Act applies in this case. All excessing decisions were made prior to July 1, 2014. The Techers had no reasonable expectation to the 2014 statutory rights because the excessing happened in early 2014 and those rights did not exist then. Under the 2012 version, the Teachers had no property interest or a reasonable expectation that they would not be excessed based on their individual merits, qualities, circumstances, or performance. The 2012 version did not place any limits on how the layoffs in the event of a RIF should occur – only that the decisions should be made by the Board. The teachers accordingly had no protected property interest. Because the 2012 version of the Act applies, we need not determine whether the language in the 2014 Act requiring the Board to consider teacher evaluations created a “cause” requirement. V As to the question of joinder of 200 new individual plaintiff teachers, the district court did not abuse its discretion in denying joinder based on untimely filing. And, *659 for the reasons set forth above, we AFFIRM the district court’s holdings in all cases consolidated on this appeal. All Citations 751 Fed.Appx. 650, 362 Ed. Law Rep. 797, 2018 IER Cases 349,159 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Document received by the TN Court of Appeals. However, the director of schools and the board of education are expressly forbidden to use abolition of a position as a method of avoiding dismissal charges against a teacher and the accompanying due process rights attaching to the status of tenure. Kelley v. Shelby County Board of Education, 751 Fed.Appx. 650 (2018) 362 Ed. Law Rep. 797, 2018 IER Cases 349,159 Footnotes The legislature amended Tenn. Code 49-5-511 (2012) effective July 1, 2014. The district court held the issue of nondelegation was not affected by these changes and that the analysis remained the same under either version. End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Document received by the TN Court of Appeals. 1 McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Supreme Court of Tennessee, AT NASHVILLE. Jodi MCCLAY v. AIRPORT MANAGEMENT SERVICES, LLC No. M2019-00511-SC-R23-CV September 4, 2019 Session FILED 02/26/2020 Rule 23 Certified Question of Law from the United States District Court for the Middle District of Tennessee, No. 3:17-cv-00705, Eli J. Richardson, Judge Attorneys and Law Firms John Vail, Washington, DC, and Edmund J. Schmidt III, Nashville, Tennessee, for the plaintiff Jodi McClay. John R. Tarpley, Nashville, Tennessee, and Janet Strevel Hayes and Jared S. Garceau, Knoxville, Tennessee, for the defendant Airport Management Services, LLC. Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; and Joseph P. Ahillen, Assistant Attorney General, for the intervenor, the State of Tennessee. Marty R. Phillips, Dale Conder, Jr., and Craig P. Sanders, Jackson, Tennessee, and Wendy L. Longmire, and T. William A. Caldwell, Nashville, Tennessee, for the amicus curiae, Center for Urological Treatment, PLC. Randall L. Kinnard, Mary Ellen Morris, Jessica J. Kinnard, Donald Capparella, Tyler Chance Yarbro, Kimberly Macdonald, Nashville, Tennessee, for the amici curiae, Cynthia E. Yebuah and Eric N. Yebuah. Cary Silverman, Washington, DC, and John M. Kizer, Knoxville, Tennessee, for the amici curiae, Tennessee Braden H. Boucek, Nashville, Tennessee, for the amicus curiae, Beacon Center of Tennessee. Sean W. Martin and Michael J. Petherick, Chattanooga, Tennessee, for the amicus curiae, Tennessee Defense Lawyers Association. W. Bryan Smith, Memphis, Tennessee, and Brian G. Brooks, Greenbrier, Arkansas, for the amicus curiae, Tennessee Trial Lawyers Association. Carson A. Royal, Rossville, Georgia, for the amicus curiae, Peter Baldschun. Philip N. Elbert and Jeffrey A. Zager, Nashville, Tennessee, for the amicus curiae, Barbara Patterson. Jeffrey S. Bivins, C.J., delivered the opinion of the Court, in which Holly Kirby and Roger A. Page, JJ., joined. Cornelia A. Clark, J., filed a separate dissenting opinion. Sharon G. Lee, J., also filed a separate dissenting opinion. Holly Kirby, J., filed a separate concurring opinion. OPINION Jeffrey S. Bivins, C.J. *1 We accepted certification of the following questions of law from the United States District Court for the Middle District of Tennessee regarding the constitutionality of Tennessee’s statutory cap on noneconomic damages, codified at Tennessee Code Annotated section 29-39-102: “(1) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate a plaintiff’s right to a trial by jury, as guaranteed in Article I, section 6, of the Tennessee Constitution?; (2) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate Tennessee’s constitutional doctrine of separation of powers between the legislative branch and the judicial branch?; (3) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate the Tennessee Constitution by discriminating disproportionately against © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Document received by the TN Court of Appeals. 2020 WL 915980 Only the Westlaw citation is currently available. Chamber of Commerce and Industry, Chamber of Commerce of the United States of America, Tennessee Medical Association, American Medical Association, National Federation of Independent Business Small Business Legal Center, American Tort Reform Association, Coalition for Litigation Justice, Inc., and American Property Casualty Insurance Association. McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 Factual and Procedural Background The certified questions of law at issue in this appeal arise from a personal injury action brought in the United States District Court for the Middle District of Tennessee (“District Court”). Plaintiff Jodi McClay filed suit against Defendant Airport Management Services, LLC, seeking damages for injuries she sustained in a store at the Nashville International Airport in August 2016. A jury returned a verdict for Plaintiff in the amount of $444,500 for future medical expenses and $930,000 for noneconomic damages, including pain and suffering, permanent injury, and loss of enjoyment of life. The District Court entered judgment against Defendant in accordance with the verdict. Defendant then moved to apply the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102, which generally limits noneconomic damages in civil liability actions to $750,000. Plaintiff responded to Defendant’s motion by arguing the statutory cap on noneconomic damages is unconstitutional. The District Court then certified the following questions of law to this Court: 1. Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate a plaintiff’s right to a trial by jury, as guaranteed in Article I, section 6, of the Tennessee Constitution? 2. Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate Tennessee’s constitutional doctrine of separation of powers between the legislative branch and the judicial branch? 3. Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate the Tennessee Constitution by discriminating disproportionately against women? On June 19, 2019, we accepted certification of these three questions of Tennessee law. In addition to the parties, the State of Tennessee entered an appearance under Tennessee Rule of Appellate Procedure 32 to defend the constitutionality of the statute. Numerous amici curiae also have filed briefs to address the issues before the Court, and we appreciate the perspectives they have provided. Applicable Legal Standards Tennessee Supreme Court Rule 23 provides that this Court “may, at its discretion, answer questions of law certified to it by ... a District Court of the United States in Tennessee” if the questions of state law are “determinative of the cause” and “there is no controlling precedent in the decisions of the Supreme Court of Tennessee.” Tenn. Sup. Ct. R. 23, § 1. “Rather than requiring a federal court to make the law of this State or to abstain from deciding the case until the state courts resolve the point of law, answering certified questions from federal courts promotes judicial efficiency and comity and protects this State’s sovereignty.” Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 803 (Tenn. 2015). Each of the questions certified by the District Court in this case requires us to determine whether Tennessee’s statutory cap on noneconomic damages violates the Tennessee Constitution. In making that determination, we “start with a strong presumption that acts passed by the legislature are constitutional.” Lynch v. City of Jellico, 205 S.W.3d 384, 390 (Tenn. 2006). We further “ ‘indulge every presumption and resolve every doubt in favor of the statute’s constitutionality.’ ” Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003) (quoting State v. Taylor, 70 S.W.3d 717, 721 (Tenn. 2002)). “This presumption applies with even greater force when, as here, the facial constitutional validity of a statute is challenged.” State v. Decosimo, 555 S.W.3d 494, 506 (Tenn. 2018). Analysis *2 The General Assembly enacted the statutory cap on noneconomic damages as part of the Tennessee Civil Justice Act of 2011. See 2011 Tenn. Pub. Acts, ch. 510, §§ 1, 10. Specifically, Tennessee Code Annotated section 29-39-102(a) (2) provides that, in a civil action, awards may include [c]ompensation for any noneconomic damages suffered by each injured plaintiff not to exceed seven hundred fifty thousand dollars ($750,000) for all injuries and occurrences that were or could have been asserted, regardless of whether the action is based on a single act or omission or a series of acts © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Document received by the TN Court of Appeals. women?” Upon review, we answer each of the District Court’s questions in the negative. McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 The cap is increased to $1,000,000 for certain “catastrophic loss or injury.” Tenn. Code Ann. §§ 29-39-102(c)-(d). The statute also exempts certain kinds of cases from the cap, such as those in which the defendant had a specific intent to inflict serious physical injury, the defendant was intoxicated, or the defendant committed a felony in causing the injury. Tenn. Code Ann. § 29-39-102(h). None of those exemptions is at issue in this case. The statute was enacted to apply prospectively to actions that accrue on or after October 1, 2011. See 2011 Tenn. Pub. Acts, ch. 510, § 24. Plaintiff, having obtained a judgment of noneconomic damages in excess of the statutory cap, argues that the statutory cap is unconstitutional, and thus unenforceable. More specifically, Plaintiff argues that, under the Tennessee Constitution, the statutory cap violates the right to trial by jury, the doctrine of separation of powers, and discriminates disproportionately against women in violation of equal protection guarantees. We address each of these arguments in turn. 1 A. Whether Tennessee’s Statutory Cap on Noneconomic Damages Violates a Plaintiff’s Right to Trial by Jury. First, Plaintiff contends that the statutory cap violates the Plaintiff’s right to trial by jury. The right to a jury trial in Tennessee is expressly guaranteed by Article 1, Section 6, of the Tennessee Constitution, which mandates that “the right of trial by jury shall remain inviolate[.]” We have explained that this provision guarantees the right to trial by jury as it existed at common law under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796. Young v. City of LaFollette, 479 S.W.3d 785, 793 (Tenn. 2015) (citing Helms v. Tenn. Dep't of Safety, 987 S.W.2d 545, 547 (Tenn. 1999); Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 506 (1968)). We further have held that “[t]he right to a jury trial envisions that all contested factual issues will be decided by jurors who are unbiased and impartial.” State v. Smith, 418 S.W.3d 38, 45 (Tenn. 2013) (citing Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn. 1996); Wolf v. Sundquist, 955 S.W.2d 626, 629 (Tenn. Ct. App. 1997)). We also have long-recognized that the ascertainment of damages is a question of fact for the jury. See Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994) (jury’s determination of damages is a question of fact); Fort v. Orndoff, 54 Tenn. 167, 173 (Tenn. 1872) (the ascertainment of damages was a question of fact “eminently proper to be ascertained by [the] jury”). We assume for purposes of this opinion that noneconomic damages were available at the time of the adoption of the Tennessee Constitution. 2 Thus, we also assume that a plaintiff has the right to an unbiased and impartial jury to decide, as a question of fact, the amount of any noneconomic damages sustained by the plaintiff. We now turn to what restrictions, if any, the General Assembly may place on the ability of a plaintiff to recover noneconomic damages. *3 As an initial matter, we recognize that it is within our General Assembly’s authority to legislatively alter the common law. See Mills v. Wong, 155 S.W.3d 916, 923 (Tenn. 2005) (“The Tennessee General Assembly itself has the power to weigh and to balance competing public and private interests in order to place reasonable limitations on rights of action in tort which it also has the power to create or to abolish.”); Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 712 (Tenn. 2002) (stating that “the General Assembly unquestionably has the constitutional and legislative authority to change the common law of this state”); Wooley v. Parker, 222 Tenn. 104, 432 S.W.2d 882, 884 (1968) (explaining that “the Legislature of the State for obvious reasons sets the public policy of the State by their Acts, and we have held time and time again that the common law is applicable in Tennessee unless the Legislature enacts a statute otherwise”). Indeed, there are numerous examples of the General Assembly altering common law causes of action and available remedies. For example, in Lavin v. Jordon, 16 S.W.3d 362, 363 (Tenn. 2000), we held that the common law tort of negligent control and supervision of a child had been superseded by statute when the damage caused by the child was intentional or malicious. As a result, damages against parents in such actions are now limited by a statutory cap that provides “[t]he recovery shall be limited to the actual damages in an amount not to exceed ten thousand dollars ($10,000) in addition to taxable court costs.” Id. at 365 (quoting Tenn. Code Ann. § 37-10-102). 3 In Lavin, we expressed our “distaste” for the result compelled by the statute, which prevents plaintiffs with damages exceeding the cap from being made whole, but acknowledged that it was within the legislature’s authority to enact such legislation. 4 Id. at 369. The General Assembly also has expressly abrogated common law causes of action, including alienation of affectations, seduction, and criminal conversation. Tenn. Code Ann. § 36-3-701 (“The common law tort action of alienation of affections is hereby © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Document received by the TN Court of Appeals. or omissions that allegedly caused the injuries or death. McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) abolished.”); Tenn. Code Ann. § 39-13-508(a) (“No cause of action shall be maintained that is based upon the common law torts of seduction or criminal conversation, and those torts are abolished.”). This Court has recognized that the abrogation of those causes of action was within the General Assembly’s authority and represented the legislative expression of the public policy of the state. See Hanover v. Ruch, 809 S.W.2d 893, 895 (Tenn. 1991); Dupuis v. Hand, 814 S.W.2d 340, 346 (Tenn. 1991). Here, one could view the statutory cap on noneconomic damages as a limitation on the available remedy for certain causes of action, or as an abrogation of causes of action for claims exceeding the statutory limit. Under either view, the General Assembly was within its legislative authority to alter the common law by enacting the statutory cap on noneconomic damages. Of course, the General Assembly may only exercise its authority to alter the common law within constitutional limits. See Hodge v. Craig, 382 S.W.3d 325, 338 (Tenn. 2012) (stating that it is “beyond reasoned argument that the General Assembly, subject only to constitutional limitations, has plenary power to alter the common law”); Lavin, 16 S.W.3d at 368 (stating that “the General Assembly has plenary power within constitutional limits to change the common law by statute”). Thus, we further examine whether, by enacting the statutory cap on noneconomic damages, the General Assembly has interfered with the constitutional right to trial by jury. As set forth above, the right to a jury trial mandates that all contested factual issues be decided by an unbiased and impartial jury. Smith, 418 S.W.3d at 45. However, the right to a jury trial under the Tennessee Constitution does not entitle a plaintiff to any particular cause of action or any particular remedy. Instead, what causes of action a plaintiff may bring, or what remedies a plaintiff may seek, are matters of law subject to determination by the legislature. 5 Hopkins v. Nashville, C. & St. L. R. R., 96 Tenn. 409, 34 S.W. 1029, 1040 (1896) (“The rights of parties must be determined according to the established law of the land as declared by the legislature or expounded by the courts, and not according to what the jury, in their own opinion, may suppose the law is or ought to be[.]”) (quoting Whirley v. Whiteman, 38 Tenn. 610 (Tenn. 1858)); Collins v. E. Tenn., V. & G. R. Co., 56 Tenn. 841, 847 (Tenn. 1874) (“The State has complete control over the remedies of its citizens in the Courts. It may give a new and additional remedy for a right already in existence--or may abolish old and substitute new remedies. It may modify an existing remedy[.]”). *4 Under Tennessee Code Annotated section 29-39-102(g), the statutory cap on noneconomic damages is not disclosed to the jury, but is instead applied by the trial court to any award of noneconomic damages. Thus, a jury determines, as a question of fact, the amount of any noneconomic damages sustained by a plaintiff. The trial judge then applies, as a matter of law determined by the legislature, the statutory cap on noneconomic damages in entering the final judgment. This application of law by the trial judge does not violate the plaintiff’s right to have a jury determine the underlying facts of the case. In reaching this conclusion, we find persuasive the reasoning from many of our sister states that have similarly concluded a variety of statutory caps on damages do not violate a plaintiff’s right to trial by jury. In Murphy v. Edmonds, 325 Md. 342, 374, 601 A.2d 102 (Md. 1992), Maryland’s highest court held that a statutory cap on noneconomic damages did not violate the right to a jury trial. The court reasoned that “[a] remedy is a matter of law, not a matter of fact.... A trial court applies the remedy’s limitation only after the jury has fulfilled its fact-finding function. Thus, [the statutory cap] does not infringe upon the right to a jury trial[.]” Id. (quoting Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 376 S.E. 2d 525, 529 (1989)). The Supreme Court of Idaho similarly held in Kirkland v. Blaine County Medical Center, 134 Idaho 464, 4 P.3d 1115, 1120 (2000), that a statutory cap on noneconomic damages did not violate the right to a jury trial, explaining that “[t]he jury is still allowed to act as the fact finder in personal injury cases. The statute simply limits the legal consequences of the jury’s finding.” The court went on to explain that the plaintiffs “had a jury trial during which they were entitled to present all of their claims and evidence to the jury and have the jury render a verdict based on that evidence. That is all to which the right to jury entitles them. The legal consequences and effect of a jury’s verdict are a matter for the legislature (by passing laws) and the courts (by applying those laws to the facts as found by the jury).” Id. The Supreme Court of Ohio in Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 880 N.E.2d 420, 431 (2007), also upheld a statutory cap on noneconomic damages, stating that [s]o long as the fact-finding process is not intruded upon and the resulting findings of fact are not ignored or replaced by another body’s findings, awards may be altered as a matter of law. There is no dispute that the right to a trial by jury does not extend to the determination of questions of © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Document received by the TN Court of Appeals. 2020 WL 915980 McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 law.... Thus, without violating the Constitution, a court may apply the law to the facts determined by a jury. Thus, we hold that the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102 does not violate the right to trial by jury under the Tennessee Constitution. 6 We conclude that the right to trial by jury under the Tennessee Constitution is satisfied when an unbiased and impartial jury makes a factual determination regarding the amount of noneconomic damages, if any, sustained by the plaintiff. That right is not violated when a judge then applies, as a matter of law, the statutory cap on noneconomic damages. B. Whether Tennessee’s Statutory Cap on Noneconomic Damages Violates the Separation of Powers Doctrine. *5 Second, Plaintiff argues that the statutory cap violates the separation of powers provisions of the Tennessee Constitution. Article II, section 1 of the Tennessee Constitution provides that “[t]he powers of the Government shall be divided into three distinct departments: the Legislative, Executive, and Judicial.” Section 2 of the same Article provides that “[n]o person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.” “In general, the ‘legislative power’ is the authority to make, order, and repeal law; the ‘executive power’ is the authority to administer and enforce the law; and the ‘judicial power’ is the authority to interpret and apply law.” Bredesen v. Tenn. Judicial Selection Comm'n, 214 S.W.3d 419, 434 (Tenn. 2007) (quoting State v. King, 973 S.W.2d 586, 588 (Tenn. 1998)); see also Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995). We have recognized, however, that “while the three branches of government are independent and co-equal, they are to a degree interdependent as well, with the functions of one branch often overlapping that of another.” Bredesen, 214 S.W.3d at 434 (quoting King, 973 S.W.2d at 588). We have further explained that this Court alone “has the inherent power to promulgate rules governing the practice and procedure of the courts of this state,” which “cannot be constitutionally exercised by any other branch of government.” State v. Lowe, 552 S.W.3d 842, 857 (Tenn. 2018) (quoting State v. Mallard, 40 S.W.3d 473, 480-81 (Tenn. 2001)). Thus, this Court previously has held that the General Assembly oversteps constitutional boundaries in violation of the separation of powers when it exercises its legislative power in a way that directly contradicts existing procedural rules of the courts. Lowe, 552 S.W.3d at 857. However, the separation of powers doctrine in our constitution does not prevent the Generally Assembly from enacting substantive law. See Bredesen, 214 S.W.3d at 434 (legislative power is the authority to make, order, and repeal law); see also Zdrojewski v. Murphy, 254 Mich.App. 50, 657 N.W.2d 721 (2002) (holding statutory cap on noneconomic © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Document received by the TN Court of Appeals. See also Evans ex rel. Kutch v. State, 56 P.3d 1046, 1051 (Alaska 2002) (agreeing with the Third Circuit Court of Appeals “that a damages cap did not intrude on the jury’s fact-finding function, because the cap was a ‘policy decision’ applied after the jury’s determination, and did not constitute a re-examination of the factual question of damages.”) (citing Davis v. Omitowoju, 883 F.2d 1155, 1159-65 (3d Cir. 1989)); Horton v. Or. Health & Sci. Univ., 359 Or. 168, 376 P.3d 998, 1046 (2016) (“In applying the statutory limit on damages ... the court was applying a legal limit, expressed in the statute, to the facts that the jury had found.”); Gourley ex rel. Gourley v. Neb. Methodist Health Sys., Inc., 265 Neb. 918, 663 N.W.2d 43, 75 (2003) (holding statutory cap on damages does not violate right to a jury trial because the legislature “has the power to limit recovery in a cause of action” and “the trial court applies the remedy’s limitation only after the jury has fulfilled its factfinding function”); Tam v. Eighth Jud. Dist. Court, 131 Nev. 792, 358 P.3d 234, 236 (2015) (explaining that the “cap does not interfere with the jury’s factual findings because it takes effect only after the jury has made its assessment of damages, and thus, it does not implicate a plaintiffs right to a jury trial”); Judd ex rel. Montgomery v. Drezga, 103 P.3d 135, 144 (Utah 2004) (“The damage cap enacted by the legislature represents law, similar to an element of a claim to which the trial court must comport the jury’s factual determinations.”); Wright v. Colleton Cnty. Sch. Dist., 301 S.C. 282, 391 S.E.2d 564, 569-70 (1990) (“A remedy is a matter of law, not a matter of fact. Although a party has the right to have a jury assess his damages, he has no right to have a jury dictate through an award, the legal consequences of its assessments.”); Phillips v. Mirac, Inc., 470 Mich. 415, 685 N.W.2d 174, 183 (2004) (“Plaintiff’s right to a jury trial is not implicated. She has had a jury trial and the jury determined the facts of her case. The jury’s function is complete. It is up to the court to determine the legal effect of those findings, whether it be that her damages are capped, reduced, increased, tripled, reduced to present value, or completely unavailable.”). McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 As we discussed supra, the statutory cap on noneconomic damages is a substantive change in the law that was within the General Assembly’s legislative authority to enact. The statutory cap does not interfere with the judicial power of the courts to interpret and apply law. To the contrary, courts exercise their judicial authority, and fulfill their constitutional responsibilities, by applying the statutory cap on noneconomic damages to the cases before them. Thus, we hold that the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102 does not violate the separation of powers doctrine under the Tennessee Constitution. C. Whether Tennessee’s Statutory Cap on Noneconomic Damages Violates the Equal Protection Clause by Discriminating Disproportionately Against Women. Finally, Plaintiff contends that the statutory cap violates the equal protection provision of the Tennessee Constitution. The right to equal protection is guaranteed by the Fourteenth Amendment of the United States Constitution. Equal protection also is guaranteed by Article I, section 8, and Article XI, section 8, of the Tennessee Constitution. We have held that the Tennessee and United States Constitutions confer essentially the same protections, and we have followed the framework developed by the United States Supreme Court for analyzing equal protection claims. Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 152 (Tenn. 1993) (“[T]he Court has stated in previous decisions that Article I, Section 8 and Article XI, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the Constitution of the United States confer essentially the same protection upon the individuals subject to those provisions.”) (citing Marion Cnty. Tenn. River Transp. Co. v. Stokes, 173 Tenn. 347, 117 S.W.2d 740, 741 (1938); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 180 (1912)); Newton v. Cox, 878 S.W.2d 105, 109 (Tenn. 1994) (“[T]his Court has followed the framework developed by the United States Supreme Court for analyzing equal protection claims[.]”). “The concept of equal protection espoused by the federal and of our state constitutions guarantees that ‘all persons similarly circumstanced shall be treated alike.’ ” Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920)). *6 Here, Plaintiff acknowledges that the statutory cap on noneconomic damages is facially neutral, and she makes no allegation that the General Assembly had a discriminatory intent or purpose in enacting the statute. Instead, Plaintiff simply argues that the statutory cap on noneconomic damages has a disparate impact on women. The United States Supreme Court has held repeatedly that the Equal Protection Clause of the Federal Constitution does not provide for disparate impact claims. See Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (holding that disproportionate impact, standing alone, does not violate the Equal Protection Clause); Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450, (1977) (“[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact.... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause[.]”); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (holding that “the Fourteenth Amendment guarantees equal laws, not equal results”); Lewis v. Casey, 518 U.S. 343, 375, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“We rejected a disparate-impact theory of the Equal Protection Clause altogether in Washington v. Davis....”) (Thomas, J., concurring); Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 42, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) (recognizing that disparate impact alone is insufficient to prove a constitutional violation). We similarly have held that a party asserting an equal protection violation must show discriminatory purpose. See State v. Banks, 271 S.W.3d 90, 155 (Tenn. 2008) (holding a defendant in a criminal proceeding who asserts an equal protection violation must prove the existence of purposeful discrimination) (citing Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555); State v. Keen, 31 S.W.3d 196, 217 (Tenn. 2000) (same). Accordingly, without evidence of discriminatory purpose, disparate impact alone does not violate the equal protection provisions of the Tennessee Constitution. Therefore, with no allegation or evidence that the General Assembly acted with the purpose of discriminating against women in enacting the statutory cap on noneconomic damages, we hold that Tennessee Code Annotated section 29-39-102 does not violate the Tennessee © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Document received by the TN Court of Appeals. damages did not violate separation of powers because it was a substantive change in the law that did not regulate the procedural operations of the judiciary); Gourley, 663 N.W.2d at 76 (holding statutory cap on damages was a proper legislative function that did not violate separation of powers); Judd, 103 P.3d at 144 (holding statutory cap on damages represented the law to be applied and did not violate separation of powers). McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 women. 7 Conclusion We hold that the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102 does not violate the right to trial by jury, the doctrine of separation of powers, or the equal protection provisions of the Tennessee Constitution. The Clerk is directed to transmit a copy of this opinion to the United States District Court for the Middle District of Tennessee in accordance with Tennessee Supreme Court Rule 23, section 8. Costs in this Court are taxed to Plaintiff Jodi McClay, for which execution may issue if necessary. Cornelia A. Clark, J., filed a separate dissenting opinion. Sharon G. Lee, J., also filed a separate dissenting opinion. Holly Kirby, J., filed a separate concurring opinion. Cornelia A. Clark, J., dissenting. I dissent. I would hold that Tennessee Code Annotated section 29-39-102(e) (2012) violates article I, section 6 of the Tennessee Constitution by usurping the jury’s essential and constitutionally protected fact-finding function. Every version of the Tennessee Constitution dating back to the attainment of statehood in 1796 has declared “[t]hat the right of trial by jury shall remain inviolate.” 1 The contours of this right thus “ ‘have remained unchanged’ ” for the past 223 years. Sneed v. City of Red Bank, Tenn., 459 S.W.3d 17, 29 n.8 (Tenn. 2014) (quoting Jones v. Greene, 946 S.W.2d 817, 823 (Tenn. Ct. App. 1996)). This constitutional guarantee preserves “the right of trial by jury as it existed at common law and was in force and use under the laws and Constitution of North Carolina at the time of the formation and adoption” of the Tennessee Constitution of 1796. Newport Hous. Auth. v. Ballard, 839 S.W.2d 86, 88 (Tenn. 1992) (citing Trigally v. Mayor of Memphis, 46 Tenn. 382 (1869)); see also Helms v. Tenn. Dep't of Safety, 987 S.W.2d 545, 547 (Tenn. 1999). As for claims that would have been tried to a jury at common law, this constitutional guarantee ensures that the right of trial by jury “shall remain inviolate.” Newport Hous. Auth., 839 S.W.2d at 88; see also Young v. City of LaFollette, 479 S.W.3d 785, 793-94 (Tenn. 2015) (stating that the constitutional right to trial by jury does not apply to statutory rights and remedies first created after the adoption of the 1796 Constitution, although the General Assembly remains free to provide expressly for a statutory right of trial by jury); Smith Cnty. Educ. Ass'n v. Anderson, 676 S.W.2d 328, 336 (Tenn. 1984) (recognizing that the constitutional right to trial by jury does not apply to inherently equitable claims that would not have been tried to a jury at common law); Jones, 946 S.W.2d at 823-24 (enumerating the claims at common law to which the right to trial by jury did not apply). 2 Article I, section 6 therefore preserves the essential functions of the jury. One of those essential functions “is that all contested factual issues be determined by an unbiased, impartial jury.” Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn. 1996); see also State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991) (“Among the essentials of the right to trial by jury is the right guaranteed to every litigant in jury cases to have the facts involved tried and determined by twelve jurors.”). This constitutionally guaranteed fact-finding function encompasses the jury’s determination of the type and amount of damages. Indeed, only seventeen years after the current version of article I, section 6 was adopted, this Court declared: *7 In trials at common law, the jury are the proper judges of damages; and, where there is no certain measure of damages, the court ordinarily will not disturb their verdict, unless on grounds of prejudice, passion, or corruption in the jury. To this rule we have conformed our practice, and it is the only safe one on the subject. In view of the rule at common law, and as discovered in the decisions of our predecessors on this bench, we hold that, in actions for damages for personal torts, it is within the strict province of the jury to estimate the extent of the injury, and assess the damages; and unless there is a manifest abuse of this trust, such as to indicate passion, prejudice, partiality, or unaccountable caprice, or corruption, that the trial judge ought not to interfere. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Document received by the TN Court of Appeals. Constitution by discriminating disproportionately against McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 Tennessee Code Annotated section 29-39-102(e) usurps and replaces the jury’s constitutionally protected function of determining damages with an arbitrary ceiling on damages mostly unrelated to the specific facts and circumstances of each litigant’s claim. The effect of Tennessee Code Annotated section 29-39-102(e) is a mandatory remittitur that would otherwise be unenforceable unless a trial court first determined that the evidence in a particular case preponderated against the jury’s determination of damages and the plaintiff then consented to the remittitur. See Borne, 532 S.W.3d at 309-10; see also Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 163 (Ala. 1991) (describing a statute capping noneconomic damages as “patently inconsistent with the doctrines of remittitur or new trial as we have applied them”). By usurping the jury’s constitutionally protected function of determining damages and rendering the jury’s factual findings meaningless, Tennessee Code Annotated section 29-39-102(e) clearly contravenes article I, section 6. *8 In so concluding, I adopt the reasoning of the high courts of Alabama, Georgia, Kansas, Missouri, and Washington, which have eloquently explained how statutes capping damages in their own jurisdictions violate their own state constitutional provisions preserving “inviolate” the right to trial by jury. Moore, 592 So. 2d 156; Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 691 S.E.2d 218 (2010); Hilburn v. Enerpipe. Ltd., 309 Kan. 1127, 442 P.3d 509 (2019); Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633 (Mo. 2012); Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711 (1989), amended by 780 P.2d 260 (Wash. 1989). 3 See also Lindenberg v. Jackson Nat'l Life Ins. Co., 912 F.3d 348, 353 (6th Cir. 2018) (holding that Tennessee Code Annotated section 29-39-104, the statute capping punitive damages, violates article I, section 6 of the Tennessee Constitution). As the Alabama Supreme Court explained, “[b]ecause the statute caps the jury’s verdict automatically and absolutely, the jury’s function, to the extent the verdict exceeds the damages ceiling, assumes less than an advisory status.” Moore, 592 So. 2d at 164. See also Smith v. Dep't of Ins., 507 So. 2d 1080, 1088-89 (Fla. 1987) (striking down a statute capping nonecomonic damages as a violation of the Florida constitutional provision guaranteeing a right of access to the courts and also commenting that “because the jury verdict is being arbitrarily capped,” the statute deprived the plaintiff of “the constitutional benefit of a jury trial as we have heretofore understood that right”). The Missouri Supreme Court pointed out that a statute imposing an arbitrary limit on damages “directly curtail[s] the individual right to one of the most significant constitutional roles performed by the jury— the determination of damages.” Watts, 376 S.W.3d at 642. The Georgia Supreme Court reasoned that, by requiring courts “to reduce a noneconomic damages award determined by a jury that exceeds the statutory limit,” a statute capping damages, “clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function.” Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d at 223 (citing Lakin v. Senco Prods., Inc., 329 Or. 62, 987 P.2d 463, 473 (1999)). Like the Kansas Supreme Court, I “simply cannot square a right specially designated by the people as ‘inviolate’ with the practical effect of the damages cap: substituting juries’ factual determinations of actual damages with an across-the-board legislative determination of the maximum conceivable amount of actual damages.” Hilburn, 442 P.3d at 523. Finally, as the Washington Supreme Court noted, a statute capping damages “directly changes the outcome of a jury determination” by altering a jury’s factual finding “to conform to a predetermined formula[,]” and thereby “robs the [jury] of its function.” Sofie, 771 P.2d at 720, 721. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 Document received by the TN Court of Appeals. Tenn. Coal & R.R. Co. v. Roddy, 85 Tenn. 400, 5 S.W. 286, 290 (1887) (emphasis added) (internal quotation marks omitted) (citing Goodall v. Thurman, 38 Tenn. 209, 218 (1858)); Dimick v. Schiedt, 293 U.S. 474, 480, 55 S.Ct. 296, 79 L.Ed. 603 (1935) (“[T]he common-law rule as it existed at the time of the adoption of the Constitution” was that “in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.” (citations and internal quotation marks omitted)). Article I, section 6 squarely places the determination of damages “within the strict province of the jury.” Roddy, 5 S.W. at 290; see also Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 419 (Tenn. 2013) (“We entrust the responsibility of resolving questions of disputed fact, including the assessment of damages, to the jury.”); Borne v. Celadon Trucking Servs., Inc., 532 S.W.3d 274, 308 (Tenn. 2017) (“Where a party invokes the right to a jury trial, our constitution requires ‘that the jury be allowed to determine all disputed issues of fact.’ ” (citations omitted)). Indeed, the jury’s constitutionally protected function of determining damages is so well established that, “[t]o avoid contravention of the right to jury trial clauses of the federal and state constitutions, the trial court must obtain the consent of the party against whom [an] additur or remittitur is to be entered; if that party does not consent, the trial court must order a new trial.” Borne, 532 S.W.3d at 309 (citing Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994); Tenn. Code Ann. §§ 20-10-101, -102 (2009)). McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 First, the majority characterizes section 29-39-102(e) as merely a permissible legislative alteration of the common law. The General Assembly unquestionably has authority to alter the common law. State v. Howard, 504 S.W.3d 260, 270 (Tenn. 2016). But, the General Assembly cannot modify the Tennessee Constitution, and that is what section 29-39-102(e) does. Article I, section 6 unequivocally declares that the common law right to trial by jury as it existed at the time of the adoption of the Tennessee Constitution “shall remain inviolate.” By this declaration, article I, section 6 divests the General Assembly of all authority to modify the common law right of trial by jury. The United States Supreme Court has succinctly explained the distinction between permissible legislation that modifies the common law and impermissible legislation that has the effect of modifying constitutional provisions: It is said that the common law is susceptible of growth and adaptation to new circumstances and situations, and that the courts have power to declare and effectuate what is the present rule in respect of a given subject without regard to the old rule; and some attempt is made to apply that principle here. The common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions. But here we are dealing with a constitutional provision which has in effect adopted the rules of the common law in respect of trial by jury as these rules existed in 1791. To effectuate any change in these rules is not to deal with the common law, qua common law, but to alter the Constitution. The distinction is fundamental.... *9 Dimick, 293 U.S. at 487, 55 S.Ct. 296 (emphasis added) (citations omitted). Other states addressing statutes capping damages have recognized this distinction as well. See Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d at 223 (rejecting the notion that the authority to modify or abrogate the common law “empowers the Legislature to abrogate constitutional rights that may inhere in common law causes of action”); Hilburn, 442 P.3d at 524 (“[T]he cap’s effect is to disturb the jury’s finding of fact on the amount of the award. Allowing this substitutes the Legislature’s nonspecific judgment for the jury’s specific judgment. The people deprived the Legislature of that power when they made the right to trial by jury inviolate.”); Sofie, 771 P.2d at 720 (“The scope of the right to trial by jury may be defined by the common law through a historical analysis, but the right itself is protected by the state constitution.”). The majority erroneously characterizes Tennessee Code Annotated section 29-39-102(e) as a permissible legislative alteration of the common law. Thus, the majority’s characterization is fatally flawed and unpersuasive. 4 Equally unconvincing is the fact-law dichotomy the majority relies upon to uphold the constitutionality of the statute. Admittedly, almost every court that has upheld statutes capping damages has relied upon this dichotomy. See Hilburn, 442 P.3d at 521-22 (“The fact-law or fact-policy distinction has been relied on in varying degrees by almost all courts that have upheld damages caps in the face of jury trialbased challenges.” (collecting cases)). But, as the Washington Supreme Court explained when rejecting it: [t]his argument ignores the constitutional magnitude of the jury’s fact-finding province, including its role to determine damages. Respondents essentially are saying that the right to trial by jury is not invaded if the jury is allowed to determine facts which go unheeded when the court issues its judgment. Such an argument pays lip service to the form of the jury but robs the institution of its function. Sofie, 771 P.2d at 721. “The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the © 2020 Thomson Reuters. No claim to original U.S. Government Works. 9 Document received by the TN Court of Appeals. The majority acknowledges that article I, section 6 protects the jury’s fact-finding determination of damages but nevertheless concludes that Tennessee Code Annotated section 29-39-102(e) does not violate article I, section 6. The majority advances several arguments to support this conclusion, but none of these arguments is persuasive. McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 futility—a façade, a sham, and a pretense. 5 “The common law and trial by jury in case of disputed facts is the birthright of the people, and the best preservative of their constitutional rights.” Rogers v. Waller, 5 Tenn. 205, 208 (1817). As this Court explained only nine years ago: *10 The citizen jury provides the foundation of this Nation’s legal system. Encroachment on the right to trial by jury was among the chief complaints registered by the American colonists in the Declaration of Independence. Alexander Hamilton considered the right to trial by jury to be “the very palladium of free government.” Thomas Jefferson believed it to be “the only anchor, ever yet imagined by man, by which government can be held to the principles of [the] Constitution.” The right to trial by jury was held in equally “high estimation” by the framers of Tennessee’s constitutions. This Court has characterized the right as “an essential element of public liberty” and as “vital ... to the security of life, liberty, and property of the citizen.” State v. Hester, 324 S.W.3d 1, 50-51 (Tenn. 2010) (footnotes omitted) (alterations in original). Just thirty years after Tennessee became a State, this Court declared: The right to a trial by jury ... is too sacred to be intermeddled with by any power upon earth; too inseparable from human happiness to be submitted to the discretion of any human Legislature; it stands upon eternal foundations, and as time grows old it grows in veneration and stability. Tipton v. Harris, 7 Tenn. 414, 419 (1824). Indeed, the Tennessee Constitution’s use of “[t]he term ‘inviolate’ connotes deserving of the highest protection.” Sofie, 771 P.2d at 721. As a judge of Tennessee’s highest court wrote in 1833: [T]he preservation of the trial by jury in all its purity is of the first importance; a strict adherence to its form, in all its parts, is not to be dispensed with, or to be considered as captious or trifling. It is to be watched with a jealous assiduity, and the slightest deviation from the established mode of proceeding regarded as affecting our dearest interests, and as such to be instantly put down—bearing constantly in our minds, that it is one of the best guards of our rights, of our property, of our liberty and our lives. Garner v. State, 13 Tenn. 160, 179 (1833) (Whyte, J.) (emphasis added). Tennessee Code Annotated section 29-39-102(e) constitutes far more than a slight deviation from the established mode and function of the jury. It amounts to a legislative usurpation of the jury’s constitutionally protected fact-finding function. As such, it should be “instantly put down” as a violation of article I, section 6. Garner, 13 Tenn. at 179. For all these reasons, I dissent from the majority’s decision and would hold that Tennessee Code Annotated section 29-39-102(e) violates article I, section 6 of the Tennessee Constitution. Sharon G. Lee, J., dissenting. The Tennessee Constitution guarantees that the “right of trial by jury shall remain inviolate.” 1 Tennessee Code Annotated section 29-39-102 (2012) (“the damages cap statute”), which forbids awards for noneconomic damages that exceed $750,000 (or $1,000,000 in catastrophic injury cases), is an unconstitutional invasion of the right to trial by jury. Thus, it cannot stand. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 Document received by the TN Court of Appeals. name.... If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.” Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325, 18 L.Ed. 356 (1866). “In other words, a constitutional protection cannot be bypassed by allowing it to exist in form but letting it have no effect in function.” Sofie, 771 P.2d at 724. The fact-law dichotomy exalts form over substance. It serves as a means of obfuscating the true effect of statutes capping damages, which is to render a jury’s constitutionally protected fact-finding function an exercise in McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 *11 Noneconomic damages include compensation for physical and emotional pain; suffering; inconvenience; disfigurement; mental anguish; emotional distress; loss of enjoyment of normal activities, benefits, and pleasures of life; and loss of physical health, well-being, or bodily functions. Tenn. Code Ann. § 29-39-101(2) (2012). Noneconomic damages are necessarily subjective and not as easily determined as economic damages, which include medical bills and lost wages. Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 210–11 (Tenn. Ct. App. 2008) (citations omitted). That is why we have long considered noneconomic damages to be especially within the province of the jury. Id. This Court has explained that “[a] jury has wide latitude in assessing non-economic damages. We trust jurors to use their personal experiences and sensibilities to value the intangible harms such as pain, suffering, and the inability to engage in normal activities.” Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 425 (Tenn. 2013). “It is not our role to second-guess the jury and to substitute our judgment....” Id. It is the jury’s role to observe the witnesses and examine the evidence to make these intangible findings—how much pain and suffering the injured person has endured, how much the quality of that person’s life has been diminished, how great is the severity and permanency of the injuries—that is, what the plaintiff has lost. Thus, the constitutional right to a jury trial requires that the “community” decide the subjective element of noneconomic damages. Johnson v. Nunis, 383 S.W.3d 122, 136 (Tenn. Ct. App. 2012) (quoting Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-02026COA-R3-CV, 2009 WL 482475, at *21 (Tenn. Ct. App. Mar. 10, 2011)). By enacting the statutory caps, the legislature has impermissibly substituted its judgment for the jury’s assessment of noneconomic damages, without regard for the value a jury might place on those intangible losses. The majority’s ruling is inconsistent with this Court’s previous decisions. Just two years ago in Borne v. Celadon Trucking Services, Inc., we reaffirmed that the jury’s role is to decide both the “type and amount of any damages awarded to the plaintiff.” 532 S.W.3d 274, 308 (Tenn. 2017) (citing Meals, 417 S.W.3d at 419–20) (emphasis added). Yet under the damages cap statute, the jury’s decision about the amount of damages is an empty exercise because of the arbitrary limitation on the jury’s award of noneconomic damages. In deference to a jury’s decision, this Court’s past rulings recognized that a jury’s verdict should be affirmed when any material evidence supported the verdict because “if it were otherwise, the parties would be deprived of their constitutional right to trial by jury.” Crabtree Masonry Co., Inc. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978) (emphasis added) (citing City of Chattanooga v. Rogers, 201 Tenn. 403, 299 S.W.2d 660, 661 ( 1956); D.M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897, 901 (1947); Dynamic Motel Mgmt., Inc. v. Erwin, 528 S.W.2d 819, 822 (Tenn. Ct. App. 1975); City of Chattanooga v. Ballew, 49 Tenn.App. 310, 354 S.W.2d 806, 808–09 (1961)). The appellate court’s role is “only to determine whether there was any substantial evidence to support the verdict; and it must be governed by the rule, safeguarding the constitutional right of trial by jury, which requires us to take the strongest legitimate view of all the evidence to uphold the verdict....” D.M. Rose & Co., 206 S.W.2d at 901 (emphasis added) (citations omitted). In addition, a court has limited authority to add to (additur) or reduce (remittitur) a jury’s award of damages. For example, an additur or remittitur cannot destroy a jury’s verdict—that is, it cannot be “so large that the resulting judgment bears no meaningful relationship to the original jury verdict.” Walton ex rel. Walton v. Tullahoma HMA, LLC, 572 S.W.3d 180, 188 (Tenn. Ct. App. 2018), perm. app. denied (Tenn. Oct. 10, 2018); see also Johnson, 383 S.W.3d at 134 (quoting Long v. Mattingly, 797 S.W.2d 889, 896 (Tenn. Ct. App. 1990)) (“ ‘[A]djustments that ‘totally destroy’ the jury’s verdict are impermissible.’ ”). Also, a court may not force a party to accept the increased or reduced award. Additur and remittitur are constitutionally permissible only because a party does not have to accept the modified award and can receive a new trial. Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994) (holding that the right to a jury trial © 2020 Thomson Reuters. No claim to original U.S. Government Works. 11 Document received by the TN Court of Appeals. Section 29-39-102 improperly “amends” Article I, section 6 of the Tennessee Constitution to diminish the right to trial by jury. Now section 6 might as well read: “the right of trial by jury shall remain inviolate—as long as the jury, which has considered all the evidence and followed the law, awards an injured party less than $750,000 in noneconomic damages (or more than $1,000,000 when the injuries are catastrophic).” Under this legislative “amendment” to the Constitution, a jury’s verdict for noneconomic damages is meaningless when the verdict exceeds the damages cap. The cap on damages is one-size-fits-all and fails to consider the extent of a party’s noneconomic losses. And the injured party has to accept the reduced award of damages. Thus, the damages cap statute unconstitutionally takes away a citizen’s right to trial by jury on noneconomic damages. The jury’s role in a civil jury trial becomes a mere procedural formality. McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 *12 In Borne, this Court held that a trial court must obtain the plaintiff’s consent before reducing a jury’s award of damages “[t]o avoid contravention of the right to jury trial clauses of the federal and state constitutions.” 532 S.W.3d at 309 (emphasis added) (citations omitted). Likewise, the United States Supreme Court has held that mandatory remittitur without the option of a new trial violates the plaintiff’s right to trial by jury under the Seventh Amendment to the United States Constitution. 2 Hetzel v. Prince William Cnty., Va., 523 U.S. 208, 211, 118 S.Ct. 1210, 140 L.Ed.2d 336 (1998) (citations omitted) (holding that an appellate court’s order that required a trial court to enter judgment for less than the jury’s verdict without the option of a new trial “cannot be squared with the Seventh Amendment”). Thus, if courts cannot require a party to accept a reduction in a jury’s award of damages, then it stands to reason that the legislature cannot by statutory enactment preempt a jury’s award. By usurping the jury’s role in awarding noneconomic damages, the General Assembly has, in effect, amended Article I, section 6 of the Tennessee Constitution to dilute the right to trial by jury so it is no longer inviolate. But the General Assembly may only propose a constitutional amendment; it is up to the voters to amend the Constitution by ratification. Tenn. Const. art XI, § 3, 3 Illustration Design Grp., Inc. v. McCanless, 224 Tenn. 284, 454 S.W.2d 115, 118 (1970) (citing Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 924 (1949); Derryberry v. State Bd. of Election Comm'rs, 150 Tenn. 525, 266 S.W. 102, 105 (1924)). 4 Under Article 11, section 3, if a majority of the members of the Senate and House of Representatives approves a resolution to amend the Constitution, and if in the next session of the General Assembly the proposed amendment is approved by two-thirds of the members of both houses, then the voters at the next general election may ratify the amendment. Tennessee voters, in deciding whether to amend the Constitution to cap damages awards, could consider that the purpose of the amendment is to help businesses. 5 Voters could also consider whether the damages cap is a solution looking for a problem. In every year since 2000, the average combined amount of economic and noneconomic damages awarded in tort cases has been far below the amount of the statutory cap for noneconomic damages. 6 Thus, in Tennessee, we do not have a problem with “runaway juries.” The damages cap applies to only a few cases each year and affects the most seriously injured individuals. *13 Legal analysis aside, we should not ignore the real-life consequences of the damages cap statute. For example, in 2002, six-year-old Billy Meals was involved in a car wreck. Meals, 417 S.W.3d at 417–18. The collision seriously injured Billy and killed his father and grandfather. Id. at 418. The force of the impact fractured Billy’s spine. He also suffered a closed head injury and massive internal injuries. Id. Billy spent nearly two months in the hospital undergoing many surgeries, including removal of part of his small intestine, bowel resection, and a spinal fusion requiring the placement of rods, screws, and wires in his back, followed by nearly a month in a rehabilitation facility. Id. He returned to the hospital several times for treatment of infections and other complications. Id. Billy became a paraplegic; he would never run or walk again. Id. at 424. He had to have ongoing physical therapy. Id. His legs atrophied, and his toes became clawlike. Id. Billy’s doctors said he would likely never father a child or have normal sexual functioning. Id. His doctors expected that Billy would suffer from frequent infections and medical problems for the rest of his life, estimated to be 55.79 years. Id. Billy’s mother sued on his behalf. The jury awarded Billy a substantial verdict that included more than $1,000,000 in noneconomic damages. Id. at 417. The Court of Appeals suggested that his verdict be reduced by 70.55% or that a new trial be granted. Id. at 417. This Court reversed the Court of Appeals and affirmed the jury’s award, finding the Court of Appeals had gone too far in its suggested reduction and that the verdict was reasonable and properly supported by the evidence. Id. at 428. Had Billy’s injuries occurred after October 1, 2011, when the damages cap statute went into effect, he would have received only $1,000,000 in noneconomic damages—a 97.5% reduction in the noneconomic damages the jury had awarded and this Court found to be reasonable. Had the verdict been reduced by 97.5%, the remittitur would have destroyed the jury’s verdict and would have been impermissible. See Myers v. Myers, No. E2004-02135-COA-R3-CV, 2005 WL 1521952, at *5 (Tenn. Ct. App. June 27, 2005) (concluding that a 70% remittitur destroyed the jury’s verdict); Guess v. Maury, 726 S.W.2d 906, 913 (Tenn. Ct. App. 1987) (holding © 2020 Thomson Reuters. No claim to original U.S. Government Works. 12 Document received by the TN Court of Appeals. under both the Tennessee and United States Constitutions requires a defendant’s consent to an additur because the trial court is “essentially disagreeing with the jury’s determination of damages—which is a question of fact” required to be decided by the jury); McCall v. Waer, 487 S.W.2d 308, 310 (Tenn. 1972) (stating that additur does not impinge on the defendant’s constitutional right to a jury trial because a defendant can refuse additur and have a new trial). McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 Consider whether $1,000,000 (or realistically, a net recovery of less than two-thirds of the $1,000,000 after payment of lawyer fees and litigation expenses) would have been adequate and fair compensation for Billy’s physical and emotional pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; loss of enjoyment of normal activities, benefits, and pleasures of life; and loss of physical health, well-being or bodily functions. Not at all. We are just beginning to see the unfortunate effects the damages cap statute is having on persons injured after October 1, 2011. Courts are being forced to disregard the damages that juries—after considering the evidence presented at trial and being duly instructed on the law—have awarded to injured parties only because the injuries occurred after October 1, 2011. See, e.g., Wortham v. Kroger Ltd. P’ship I, No. CT-003147-17, 2019 WL 1958147, at *1 (Tenn. Cir. Ct. Feb. 11, 2019) (Trial Order) (reducing noneconomic damages to injured plaintiff by 71%); Patterson v. STHS Heart, LLC, No. 15C1058, 2019 WL 1291942, at *1 (Tenn. Cir. Ct. Jan. 28, 2019) (Trial Order) (reducing noneconomic damages awarded by the jury by 92% in a wrongful death case); Yebuah v. Ctr. for Urological Treatment, PLC, No. 14C4972, 2018 WL 1901975, at *2 (Tenn. Cir. Ct. Mar. 19, 2018) (Trial Order) (reducing noneconomic damages by 83% in a case in which a medical provider left a foreign object in a patient’s body for eight years after surgery); Reid v. Hunt, No. CT-005475-11, 2016 WL 8650047, at *1 (Tenn. Cir. Ct. Nov. 28, 2016) (Trial Order) (reducing noneconomic damages by 59% where a plaintiff lost both legs after being hit by a drunk driver). The majority tries to justify its holding with two basic arguments, neither of which holds water. First, the majority points to the General Assembly’s authority to alter common law causes of action and available remedies, citing Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000). But Lavin does not apply. In Lavin, the Supreme Court considered the meaning of Tennessee Code Annotated section 37-10-103(a), not its constitutionality. Section 37-10-103(a) was a statutory remedy designed “to alleviate the harshness of the common law rule” that parents could not be held liable for their children’s intentional torts. 16 S.W.3d at 366. The statute allowed lawsuits against negligent parents whose children intentionally caused personal injuries or property damage. Id. The statute in Lavin, therefore, gave tort victims something that had not existed at common law, so the right to trial by jury that accompanies a common law action was never implicated. The damages cap statute neither creates nor abolishes a cause of action, and it does not create a statutory remedy that did not exist at common law. Instead, the statute impermissibly takes away the right to a jury trial constitutionally vested in causes of action, such as negligence, that existed under common law. *14 The majority suggests that the General Assembly simply exercised its power to alter the common law by enacting the statutory cap. But the damages cap statute did not change the common law negligence cause of action. As long as the negligence cause of action is available, parties injured because of the carelessness of others have the constitutional right to have a jury decide the amount of fair and adequate compensation. The right to a jury trial is a constitutional right that cannot be eliminated by the enactment of a statute. As the United States Court of Appeals for the Sixth Circuit noted when it held that the cap on punitive damages in Tennessee Code Annotated section 29-39-104 (2012 & Supp. 2019) violated the Tennessee Constitution, 7 the argument that the General Assembly has the authority to alter the common law “merely begs the question” because that authority has constitutional limits. Lindenberg v. Jackson Nat'l Life Ins. Co., 912 F.3d 348, 367 (6th Cir. 2018) (citing Lavin, 16 S.W.3d at 368). For statutory damages caps, the authority of the General Assembly is constrained by “the constitutional right to submit factual questions for determination by a jury.” Id. at 368. The Lindenberg court also rejected the applicability of Lavin because the only issue before the Lavin court was statutory construction, not the constitutionality of caps on damages. Id. The majority also notes that the General Assembly has the authority to eliminate causes of action that existed under common law, pointing out statutes abolishing the torts of alienation of affection, seduction, and criminal conversation. That’s true. Once a common law tort is abolished, the right to a jury trial for that cause of action ends. But here, the injured party’s claim was based on negligence, and the legislature has not abolished negligence as a cause of action. Thus, the right to trial by jury in a negligence cause of action remains (or should remain) inviolate. Other jurisdictions hold that the legislature’s authority to modify the common law does not justify taking away the © 2020 Thomson Reuters. No claim to original U.S. Government Works. 13 Document received by the TN Court of Appeals. that a 75% remittitur destroyed the jury’s verdict), overruled on other grounds by Elliott v. Cobb, 320 S.W.3d 246 (Tenn. 2010). McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 *15 The majority’s second justification for upholding the statutory caps is that the jury still determines the amount of any noneconomic damages sustained by an injured party, and it is only after the jury returns its verdict that the trial court applies the cap and cuts the award. This is smoke and mirrors. A jury’s award of damages that exceeds the damages cap is ignored; the jury might as well have not deliberated and made its award. The Supreme Courts in Kansas, Alabama, Missouri, Washington, and Georgia, whose constitutions contain the same “inviolate” right to a jury trial provision as in the Tennessee Constitution, have rejected the majority’s analysis and held that the cap on damages is unconstitutional. The Kansas Supreme Court in Hilburn observed that even if a damages cap is found to be “technically or theoretically applied as a matter of law,” it intrudes on the amount of the award that the jury has found as an issue of fact. 442 P.3d at 524. This intrusion “substitutes the Legislature’s nonspecific judgment for the jury’s specific judgment. The people deprived the Legislature of that power when they made the right to a jury trial inviolate.” Id. The Alabama Supreme Court also soundly rejected the same hyper-technical argument in Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 163 (Ala. 1991), noting that it was irrelevant that the right to empanel a jury still existed—the relevant inquiry was whether the jury’s function was impaired. The Moore court determined that the caps relegated the jury’s verdict to “less than an advisory status,” which did not satisfy the constitutional mandate. Id. at 164. The Missouri Supreme Court rejected the justification that the cap on damages was constitutional when the jury was nominally allowed to determine damages before the judge applied the cap because “a statutory limit on the state constitutional right to trial by jury amounts to an impermissible legislative alteration of the Constitution.” Watts, 376 S.W.3d at 642 (citing State ex rel. Diehl v. O'Malley, 95 S.W.3d 82, 92 (Mo. 2003); Mo. Alliance for Retired Ams. v. Dep't of Labor and Indust. Relations, 277 S.W.3d 670, 682 (Mo. 2009)). The Washington Supreme Court also rejected this distinction in Sofie when the defendants argued that the cap on damages only affected the judgment ultimately entered by the court but did not affect the jury’s finding of fact. 771 P.2d at 721. In other words, the defendants argued that the jury trial right was not violated if the jury was allowed to make a factual finding on damages that would be ignored when the court issued the judgment. Id. The court observed that “[s]uch an argument pays lip service to the form of the jury but robs the institution of its function” and that it was impermissible to bypass a constitutional right “by allowing it to exist in form but letting it have no effect in function.” Id. at 721, 724. Similarly, the Georgia Supreme Court cited longstanding United States Supreme Court precedent in stating that “ ‘[t]he right to a jury trial includes the right to have a jury determine the amount of ... damages, if any, awarded to the [plaintiff].’ ” Nestlehutt, 691 S.E.2d at 222 (second emphasis added) (quoting Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998)). The Nestlehutt court found that the statutory cap on damages violated the constitutional right to a jury trial because the cap nullified the jury’s findings of fact on damages and undermined the jury’s basic function by requiring the trial © 2020 Thomson Reuters. No claim to original U.S. Government Works. 14 Document received by the TN Court of Appeals. constitutional right to trial by jury. See Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 691 S.E.2d 218, 223 (2010) (stating that although “the Legislature has authority to modify or abrogate the common law,” it is not entitled “to abrogate constitutional rights that may inhere in common law causes of action”); Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 442 P.3d 509, 516 (2019) (quoting Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098, 1140 (2012) (Beier, J., concurring in part and dissenting in part)) (correcting course and overturning its prior ruling that statutory damage caps were constitutional, stating that although the legislature had the power to modify common law, when the people elevated the common law right to a jury trial to “enumerated constitutional status” by ratifying the state constitution, they put that right “beyond everyday legislative meddling”); Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 643 (Mo. 2012) (observing that if constitutional protections existed only until the legislature took them away, their value would be purely theoretical and “would not be rights at all but merely privileges that could be withdrawn”); Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711, 720 (1989) (“Because of the constitutional nature of the right to jury trial, ... it simply cannot be removed by legislative action.... [The right to jury trial] remains as long as the cause of action does. Otherwise, [the constitutional jury trial guarantee] means nothing.”); see also Dimick v. Schiedt, 293 U.S. 474, 487, 55 S.Ct. 296, 79 L.Ed. 603 (1935) (“To effectuate any change in [the constitutional right to trial by jury] is not to deal with the common law, qua common law, but to alter the Constitution. The distinction is fundamental....”). McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 *16 Finally, the United States Court of Appeals for the Sixth Circuit in Lindenburg rejected the argument that the damages cap on punitive damages did “not invade the province of the jury” because the jury made the factual finding when it assessed the plaintiff’s damages, and the trial court then reduced the verdict to comply with the law. 912 F.3d at 369. The Lindenburg court characterized this argument as “the parties’ attempt to recast the General Assembly’s invasion of the province of the jury as akin to a regulation of remittitur,” which this Court has repeatedly rejected. Id. The Lindenburg court emphasized that “allowing a trial judge, after considering the attendant circumstances and proof in a case, to offer a plaintiff the choice to avoid a new trial is a far cry from legislatively reversing a jury’s assessment of the amount of damages....” Id. at 369–70. It goes without saying that this Court does not make policy —that is for the legislature. Smith v. Gore, 728 S.W.2d 738, 747 (Tenn. 1987) (quoting Cavender v. Hewitt, 145 Tenn. 471, 239 S.W. 767, 768 (1921)); Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345, 350 (1968) (citations omitted). Tennessee Code Annotated section 29-39-102 is unconstitutional without regard to the General Assembly’s purpose in enacting it or the real-life fallout from it. The majority’s decision that Tennessee Code Annotated section 29-39-102 is constitutional tells the citizens of Tennessee that their right to trial by jury and their right to be fairly compensated for noneconomic damages are trumped by the desire to limit the financial exposure of big corporations and insurance companies in civil negligence lawsuits. I will not join in sending this message. I dissent. Holly Kirby, J., concurring. I join fully in the majority’s conclusion that the statutory cap on noneconomic damages enacted by our legislature does not violate either the separation of powers clause or the equal protection clause in the Tennessee Constitution. A much closer question is presented on whether the statutory cap violates the clause in the Tennessee Constitution guaranteeing a right to trial by jury. I agree with the majority’s analysis and conclusion on this issue but write separately to further explain my reasoning. In her scholarly dissent, Justice Clark explains the significance Tennessee’s founding citizens placed on the right to a jury trial, putting language in the Constitution that makes the right “inviolate,” and argues forcefully that the statutory cap on noneconomic damages is “a legislative usurpation of the jury’s constitutionally protected fact-finding function.” I agree that our founding citizens considered the right to a jury trial to be of profound importance. However, the plaintiffs in this case have not shown that the constitutional right to a jury trial was intended to protect plaintiffs from substantive legislative enactments limiting noneconomic damages. I agree with Maryland’s High Court that “the constitutional right to a jury trial is concerned with whether the court or the jury shall decide those issues which are to be resolved in a judicial proceeding.” Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102, 116 (1992) (citations omitted). In holding that Maryland’s statutory cap on noneconomic damages did not violate the right to a jury trial in Maryland’s constitution, the Maryland Court in Murphy explained: If the General Assembly had provided in [the statutory cap on noneconomic damages] that the trial judge, rather than the jury, should determine the amount of noneconomic damages or the amount of noneconomic damages in excess of $350,000, a substantial issue concerning the validity of the statute would be presented. The General Assembly, however, did not attempt to transfer what is traditionally a jury function to the trial judge. Instead, the General Assembly abrogated any cause of action for noneconomic tort damages in excess of $350,000; it removed the issue from the judicial arena. No question exists concerning the role of the judge versus the jury with respect to noneconomic tort damages in excess of $350,000. Therefore, no question concerning the constitutional right to a jury trial is presented. *17 Murphy, 601 A.2d at 117. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 15 Document received by the TN Court of Appeals. court to reduce the jury’s award to comply with the statutory cap. Id. at 223. McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 ___”]. 1 The arguments of those advocating a right to jury trial “centered on their belief that the courts should not become the exclusive province of the judges.” Id. at 599. 2 The right to jury trial served not only as a “symbol of democracy” but also a “restraint on judicial power.” Id. at 600. In post-revolutionary America, the conflicts surrounding juries focused on the degree to which judges should be allowed to intrude on the jury’s role. Id. at 597–605 (describing several such conflicts). For example, in some states during this era, juries generally “had the right to decide questions of law as well as fact.” Id. at 602. 3 This practice had proven useful when juries helped colonists resist unfair laws foisted upon them by British authorities. 4 Id. at 594–95. *18 Demand for a more predictable justice system for the new nation eventually “led to the curtailment of the jury’s power, especially with respect to the determination of law.” Id. at 605 (citations omitted). States, including Tennessee, settled on a power-sharing arrangement, in both civil and criminal cases, in which “the judges should adjudicate finally upon the whole question of law, and the jury upon the whole question of fact.” Sparf v. United States, 156 U.S. 51, 80, 15 S.Ct. 273, 39 L.Ed. 343 (1895) (citing Commonwealth. v. Anthes, 71 Mass. 185, 193 (1855)); Hopkins v. Nashville, Chattanooga & St. Louis Ry., 96 Tenn. 409, 34 S.W. 1029, 1031 (1896) (citation omitted) (“The jury are a body of laymen, selected by lot, to ascertain, under the guidance of a judge, the truth, in questions of fact.... Their province is strictly limited to questions of fact, and within that province they are still further restricted to the exclusive consideration of matters that have been proved by evidence in the course of the trial.”). As described by the Maryland Court in Murphy, the genesis of the right to jury trial was establishing the role of juries visà-vis judges. Murphy, 601 A.2d at 117. The right to jury trial is not implicated by the legislature’s alteration of the remedies available to litigants. Respectfully, this distinction explains much of how Justice Lee’s dissent goes astray. The Lee dissent cites case after case on remittitur and additur, which of course involve judicial actions that impact juries’ factual findings. Since the constitutional right to a jury trial concerns directly whether the court or the jury will decide issues in a judicial proceeding, of course there are many cases cautioning that judges’ undue use of remittitur and additur may contravene the Constitution. See, e.g., Borne v. Celadon Trucking Servs., Inc., 532 S.W.3d 274, 309 (Tenn. 2017) (citations omitted) (“To avoid contravention of the right to jury trial clauses of the federal and state constitutions, the trial court must obtain the consent of the party against whom the additur or remittitur is to be entered; if that party does not consent, the trial court must order a new trial.”); Johnson v. Nunis, 383 S.W.3d 122, 136 (Tenn. Ct. App. 2012) (quoting Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-02026-COA-R3CV, 2009 WL 482475, at *21 (Tenn. Ct. App. Mar. 10, 2011)) (“[T]he determination of such non-pecuniary losses as pain and suffering damages involves a subjective element not present in the determination of ordinary facts. The jury trial guarantee requires that the subjective element involved be that of the community and not of judges.” (emphasis added)). Appellate decisions indicating that a judge’s undue limitation on a jury’s damage assessment may violate the constitutional right to jury trial are of no use to determine whether the legislature’s enactment does so, even for purpose of analogy. None of these cases elucidate how the constitutional right to jury trial, intended to limit judges’ interference with juries, applies to legislative action limiting remedies available to claimants. Indeed, at least one specifically differentiates between the courts and the legislature in this regard. See Meals v. Ford Motor Co., No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *23 (Tenn. Ct. App. Apr. 13, 2012) (Kirby, J., dissenting in part) (“In the absence of a basis under the law for [the majority’s] remittitur, I believe that the majority’s decision amounts to a policy determination, limiting the size verdict a jury may award. It may be that our Legislature can appropriately make such a policy decision, © 2020 Thomson Reuters. No claim to original U.S. Government Works. 16 Document received by the TN Court of Appeals. Maryland’s interpretation is borne out by the national discussion among American revolutionaries during the time period in which Tennessee attained Statehood in 1796 and the accompanying adoption of the 1796 Constitution declaring “[t]hat the Right of trial by Jury shall remain inviolate.” Tenn. Const. art. XI, § 6 (1796). During this period, “the jury represented the most effective means available to secure the independence and integrity of the judicial branch of the colonial government” and the struggle with British authorities “over jury rights was, in reality, an important aspect of the fight for American independence.” Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 Hastings L.J. 579, 596 (1993) [hereinafter “Landsman, The Civil Jury in America, 44 Hastings L.J. at McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 Putting “[l]egal analysis aside,” the Lee dissent then goes on to castigate Tennessee’s legislature for enacting a statute with which the dissent disagrees based on policy. It cites statistics suitable for a legislative committee hearing and describes in vivid detail the injuries in Meals, cited above, as an example of how the legislature’s policy choice will be unfair to such seriously injured claimants. 5 *19 This Court has on occasion expressed dislike for particular statutes. See, e.g. Lavin v. Jordon, 16 S.W.3d 362, 369–70 (Tenn. 2000) (“[W]e find that the result compelled by the statute in this case is particularly distasteful in that the plaintiffs ... are denied the opportunity to be made whole for their loss.... Perhaps the General Assembly will revisit the issue of whether the statutory cap on damages contained in section 37-10-102 provides an adequate and sufficient remedy....”). Importantly, this is normally done to demonstrate that this Court will uphold statutes despite displeasure with the legislature’s policy choice. It reinforces the principle of judicial restraint, demonstrating that the Court adheres to the longstanding precept that “[T]he wisdom, or unwisdom of a statute lies solely with the Legislature and is not the concern of the Court.” Hoover Motor Exp. Co. v. Hammer, 201 Tenn. 270, 298 S.W.2d 724, 726 (1957) (citing Davidson Cnty. v. Rogers, 184 Tenn. (20 Beeler), 327, 331– 332, 198 S.W.2d 812 (1947)). Unfortunately, the Lee dissent does the converse. In a case in which this Court is asked to render one of the most consequential decisions any court can make—hold a statute unconstitutional—the Lee dissent first strongly advocates striking down Tennessee Code Annotated section 29-39-102 as unconstitutional, and then describes at length why the dissent disagrees with the legislature’s policy decision to enact it in the first place. This sequence could give a misimpression that the two points are linked. This Court has stated: A challenge to a statute’s constitutionality does not give the Court a license to secondguess the General Assembly’s policy judgments.... It is not our prerogative to inquire into the motives of the General Assembly. Nor may we review the statute’s wisdom, expediency, reasonableness, or desirability. These are matters entrusted to the electorate, not the courts. Waters v. Farr, 291 S.W.3d 873, 917–18 (Tenn. 2009) (citations and footnotes omitted). Admittedly, this can sometimes be a hard principle to maintain. But maintain it we must. For all of the reasons discussed herein, I concur in the majority opinion. All Citations --- S.W.3d ----, 2020 WL 915980 Footnotes 1 2 3 4 We note that the statutory cap on noneconomic damages was enacted to apply prospectively and thus raises no issues regarding constitutional prohibitions against retrospective laws. The parties vigorously disputed this issue in this case. We conclude that the resolution of this issue is not material to the resolution of this case. In her dissent, Justice Lee states that “[t]he statute in Lavin, therefore, gave tort victims something that had not existed at common law, so the right to trial by jury that accompanies a common law action was never implicated.” Respectfully, we disagree. In fact, the Lavin Court specifically held that [b]ecause the General Assembly sought to regulate by statute that which was already governed by common law, and because a conflict exists with respect to damages between the parental liability statute and the common law, we must hold that the statute prevails over the common law and that damages in this case are capped at $10,000. In her dissent, Justice Clark contends that Lavin is distinguishable because it did not involve a challenge to the constitutionality of the statutory cap. In fact, we do not rely on Lavin for that proposition. Instead, we have cited Lavin © 2020 Thomson Reuters. No claim to original U.S. Government Works. 17 Document received by the TN Court of Appeals. but the courts are not authorized to do so.”), rev'd sub nom. Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414 (Tenn. 2013). McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 5 6 7 1 2 3 4 5 because it is highly persuasive on the issue of the General Assembly’s authority to alter the common law, given that the Lavin Court specifically held that a common law tort had been superseded by a statute including a damages cap. As the Lavin Court made clear, this by no means should be interpreted as our agreement with the public policy choice adopted by the General Assembly. See Lavin, 16 S.W.3d at 369. Both dissents rely upon our decision in Borne v. Celadon Trucking Services, Inc., 532 S.W.3d 274 (2017), for the proposition that a plaintiff must consent to a reduction of a jury verdict to avoid a violation of the constitutional right to a jury trial if one is suggested by the trial court. We did so hold in Borne. However, the dissents then make the leap to apply this reasoning to the statutory caps adopted by the legislature. This fails to recognize the critical distinction of the lack of authority of a trial judge to alter the common law as opposed to the General Assembly expressly having that authority. See Mills, 155 S.W.3d at 923. Moreover, the dissents’ position fails to recognize the distinction between a trial judge suggesting an additur or remittitur because the trial judge disagrees with the reasonableness of the jury’s assessment of damages based on the evidence presented and the application of a statutory cap on damages as a matter of law. While the instant case involves the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102, we acknowledge that the United State Court of Appeals for the Sixth Circuit in Lindenberg v. Jackson National Life Insurance Company, 912 F.3d 348 (6th Cir. 2018), held that the statutory cap on punitive damages in Tennessee Code Annotated section 29-39-104 violates the right to a jury trial under the Tennessee Constitution. As a preliminary matter, we note that decisions by federal circuit court of appeals are not binding on this Court. Frazier v. E. Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 928 (Tenn. 2001). We also find the reasoning of the majority in Lindenberg unpersuasive in this case. Moreover, in Lindenberg, we declined to accept a certified question from the federal district court regarding the constitutionality of the statutory cap on punitive damages because antecedent questions regarding the availability of those damages had not also been certified. Lindenberg v. Jackson Nat'l Life Ins. Co., No. M2015-02349-SC-R23-CV (Tenn. June 23, 2016) (per curiam). In our order declining to answer the certified questions, we stated: “Nothing in the Court’s Order is intended to suggest any predisposition by the Court with respect to the United States Court of Appeals for the Sixth Circuit’s possible certification to this Court of both the question of the availability of the remedy of common law punitive damages in addition to the remedy of the statutory bad faith penalty and the question of the constitutionality of the statutory caps on punitive damages, in the event of an appeal from the final judgment in this case.” Id. The Sixth Circuit majority, however, chose not to certify such questions to this Court, and, instead, held that the statutory cap on punitive damages violates the right to trial by jury under the Tennessee Constitution. We simply point out that the procedure for certifying questions of state law to this Court is designed to promote judicial efficiency and comity, and to protect this State’s sovereignty. See Yardley, 470 S.W.3d at 803; see also Lindenberg, 912 F.3d at 371-72 (observing that the constitutionality of the punitive damages cap is an unsettled question on which there is no Tennessee Supreme Court authority and is ideally suited for certification) (Larson, J., dissenting). However, we note that the statutory cap on punitive damages in Tennessee Code Annotated section 29-39-104 is not at issue in this case, and we express no opinion on this issue. Because we hold that a disparate impact, without evidence of discriminatory purpose, is not cognizable under the equal protection provisions of the Tennessee Constitution, we need not examine the veracity of Plaintiff’s disparate impact allegations. We note, however, that Plaintiff has done little more than reference a 2004 law journal article regarding tort reform, and has provided no evidence that Tennessee’s statutory cap on noneconomic damages has a disparate impact on women in Tennessee. Tenn. Const. art. XI, § 6 (1796); Tenn. Const. art. I, § 6 (1834); Tenn. Const. art. I, § 6 (1870). The full text of article I, section 6, the current constitutional guarantee, states “[t]hat the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors.” Tenn. Const. art. I, § 6 (1870). The parties do not dispute that the constitutional right to trial by jury applied at common law to personal injury tort claims, although some dispute has arisen about whether noneconomic damages were available at common law. The majority has assumed for purposes of this appeal that such damages were available, so I have accepted that assumption as well. Although eight other state courts interpreting constitutional provisions that use the term “inviolate” to secure the right of trial by jury have upheld statutory damages caps, five other state courts have struck down statutory damages caps as unconstitutional under constitutional provisions that use the term “inviolate” to describe the jury trial right. Hilburn, 442 P.3d at 522-23 (Kan. 2019) (collecting cases). The majority’s reliance upon Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000), also is misplaced. There was no challenge in Lavin to the constitutionality of the statute capping damages at $10,000. Also unpersuasive is the defendant’s argument that statutes capping damages are no different than statutes multiplying damages. A statute capping damages arbitrarily and unconstitutionally usurps and alters a jury’s constitutionally protected © 2020 Thomson Reuters. No claim to original U.S. Government Works. 18 Document received by the TN Court of Appeals. 2020 WL 915980 McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 3 4 5 6 7 1 2 The Seventh Amendment to the United States Constitution guarantees the right to trial by jury: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved....” U.S. Const. amend. VII. Any amendment ... to this Constitution may be proposed in the Senate or House of Representatives, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment ... shall be entered on their journals with the yeas and nays thereon, and referred to the general assembly then next to be chosen; and shall be published six months previous to the time of making such choice; and if in the general assembly then next chosen ... such proposed amendment ... shall be agreed to by two-thirds of all the members elected to each house, then it shall be the duty of the general assembly to submit such proposed amendment ... to the people at the next general election in which a Governor is to be chosen. And if the people shall approve and ratify such amendment ... by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment ... shall become a part of this Constitution. When any amendment ... to the Constitution shall be proposed in pursuance of the foregoing provisions the same shall at each of said sessions be read three times on three several days in each house. Tenn. Const. art. XI, § 3. Perhaps to avoid constitutional problems with the damages cap statute, resolutions were introduced in 2019 in the Senate and House of Representatives to amend the Constitution to add: “The legislature has the power to enact laws limiting the amount of noneconomic and punitive damages in civil actions, and any such limit does not diminish the right of trial by jury.” H.J.R. 135, 111th Gen. Assemb., 1st Reg. Sess. (Tenn. 2019); S.J.R. 176, 111th Gen. Assemb., 1st Reg. Sess. (Tenn. 2019). Statements made during the debate on noneconomic damages caps in the Tennessee House of Representatives make it clear that the sole purpose of the caps was to provide businesses with financial certainty in litigation. Representative Gerald McCormick explained that now businesses “can run their numbers and say ... if we really mess up or one of our employees really makes a mistake, well, we're gonna pay for it, but at least we know how much we're gonna have to pay, we don't think it'll bankrupt us. We can plan for it.” Hearings on H.B. 2008 Before the H. Comm. on the Judiciary, 107th Gen. Assemb. (Tenn. May 9, 2011). Former United States Senator Fred Thompson, testifying before the Tennessee Senate, commented, “This is a civil justice act, and all I've heard about is business” and stated that “the desire for certainty [for businesses] ... [is] going to do grave injustice to our system.” Hearings on S.B. 1522 Before the S. Comm. on the Judiciary, 107th Gen. Assemb. (Tenn. Apr. 19, 2011). Representative Sherry Jones opposed the statutory caps because “we're about to do some really bad things to some people that may not have much to start with because we're trying to help businesses.... I just can't vote for something that I think is going to hurt ... average people in the long run.” Hearings on H.B. 2008 Before the H. Comm. on the Judiciary, 107th Gen. Assemb. (Tenn. May 9, 2011) (emphasis added). Average damages awards in Tennessee that include both economic and noneconomic damages for fiscal years: Annual Report of the Tennessee Judiciary, Fiscal Years 2000-2001 through 2017-2018. The United States Supreme Court denied certiorari, allowing the Sixth Circuit’s ruling to stand. Jackson Nat'l Life Ins. Co. v. Lindenburg, ––– U.S. ––––, 140 S.Ct. 624, ––– L.Ed.2d –––– (2019). Participants in the First Continental Congress in 1774 protested royal administrators’ acts to remove certain categories of cases to England for trial and interfere with the election of jurors; they adopted a declaration stating that the colonies were “entitled ... to the great and inestimable privilege of being tried by their peers of the vicinage....” Declaration and Resolves of the First Continental Congress, Res. 5 (1774), available at https://www.ushistory.org/declaration/related/decres.html. Advocates of a constitutional right to jury trial frequently cited a statement by Blackstone: © 2020 Thomson Reuters. No claim to original U.S. Government Works. 19 Document received by the TN Court of Appeals. 1 2 determination of damages. A statute multiplying damages adopts and validates a jury’s constitutionally protected determination of damages and utilizes that determination to implement a policy decision that certain conduct should be further penalized. See Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d at 224 (“Nor does ... the existence of statutes authorizing double or treble damages attest to the validity of the caps on noneconomic damages.... [T]reble damages do not in any way nullify the jury’s damages award but rather merely operate upon and thus affirm the integrity of that award.”). Tenn. Const. art. XI, § 6 (1796); Tenn. Const. art. I, § 6 (1834); Tenn. Const. art. I, § 6 (1870). McClay v. Airport Management Services, LLC, --- S.W.3d ---- (2020) 2020 WL 915980 4 5 End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 20 Document received by the TN Court of Appeals. 3 The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity; it is not to be expected from human nature that the few should be always attentive to the interests and good of the many. Landsman, The Civil Jury in America, 44 Hastings L.J. at 599–600 (quoting William Blackstone, 3 Commentaries on the Laws of England 682 (1783) (Nourse Publishing Co. 1959)). See also John T. Nockleby, What’s a Jury Good For? 9 n.19 (Loyola-LA Legal Studies, Paper No. 2007-15, 2005) [hereinafter “Nockleby, What’s a Jury Good For?, at ___”] (citing Leonard Levy, The Palladium of Justice 56–57 (1999)), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=965065 (“For more than a century bracketing the founding of the country, many authorities insisted that the jury had the right and power to determine for itself the law as well as the facts.”). It is unclear whether North Carolina had this practice in the late 1700s when Tennessee became a state. See also Sparf v. United States, 156 U.S. 51, 89–90, 15 S.Ct. 273, 39 L.Ed. 343 (1895) (quoting Whart. Cr. Pl. (8th Ed.) § 806) (citing Williams v. State, 32 Miss. (3 George) 389, 396 (1856)) (explaining that indications by some “in the early history of the country” that juries could disregard the law as given by the court were likely because “in many of the states the arbitrary temper of the colonial judges, holding office directly from the crown, had made the independence of the jury, in law as well as in fact, of much popular importance.”). In my partial dissent in Meals, I described in detail the evidence of Billy Meals’ grievous injuries, but I did not put “[l]egal analysis aside”; detailing that evidence was pertinent to the legal analysis. It demonstrated that the evidence fully supported the jury’s verdict and did not support the intermediate appellate majority’s significant remittitur of the jury’s verdict. Meals, 2012 WL 1264454, at *25 (Kirby, J. dissenting in part). This Court granted permission to appeal and reversed the remittitur on that basis. See Meals, 417 S.W.3d 414. PROJECT REFLECT INC. Smithson Craighead Middle..., 2013 WL 12371284... 2013 WL 12371284 (M.D.Tenn.) (Trial Motion, Memorandum and Affidavit) United States District Court, M.D. Tennessee. Nashville Division PROJECT REFLECT INC. Smithson Craighead Middle School, et al., Plaintiffs, v. METROPOLITAN NASHVILLE BOARD OF PUBLIC EDUCATION, et al., Defendants. No. 3:13-CV-00341. April 30, 2013. Memorandum of Law in Support of Motion to Dismiss by Defendant Metropolitan Nashville Board of Public Education The Department of Law of the Metropolitan Government of Nashville and Davidson County, Saul Solomon (#11689) Director of Law, Keli J. Oliver (#21023), Derrick C. Smith (#13961), James E. Robinson (#24680), Assistant Metropolitan Attorneys, P.O. Box 196300, 108 Metropolitan Courthouse, Nashville, Tennessee 37219-6300, (615) 862-6341. Judge Sharp. Magistrate Judge Griffin. Defendant Metropolitan Nashville Board of Public Education (the “Board”) submits this memorandum of law in support of its motion to dismiss Plaintiffs' Complaint in this case. Plaintiffs have brought suit to challenge the decision of the Board to revoke the charter of charter school Smithson-Craighead Middle School. As a result of the revocation, the school is scheduled to close its doors at the end of the 2012-13 school year on May 24, 2013. The present action is brought by 3 Plaintiffs: Project Reflect, Inc. Smithson Craighead Middle School, (“SCMS)” 2 and the parents of two SCMS students (collectively, “Plaintiffs”). Plaintiffs allege that the Board's revocation of the charter in November 2012 violated their due process and equal protection rights under the Fourteenth Amendment. Plaintiffs have sued not only the Board, but also Director of Schools Dr. Register and Metro Nashville Public Schools (“MNPS”) Office of Innovation Executive Director Alan Coverstone. SCMS was granted a charter and began operating as a charter school within MNPS in August 2009. As of 2012, SCMS's TCAP scores were in the bottom 5% of scores statewide. Doc. No. 1 at ¶ 28. As a result, the State of Tennessee listed SCMS as one of 6 “priority” schools within MNPS. See Exhibit B attached to Motion, 3 also available at http://www.tn.gov/education/ accountability/doc/2012-13_priority_schls.pdf. Pursuant to the Tennessee Public Charter Schools Act, a local school board may revoke a school's charter if the school has received identification as a priority school, as defined by the state's accountability system. Tenn. Code Ann. § 49-13-122(a) (2). The Act also states that a revocation for that reason is not appealable to the Tennessee State Board of Education. Plaintiffs here admit that the MNPS Board voted to revoke SCMS's charter “essentially” because of low test scores. Plaintiffs insist, however, that other factors should have been considered by the Board, such as SCMS's stated mission to accept underachieving students, SCMS's incrementally improving test scores, and SCMS's safe environment. Doc. No. 1 at ¶ 32. None of these factors is delineated in the Act as a basis for renewing a school's charter or as a substitute for a school's ability to achieve acceptable academic standards. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Document received by the TN Court of Appeals. FACTUAL ALLEGATIONS 1 PROJECT REFLECT INC. Smithson Craighead Middle..., 2013 WL 12371284... Plaintiffs' challenge to the procedure used to revoke SCMS's charter stems not from any allegation that it was done in contravention of state law or the mandates of the Act, but from their contention that they did not receive “formal” notice of the November 13, 2012 Board meeting at which revocation of the school's charter was discussed and approved. 4 Doc. No. 1 at ¶ 33. Plaintiffs do not allege that they received no notice of the meeting. Instead, they concede that they did receive advance notice of the Board meeting through the media. Moreover, video footage of the Board meeting can be seen at http://youtube/09perindjDs, and it is evident that there was a large and vocal contingent from SCMS present. With regard to any “required” notice of a proposed revocation, the charter contract between MNPS and SCMS expressly states that, if the Board revokes the charter of SCMS, it will do so according to the procedures set forth in Tenn. Code. Ann. § 49-13-121 and § 49-13-122. See Exhibit A attached to Motion at p. 17, § 6.1. The statutory provisions referenced do not impose any notice requirements, formal or otherwise, for revocation. In addition to challenging the notice that they received, Plaintiffs contend that their due process rights were violated because they were not allowed to “rebut” statements made by Alan Coverstone to the Board during the November 13 meeting. While Plaintiffs were not afforded “rebuttal time” at the end of the meeting, SCMS Director Dr. Carolyn Baldwin-Tucker was allowed to speak at the beginning of the meeting. See http://youtube/09perindjDs, and Board Meeting Minutes attached as Exhibit D to Motion. After hearing Dr. Baldwin-Tucker's statements, listening to the presentation by Mr. Coverstone, and engaging in a lengthy discussion process, the Board voted 8-1 to revoke SCMS's charter. See Exhibit D. Approximately five months later, this lawsuit followed. Plaintiffs' claims fail for a variety of reasons. First, SCMS lacks standing to bring a Fourteenth Amendment claim against the Board, because the relationship between these entities is analogous to that of a political subdivision and its state creator. Second, the Parent Plaintiffs do not have a due process right to send their children to the charter school of their choice, especially when that school is so low-performing that it fits within the category of schools that the State of Tennessee has determined is subject to charter revocation. Third, SCMS does not have a due process right to operate a charter school that does not meet certain educational thresholds. Fourth, Plaintiffs had no protectable legal interest in either: (1) “formal” notice of the November 13 Board meeting; or (2) “rebuttal” speaking time at the meeting. Finally, as for their Equal Protection claim, Plaintiffs provide no well-pleaded factual allegations to support their “class of one” claim. Plaintiffs contend that SCMS was singled out for closure, but they cannot identify one other charter school within MNPS with as abysmal an academic track records as that of SCMS. In sum, they have provided no facts to show that any other charter school within MNPS is “similarly situated” to them in the first place, let alone that another similarly situated charter school was treated differently than was SCMS. APPLICABLE STANDARD When ruling on a motion to dismiss, this Court “construe[s] the complaint liberally in the Plaintiffs' favor and accept[s] as true all factual allegations and permissible inferences therein.” Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994). Regardless of the outlandishness or lack of independent support for a complaint's factual assertions, “Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations.” Neitzke v. Williams, 490 U.S. 319, © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Document received by the TN Court of Appeals. In Count I of the Complaint, the two Plaintiffs (“Parent Plaintiffs”) who are parents of SCMS students allege that they have a due process right to enroll their children in the charter school of their choosing and that revocation of the SCMS's charter infringes upon that right. SCMS alleges that its due process property interest in operating a charter school was violated by revocation of the charter without proper notice and without opportunity for “rebuttal” at the November 13 Board meeting. Plaintiffs also refer to state law in the Complaint, but there is no Count alleging any violation of state law and no facts identified that would underlie a separate state law claim from the federal claims alleged. Under Count II of the Complaint, Plaintiffs allege a “class of one” Equal Protection claim, contending that they were “singled out” for revocation and closure. PROJECT REFLECT INC. Smithson Craighead Middle..., 2013 WL 12371284... 327 (1989); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable.”). The Court, however, is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 256, 286 (1986). Under the standard articulated in Bell Atlantic Corp. v. Twombly, a complaint must allege “enough facts to state a claim to relief that is plausible on its face” to withstand a Fed. R. Civ. P. 12(b)(6) motion to dismiss. 550 U.S. at 570. Furthermore, the Supreme Court reaffirmed and clarified Twombly in Ashcroft v. Iqbal, 556 U.S. 662 (2009). In Iqbal, the Court stated that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. And [w]here a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557). LEGAL ANALYSIS A. SCMS LACKS STANDING TO BRING A FOURTEENTH AMENDMENT CLAIM AGAINST THE BOARD. An entity is a political subdivision of a state if it is a creation of the state, if its power to act rests entirely within the discretion of the state, and if it can be destroyed at the mere whim of the state, “unrestrained by any provision of the Constitution of the United States.” See City of Trenton, 262 U.S. at 187; see also South Macomb Disposal Auth., 790 F.2d at 504 (“Being a subdivision of the state, the ‘State may withhold, grant or withdraw powers and privileges [from a municipality] as it sees fit.’ ” (quoting id. at 187)(alteration in original)). In determining whether a particular entity is a political subdivision, courts look to statutory and case law. South Macomb Disposal Auth., 790 F.2d at 506; Delta Special Sch. Dist. No. 5 v. State Bd. of Educ. for Ark., 745 F.2d 532, 533 (8th Cir. 1984). Multiple courts that have addressed whether a charter school has standing to sue its chartering authority under the Fourteenth Amendment have held such suits to be precluded because the relationship between the school and its chartering authority is analogous to that of a political subdivision and its state creator. In Greater Heights Acad. v. Zelman, 522 F.3d 678 (6th Cir. 2008), the Sixth Circuit analyzed Ohio's statutory and case law, “as well as the substantive control that Ohio exerts on its community schools, 5 ” and determined that it was “apparent that community schools are political subdivisions of the state.” Id. at 680. While Greater Heights involved a state department of education (rather than a local board of education) acting as the chartering authority for Ohio “community schools,” the underlying rationale would apply to the present case. Where a school looks to a governmental entity for its authority to operate, has its progress monitored by that entity pursuant to statute, and must comply with laws generally applicable to the other schools operated by that entity, that school is, in effect, a “political subdivision” of the entity that charters it. See e.g., Greater Heights at 680-81. In addition, in a recent case involving a charter school seeking to sue a local school district, and statutory language similar to that of the Tennessee Public Charter Schools Act, the United States District Court for the Middle District of Pennsylvania held that the charter school lacks standing to do so. The court noted that, under applicable Pennsylvania law: Like a municipal corporation that operates within the confines of powers granted by the General Assembly, a charter school is granted the limited power to operate an independent public school. Even though a charter school “has all powers necessary or desirable for carrying out its charter,” it can only operate “under a charter from the local board of school directors.” Thus, the “legal authorization for the establishment of a charter school” is pursuant to a written charter that must be signed by the local board of school directors. Moreover, a local school board may also revoke or decide not to renew a charter during the © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Document received by the TN Court of Appeals. It is well established that political subdivisions cannot sue the state of which they are part under the United States Constitution. See City of Trenton v. New Jersey, 262 U.S. 182, 186-87 (1923) (With respect to political subdivisions, “the state is supreme and its legislative body ... may do as it will, unrestrained by any provision of the Constitution of the United States.”); South Macomb Disposal Auth. v. Washington Twp., 790 F.2d 500, 505 (6th Cir. 1986) (“The relationship between [political subdivisions] is a matter of state concern; the Fourteenth Amendment protections and limitations do not apply.”). PROJECT REFLECT INC. Smithson Craighead Middle..., 2013 WL 12371284... term or at the expiration of the charter for a number of reasons, including material violations of the written charter, failure to meet performance requirements, violations of the Charter School Law, or violations of other applicable laws. These statutory provisions demonstrate that, despite the independence afforded to a charter school in terms of setting its operating procedures, budget, and curriculum, a charter school operates with the authorization of a local school district for the limited purpose of providing an alternate education option to students within the public education system. This relationship is analogous to that of a municipal corporation-creator where the powers granted to the municipal corporation are defined and limited by the creator. The Charter School therefore, like a municipality or municipal corporation, may not bring this constitutional challenge against its creator in this action. Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 3:CV-10-1171, 2012 WL 5463132 (M.D. Pa. Nov. 8, 2012)(citations omitted)(copy attached). Like the statute at issue in Pocono Mountain, the terms of the Tennessee Public Charter School Act authorize local school boards to act as the chartering authority (or “creator”) for charter schools in Tennessee. Tenn. Code Ann. § 49-13-104(4); see also Tenn. Code Ann. § 49-13-106(a)(1)(“Public charter schools authorized by an LEA 6 may be formed to provide quality educational options for all students residing within the jurisdiction of the chartering authority”)(emphasis added). Charter schools are governed by a written charter agreement signed by the charter school and a local school board. Tenn. Code Ann. § 49-13-110(a). The Act gives local school boards the authority to grant, or deny, charter applications. Tenn. Code Ann. § 49-13-108. A local school board also has the power to revoke a charter for a variety of reasons: (a) A public charter school agreement may be revoked or denied renewal by the final chartering authority if the chartering authority determines that the school did any of the following: (1) Committed a material violation of any of the conditions, standards or procedures set forth in the charter; (3) Failed to meet generally accepted standards of fiscal management; or (4) Performed any of the acts that are conditions for nonapproval of the charter school under § 49-13-108(c). Tenn. Code Ann. § 49-13-122 This statutory language establishes that “a charter school operates with the authorization of a local school district for the limited purpose of providing an alternate education option to students within the public education system,” as was the case in Pocono Mountain. The Board created SCMS when it issued the school a charter in the first place. Without Board approval, SCMS would not exist at all. As such, its role is analogous to that of a municipality created by a state, and it lacks standing to bring a Fourteenth Amendment claim against its creator. All of SCMS's claims against the Board should be dismissed. B. THE PARENT PLAINTIFFS HAVE NO CONSTITUTIONAL RIGHT TO SEND THEIR CHILDREN TO THE CHARTER SCHOOL OF THEIR CHOICE. The Parents Plaintiffs' claims are also subject to dismissal. Education is not a fundamental right. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). However, once a state establishes a public education system, as has the state of Tennessee, a student does attain a property interest in a free public education. See, e.g, Goss v. Lopez, 419 U.S. 565 (1975); Laney v. Farley, 501 F.3d 577, 581 (6th Cir. 2007). But having a property interest in a free public education is not equivalent to having a property interest in attending the individual charter school of your choice, which is what the Parent Plaintiffs seek in this case. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Document received by the TN Court of Appeals. (2) Received identification as a priority school, as defined by the state's accountability system; PROJECT REFLECT INC. Smithson Craighead Middle..., 2013 WL 12371284... In fact, courts have expressly held that a student has no due process right to attend the public school of his or her choosing. See Buchanan v. City of Bolivar, Tennessee, 99 F.3d 1352, 1359 (6th Cir. 1996); Mullen v. Thompson, 31 Fed. Appx. 77 (3d Cir. 2002)(“Plaintiffs have no constitutionally cognizable property or liberty interest in attending the individual school of their choice.”). In addition, parents do not have a liberty or property interest in sending their children to whatever school they desire, without reference to requirements imposed by state or local law. See e.g., Arrendondo v. Brockette, 648 F.2d 425, 428-29 (5th Cir. 1981)(states have a legitimate interest in limiting enrollment in public schools to students who are bona fide residents of the particular state and school district at issue). Moreover, when the result of a school closing is simply that students will be “forced” to attend other schools, no due process right is implicated. Specifically, “a student who is removed from her regular public school, but is given access to an alternative education program, has not been denied her entitlement to public education.” Swindle v. Livingston Parish Sch. Bd., 655 F.3d 386, 394 (5th Cir. 2011); Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 690 (5th Cir. 2011) (“[A] student's transfer to an alternative education program does not deny access to public education, and therefore does not violate the Fourteenth Amendment interest.”); see also Buchanan, 99 F.3d 1352, 1359 (6th Cir. 1996) (explaining that the student “may not have procedural due process rights to notice and an opportunity to be heard when the sanction imposed is attendance at an alternative school absent some showing that the education received at the alternative school is significantly different from or inferior to that received at his regular public school”). Here, Plaintiffs have provided no well-pleaded allegations that the education that students will receive at the new schools to which they are assigned for the 2013-14 school year is significantly different from, or inferior to, that received at SCMS. In fact, the Parent Plaintiffs have not even indicated which schools their children are set to attend during the 2013-14 school year. Furthermore, it is difficult to imagine schools that are “inferior” to SCMS in terms of providing an educational environment that allows students to achieve test scores that meet state accountability requirements. C. SCMS HAS NO CONSTITUTIONAL RIGHT TO OPERATE A CHARTER SCHOOL. Likewise, even if SCMS had standing to pursue this lawsuit, SCMS has no due process right in operating a charter school in any way it sees fit. Due process property interests “are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 561 (1985). The Tennessee Public Charter School Act does not provide a charter school “sponsor” organization with any liberty or property interest in running a charter school. This is particularly true of a school with such a poor academic record that it has been placed in the bottom 5% of Tennessee schools - a category of schools that the Tennessee legislature has expressly stated can have their charters revoked without even any State Board of Education appellate procedure. See Tenn. Code Ann. § 49-13-122(a)(2). The State of Tennessee, through the Act, Tenn. Code § 49-13-101, et seq., places numerous requirements upon charter schools. The Charter Agreement between SCMS and the Board incorporates the requirements of the Act. See Exhibit A to Motion. The Act explicitly gives the Board the authority to revoke charters of “priority” schools. It is undisputed that SCMS was a “priority” school. SCMS has no due process right in keeping its charter in hopes that it may someday achieve sufficient academic progress to remove itself from the “priority” list. State law does not create any property or liberty interests for sponsors operating a charter school. Any “interest” that SCMS has, to the extent that it has one at all, is at most a contractual one embodied in the Charter Agreement between itself and the Board. Thus, SCMS's due process claim fails, 7 because it has no cognizable due process interest in operating a charter school. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Document received by the TN Court of Appeals. Plaintiffs claim that they have a legally protected “due process” interest in sending their children to SMCS, but no such interest exists. Accordingly, their due process claims should be dismissed for failure to state a claim. PROJECT REFLECT INC. Smithson Craighead Middle..., 2013 WL 12371284... D. EVEN IF PLAINTIFFS' DUE PROCESS RIGHTS WERE IMPLICATED, THEY HAD NO RIGHT TO “FORMAL” NOTICE OF THE BOARD MEETING AT WHICH SCMS'S CHARTER WAS REVOKED. Even if a due process right were implicated in this case, Plaintiffs had no right to “formal notice” of the Board meeting. Procedural due process protects a person from government action which deprives him of an important liberty without adequate notice and opportunity to be heard. Perry v. Sindermann, 408 U.S. 593, 599 (1972). Assuming Plaintiffs had an important liberty (or property) interest in attending and/or operating the charter school of their choice (which they do not), they received all the “notice” that they were due regarding the November 13, 2012 Board meeting. As noted above, due process rights stem from independent sources such as state law or, in some instances, contractual requirements. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 561 (1985). Here, the Act contains no requirement that a local school board must provide advance notice of its intent to revoke a school's charter. Likewise, the Charter Agreement does not provide for any advance or “formal” notice before the Board can revoke a Charter. See Exhibit A to Motion. In addition, Plaintiffs do not dispute that they had at least some notice of the Board meeting, as their representative Dr. BaldwinTucker was indeed permitted to speak at the beginning of the meeting. See Exhibit D to Motion. Even in their Complaint, Plaintiffs concede that they had notice of the meeting through the media. And the “youtube” video of the Board meeting illustrates that there was a large pro-SCMS contingent in the crowd. See http://youtube/09perindjDs. Further, MNPS officials did indeed send detailed written communications to SCMS prior to the meeting. See Exhibit C to Motion. E. EVEN IF PLAINTIFFS' DUE PROCESS RIGHTS WERE IMPLICATED, THEY HAD NO RIGHT TO SPEAK AT LENGTH OR MAKE “REBUTTAL STATEMENT” AT THE BOARD MEETING. Further, assuming that a cognizable property or liberty interest is at issue at all in this case, there is certainly no due process right to speak at length during a board meeting or to present “rebuttal” statements. A governmental body such as the Board has the right to place limitations on public comment during a meeting. As the Tennessee Court of Appeals has held, where a governmental body allows the public to speak at its meetings, it may impose reasonable regulations in order to avoid disruption or delay in the performance of its duties. Walker v. Metro. Bd. Of Parks And Recreation, 2009 WL 5178435 (Tenn. Ct. App. Dec. 30, 2009)(copy attached); Lewis v. Cleveland Municipal Airport Authority, 2008 WL 4254359 at *14-15 (Tenn. Ct. App. September 11, 2008)(copy attached)(holding that a county had the right to set a reasonable limitation on persons who address it or, otherwise, “the meetings would be chaotic.”). In this case, the Board allowed Dr. Baldwin-Tucker three minutes to speak, just as it did other members of the public who had asked to speak. It was under no duty to then allow Dr. Baldwin-Tucker, or other SCMS advocates, to make “rebuttal” presentations later in the meeting, after the recommendation to revoke SCMS's Charter was formally made. Because Plaintiffs have no due process right to speak at length at a Board meeting or to be permitted to make “rebuttal” statements at a Board meeting, they cannot sustain any due process violation under this theory. F. PLAINTIFFS' EQUAL PROTECTION CLAIM FAILS BECAUSE THEY IDENTIFY NO COMPARATORS. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Document received by the TN Court of Appeals. Plaintiffs had notice of the Board meeting and the potential closing of SMCS before it occurred. Dr. Baldwin-Tucker spoke at the Board meeting. After a lengthy debate, the Board voted 8-1 to revoke the school's charter. Neither the Act nor the Charter Agreement sets forth any “formal” notice requirements before a local school board can revoke the charter of a “priority” school. Given all of these facts, even if there was a property or liberty interest at issue, Plaintiffs were given all of the process they were due with regard to the November 13 Board meeting. PROJECT REFLECT INC. Smithson Craighead Middle..., 2013 WL 12371284... Plaintiffs' “class of one” Equal Protection claim contains no well-pleaded factual allegations. Instead, Plaintiffs make passing reference to “Equal Protection” rights without providing any factual support as to how these rights allegedly were violated. Therefore, this Court should dismiss Count II of the Complaint. To state a class-of-one Equal Protection claim, a plaintiff must show that he or she was treated differently than those “similarly situated in all material respects.” Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012). The plaintiff must also show that “the adverse treatment [he or she] experienced was so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government's actions were irrational.” Id. (quotations omitted). The Sixth Circuit has observed that class-of-one claims are received by the courts with skepticism. Loesel v. City of Frankenmuth, 692 F.3d at 461. This is because, unless “carefully circumscribed,” such a claim could provide a federal cause of action for almost every State executive and administrative decision, and would inappropriately thrust federal courts into the unwanted and offensive role of second-guessing the reasonableness of “broad areas of state and local decisionmaking.” Id. at 462 (quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1210-11 (10th Cir. 2004)). Consequently, the Sixth Circuit has emphasized that a plaintiff “must overcome a ‘heavy burden’ to prevail based on the class-of-one theory.” Id. Here, Plaintiffs' Complaint fails to even identify any comparators, let alone to provide well-pleaded factual allegations that another charter school or entity was “similarly situated” to SCMS in all materials aspects. Plaintiffs allege that SCMS was “singled out” for closure, but Plaintiffs identify no other MNPS charter school with a similarly poor performance history to that of SCMS that was allowed to remain open. And the Parent Plaintiffs have certainly identified no other parents to whom they seek to compare themselves. Plaintiffs cannot survive a motion to dismiss their Equal Protection claim when they have pointed to no one that was similarly situated to them but received different treatment. CONCLUSION For the foregoing reasons, this Court should dismiss all claims against the Board. THE DEPARTMENT OF LAW OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Saul Solomon (#11689) Director of Law /s/ Keli J. Oliver Keli J. Oliver (#21023) Derrick C. Smith (#13961) James E. Robinson (#24680) Assistant Metropolitan Attorneys P.O. Box 196300 108 Metropolitan Courthouse Nashville, Tennessee 37219-6300 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Document received by the TN Court of Appeals. Respectfully submitted, PROJECT REFLECT INC. Smithson Craighead Middle..., 2013 WL 12371284... (615) 862-6341 Footnotes All factual allegations are drawn from Plaintiffs' Complaint and the public record exhibits attached hereto. 1 Project Reflect, Inc. is the non-profit sponsor of SCMS as defined in the Tennessee Charter Schools Act (the “Act”), Tenn. Code Ann. 2 4 5 6 7 An “LEA” is defined as “any county, city, or special school district, unified school district, school district of any metropolitan form of government or any other school system established by law.” Tenn. Code Ann. § 49-3-302(11). Generally speaking, a plaintiff may not pursue a federal due process claim “without first pleading and proving the inadequacy of state or administrative processes and remedies to redress her due process violations.” Jefferson v. Jefferson County Pub. Sch. Sys., 360 F.3d 583, 587-88 (6th Cir. 2004); see also Braley v. City of Pontiac, 906 F.2d 220, 225 (6th Cir. 1990). Here, Plaintiffs make the bare assertion that they have no adequate state law remedy, see Doc. No. 1 at ¶ 52. But they provide no well-pleaded factual allegations to explain why a writ of certiorari action brought pursuant to Tenn. Code Ann. § 27-8-101 et seq. in state court - the typical mechanism for challenging the decision of a governmental board or commission -- would be inadequate. Accordingly, their “due process” claim should be dismissed on this additional ground as well. End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 Document received by the TN Court of Appeals. 3 § 49-13-101, et seq. See Tenn. Code Ann. § 49-13-104(10); see also, Charter Agreement attached to Motion as Exhibit A. The Charter Agreement is a public record. A court may consider matters of public record in deciding a motion to dismiss without converting the motion to one for summary judgment. Lynch v. Leis, 382 F.3d 642, 648 n. 5 (6th Cir. 2004); Kostrzewa v. City of Troy, 247 F.3d 633, 644 (6th Cir. 2001). Further, if extrinsic materials merely “fill in the contours and details” of a complaint, they add nothing new and may be considered at the motion to dismiss stage. Yeary v. Goodwill Indus. Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997). The Tennessee Department of Education's list of “priority” schools is also a public record. In addition, the priority list fills in the contours of the Complaint, as Plaintiffs themselves refer to SCMS as being in the lowest 5% of Tennessee schools in terms of academic achievement, which is the definition of a “priority” school. See Doc. No. 1 at ¶ 28. It is unclear as to what Plaintiffs deem to constitute “formal notice,” but MNPS did send both a letter and an email giving notice of the proposed action prior to the November 13, 2012 Board meeting. See Collective Exhibit C attached to Motion. Again, this correspondence can be considered at the motion to dismiss stage because the letter and email are public records. Ohio's “community schools” are the equivalent of what Tennessee calls “charter schools.” Rollins v. Wilson County Government, 967 F.Supp. 990 (1997) 119 Ed. Law Rep. 479, 4 Wage & Hour Cas.2d (BNA) 833 Linda ROLLINS, Plaintiff, v. WILSON COUNTY GOVERNMENT and Ron Gilbert in his official capacity as head of the Wilson County Finance Department, Defendants. No. 3:95–0613. June 9, 1997. Synopsis Former county employee brought action against county for discharging her in violation of Family Medical Leave Act (FMLA). On county's motion to dismiss, the District Court, Nixon, Chief Judge, held that county and board of education were separate and distinct entities, so that time employee worked for both could not be aggregated for purposes of establishing that she was covered by FMLA. Dismissed. Attorneys and Law Firms *991 George F. Lannom, Lebanon, TN, for Plaintiff. David Randall Mantooth, Nashville, TN, Elizabeth M. Wilson, Nashville, TN, Michael Ray Jennings, Lebanon, TN, Lee A. Murray, Nashville, TN, James E. Moffitt, Franklin, TN, for Defendant. MEMORANDUM NIXON, Chief Judge. Pending before the Court is Defendant's Motion for Summary Judgment (Doc. No. 21). Upon review of the record, and for the reasons stated below, the Court grants the Motion and dismisses the above-captioned matter. I. BACKGROUND According to the complaint, Plaintiff Linda Rollins is a resident of Wilson County, Tennessee. Rollins was an While in the Department's employ, Plaintiff suffered a serious health condition as defined in 29 U.S.C. § 2611 and requested leave in compliance with the Act. Plaintiff contends that she requested leave from her employer in a manner sufficient to make Defendants aware that the employee needed leave pursuant to the FMLA. Plaintiff maintains that during her absence she continued to supply information concerning her ongoing serious health condition to her immediate supervisor, Ron Gilbert. While hospitalized for the condition for which leave was requested, Plaintiff received notification from her supervisor that she had been terminated. Rollins alleges that this termination violated 29 U.S.C. § 2601 et seq. As a result, Plaintiff claims that she suffered lost wages, employee benefits, promotion opportunities, health benefits, increased insurance costs, and costs related to this litigation. Defendants first, in their original Motion for Summary Judgment, argue that Plaintiff's claim should be dismissed as there is no genuine issue as to any material fact, since, in their view, Plaintiff was not an eligible employee under 29 U.S.C. § 2611. According to Defendants, Plaintiff is ineligible because she attempts to aggregate two periods of employment for two separate entities: the Wilson County Government and the Wilson County School System. Before working with the Wilson County Government, Plaintiff worked as a payroll clerk for the Wilson County School System from October 19, 1992 through June 30, 1993. According to Defendant, the relevant facts are as follows: In July of 1993, Plaintiff began working for the Wilson County Finance Department as a payroll clerk. In October of 1993, Plaintiff was directed by her doctor to leave work and begin rest at home. Plaintiff delivered a statement to the Wilson County Finance Department Office indicating the need to begin bed rest, and one week later returned to the office and delivered another statement indicating that she needed © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Document received by the TN Court of Appeals. 967 F.Supp. 990 United States District Court, M.D. Tennessee, Nashville Division. employee of the Wilson County Government's County Finance Department, where she worked under the direction of Ron Gilbert. Plaintiff contends that in that capacity she was eligible for coverage under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2611. Wilson County Government, according to Plaintiff, is *992 an employer with at least 50 employees and is subject to the laws and regulations set by the FMLA in 1993. Gilbert, who is sued in his official capacity, is head of the Wilson County Finance Department where he was employed at the time of Plaintiff's termination. Rollins v. Wilson County Government, 967 F.Supp. 990 (1997) 119 Ed. Law Rep. 479, 4 Wage & Hour Cas.2d (BNA) 833 Defendant contends that under the FMLA, an eligible employee “shall be entitled to a total of 12 workweeks of leave during any 12 month period ... because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1). The Act defines “eligible employee” to mean an employee who has been employed: (i) for at least 12 months by the employer with respect to whom leave is requested under Section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12–month period. 29 U.S.C. § 2611(2)(A). Defendants argue that Plaintiff incorrectly states that she worked in excess of twelve months of employment, due to her combined time of service with the Finance Department of Wilson County and the School System. According to Defendants, under Tennessee law, the county government and the county school system are two distinct entities, as shown by their creation, function, and administration. In support of this argument, Defendants contend that (1) the Wilson County Government and the Wilson County School System were created by two different acts of the State of Tennessee and are distinct governmental entities; that (2) Wilson County and the Wilson County School System perform different governmental functions; and that (3) Wilson County and the Wilson County School System are separately administered. They cite caselaw in support of the former two propositions, and in support of the latter they offer affidavit testimony describing the accounting, payroll, management, policy, procedures, *993 property ownership, and decision making of the two purportedly separate entities. In response, Plaintiff argues that 29 U.S.C. § 2654, titled “Regulations” states, “The Secretary of Labor shall prescribe such regulations as are necessary to carry out subchapter I of this chapter and this subchapter not later than 120 days after February 5, 1993.” The Rules of Decision Act provides that the laws of the several states shall be applied except where the Federal constitution or federal treaties or statutes otherwise require or provide the rules of decision in civil actions in federal courts. 28 U.S.C. § 1652. Plaintiff continues that according to the FMLA the regulation and enforcement of the FMLA is to be accomplished by the promulgation of rules proscribed by the Secretary of Labor. 29 U.S.C. § 2654. The statute, according to Plaintiff, provides that the rules of the Secretary of Labor are to be the rules of decision in an action based upon the Act. See 29 C.F.R. § 825.100 et. seq. The Code of Federal Regulations have the force of law, and all persons affected thereby are charged with legal notice of their provisions. See Moody v. United States, 774 F.2d 150, 156 (6th Cir.1985), cert denied 479 U.S. 814, 107 S.Ct. 65, 93 L.Ed.2d 24 (1986); Adamsville Lumber Co. Inc. v. Rainey, 348 F.Supp. 373, 376 (W.D.Tenn.1972). According to Plaintiff, to determine if the Wilson County School System and Wilson County are different governmental entities, one must refer to 29 C.F.R. § 825.108(c)(1) which states that: A state or a political subdivision of a State constitutes a single public agency and, therefore, a single employer for purposes of determining employee eligibility. For example, a State is a single employer; a county is a single employer; a city or town is a single employer. Where there is any question about whether a public entity is a public agency, as distinguished from a part of another public agency, the U.S. Bureau of the Census, “Census of Governments” will be determinative. This provision, argues Plaintiff, provides the final authority for determining if these governmental entities are the same entity. The Census of Governments on page A–228 Appendix A sets forth the information concerning the State of Tennessee. Under the heading “Dependent Public School System” the Census states: © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Document received by the TN Court of Appeals. to remain on sick leave. Subsequently, Plaintiff was admitted to Carthage General Hospital for treatment of high blood pressure. Plaintiff's mother called the Finance Department to inform them of Plaintiff's hospitalization. While in hospital, Plaintiff received a letter, dated November 2, 1993, from Wilson County Finance Department, terminating her employment effective 5 p.m. on November 2, 1993. Rollins v. Wilson County Government, 967 F.Supp. 990 (1997) 119 Ed. Law Rep. 479, 4 Wage & Hour Cas.2d (BNA) 833 On the basis of the above, Plaintiff maintains that it is unquestionable that for the purposes of the FMLA, Wilson County Government, and the Wilson County School System are one in the same. Plaintiff argues that state law is not determinative on this issue, since this is an action based on a Federal Statute. The statute and the proscribed regulations, according to Plaintiff, provide the necessary remedy. Since the Wilson County Government and the Wilson County School System are one in the same, the period worked at each are counted as one. Plaintiff also contends that Defendants are barred from contesting whether she is an eligible employee, based on 29 C.F.R. § 825.110(d) which states in the last full sentence: Where the employee does not give notice of the need for leave more than two business days prior to commencing leave, the employee will be deemed to be eligible if the employer fails to advise the employee that the employee is not eligible within two business days of receiving the employee's notice. Rollins argues that once she commenced leave and gave notice, her employer never advised her that she was not eligible under the act. Defendants note that 29 C.F.R. § 825.108(c)(1), as cited by Plaintiff, is only applicable “Where there is any question about whether a public entity is a public agency, as distinguished from a part of another public agency.” Since, according to Defendants, there is no question under Tennessee law about the separate nature of the school systems from the local county government, there is no need to refer to the U.S. Bureau of Census, “Census of Governments.” Since Plaintiff worked for two government agencies which are legally distinct under Tennessee law, the application of or reference to the U.S. Bureau of Census, “Census of Governments,” would impose an unnecessary and artificial interpretation upon Tennessee law. Additionally, Defendants contend that Plaintiff was incorrect in stating in her deposition that she began working for the Wilson County School System in June of 1992. Defendants state that they can demonstrate that Plaintiff's starting date for employment with the school system was October 19, 1992. Even assuming, arguendo, that Plaintiff's tenure with the Wilson County School System and the Wilson County Government is determined by this Court to be with the same employer for purposes of the FMLA, the Plaintiff, according to Defendants, would still not have been employed for a period of 12 months at the time of taking her leave on October 6, 1993. The Plaintiff would be thirteen days short of the employment requirement of the Act and would therefore not be entitled to leave under the FMLA. Finally, Defendants contest whether the FMLA provision based on C.F.R. § 825.110(d) is applicable in this context. The provision, as noted above, states that: © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Document received by the TN Court of Appeals. Each of the 93 county school systems is administered by a county board of education. Under general law in effect as of January 1992, the county board of education is appointed, but special legislation permits the election of board members in nearly half the counties. Since the fiscal requirements of the county school systems are reviewed and provided for by the county legislative body, county school systems are not counted as separate governments. Defendants respond to Plaintiff's citation of 29 C.F.R. § 825.108(c)(1) by arguing that the law in Tennessee is clear that county *994 governments in this state are separate governmental entities from the school system, which are considered arms or agencies of the state of Tennessee itself. As further proof, Defendants submit the affidavit of Wilson County School Superintendent James Francis, who states that the School Superintendent and School Board are elected officials serving four year terms, serving the Wilson County School System, not the Wilson County Government. They argue that except for the funding of salaries and other related expenditures, there is no overlap between the county and schools. Rollins v. Wilson County Government, 967 F.Supp. 990 (1997) 119 Ed. Law Rep. 479, 4 Wage & Hour Cas.2d (BNA) 833 However, Defendants argue that reliance upon this provision is based upon Plaintiff's assumption that the Defendant characterized and granted Plaintiff leave under the FMLA. However, Defendants, as illustrated by an Affidavit of Ron Gilbert, maintain that the medical leave taken by Plaintiff was only accrued general medical leave by virtue of her employment with the Wilson County Government. It was never specifically designated FMLA leave by the Wilson County Government. Thus, according to Defendants, the promissory estoppel provision at C.F.R. § 825.110(d) is inapplicable and should not be a basis for plaintiff's retroactive creation of rights to which she is not entitled. II. DISCUSSION: A. Standard of Review: Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In ascertaining whether summary judgment is proper, the Court views the facts and any reasonable inferences drawn from those facts in a light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). However, on its own, the existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247–49, 106 S.Ct. 2505, 2509–10, 91 L.Ed.2d 202 (1986) (internal citations omitted). In order to survive a motion *995 for summary judgment, the Plaintiff must produce more than a scintilla of evidence. The Supreme Court, in Anderson v. Liberty Lobby stated that “[t]the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be In construing the evidence in its most favorable light in favor of Plaintiff and against Defendant BP, as required under Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962), the Court finds that there are no genuine issues of material fact with regards to the availability of damages to Plaintiff under the Family and Medical Leave Act. B. The Family Medical Leave Act: The Family Medical Leave Act (FMLA) provides that, under certain circumstances, an employer must allow an eligible employee to take up to twelve work weeks of leave during any twelve-month period because of a serious health condition that prevents the employee from performing the functions of her position. 29 U.S.C. § 2612(a)(1)(D). A covered employer cannot “interfere with, restrain, or deny the exercise of or attempt to exercise any right provided” by the FMLA. 29 U.S.C. § 2615(a)(1). An eligible employee is one who has worked for a covered employer for at least twelve months, has worked at least 1,250 hours during the previous twelve months, and has been employed at a worksite where there are at least fifty or more employees within a seventy-five mile radius. 29 U.S.C. § 2611(2)(A); 29 U.S.C. § 2611(2)(B)(ii). An employee must satisfy each of these criteria independently to be eligible for FMLA leave. 29 C.F.R. § 825.110. Thus, an employee who has been employed for less than twelve months is not entitled to the protections of the FMLA and may not maintain an action under the Act. Id. In the case at bar, there are two grounds upon which Defendants contest Plaintiffs entitlement to coverage under the Act. 1. Was Plaintiff employed for the twelve months required under the Act? Defendants argue that even if Plaintiff's employment with both the Wilson County School System and the Wilson County Government are aggregated, Plaintiff still falls short of the twelve months of employment required by the FMLA. See 29 C.F.R. § 825.110(a)(1). The FMLA states the following regarding the calculation of the twelve month period for purposes of an employee's coverage under the Act: © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Document received by the TN Court of Appeals. Where the employee does not give notice of the need for leave more than two business days prior to commencing leave, the employee will be deemed to be eligible if the employer fails to advise the employee that the employee is not eligible within two business days of receiving the employee's notice. evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 248, 252, 106 S.Ct. at 2510, 2512; see also Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989), reh'g denied 1990. Rollins v. Wilson County Government, 967 F.Supp. 990 (1997) 119 Ed. Law Rep. 479, 4 Wage & Hour Cas.2d (BNA) 833 Further, on the issue of an employee's notice to an employer regarding leave under the FMLA, 29 C.F.R. § 825.208(a) (2) states that “[A]n employee giving notice of the need for unpaid FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet [her] obligation to provide notice, though [she] would need to state a qualifying reason for the needed leave.” See also, e.g. Manuel v. Westlake Polymers Corp., 66 F.3d 758, 762 (5th Cir.1995); Viereck v. City of Gloucester City et al., 961 F.Supp. 703, 707 (D.N.J.1997). In the case at bar, if Plaintiff's employment with the Wilson County School System and the Wilson County Government are aggregated, Plaintiff began work with the Wilson County School System on October 19 of 1992, and would have become eligible for coverage under the Act one year later on October 19 of 1993. On October 6th of 1993, Plaintiff made her first request for leave. As indicated by the attachments to Plaintiff's Supplemental Response to Defendant's Amended Motion for Summary Judgment, Plaintiff's physician submitted four requests for one week's leave, dated October 6, 1993, October 14, 1993, October 20, 1993 and October *996 27, 1993. Plaintiff was terminated by letter on November 2, 1993. According to an Affidavit submitted by Plaintiff's former supervisor, Ron Gilbert, the four weeks leave taken by Plaintiff were “customary medical leave which [Plaintiff] simply had accrued as an employee of the Wilson County Finance Department.” Thus, under the terms of the FMLA, since the Wilson County Government treated Plaintiff's four weeks of leave as “customary medical leave” and since Plaintiff continued to remain on the payroll and received employment benefits 2. Can Plaintiff's employment for the Wilson County Board of Education and the Wilson County Government be deemed employment for the same governmental entity? However, despite our finding above, Plaintiff's claim must nonetheless fail, since this Court finds that, in Tennessee, a county board of education is a separate and distinct governmental entity from that county's county government. This assertion is borne out by an examination of the creation of the two entities by differing acts of the State of Tennessee, by the differing governmental functions performed by the two entities, and by the separate administration of the two entities. Additionally, state caselaw supports this conclusion. As noted by Defendants, public school systems within the state of Tennessee were established by the Constitution of the State of Tennessee. See Art. 11, § 12, Tenn. Const. Although counties were also established as arms of state government, counties were statutorily created by the state legislature, rather than by the state constitution. State v. Stine, 200 Tenn. 561, 292 S.W.2d 771, 772 (1956); Bayless v. Knox County, 199 Tenn. 268, 286 S.W.2d 579, 587 (1955). Additionally, Tennessee Courts have noted that counties and school systems perform separate functions. Public education is, at core, a state rather than a county or municipal function, and the general education statutes set forth a uniform statewide system of public education. See City of Harriman v. Roane County, 553 S.W.2d 904, 908 (Tenn.1977). The case of State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 222 (Tenn.1988) indicates that even though there are budgetary laws that involve county government officials, “education © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Document received by the TN Court of Appeals. (b) The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g. workers' compensation, group health plan benefits, etc.), the week counts as a week of employment.... throughout the period, the four weeks of Plaintiff's leave may be counted towards her time of employment with the Defendant for purposes of the FMLA. Thus, accepting for the moment that Plaintiff's positions with the School System and County Government may be aggregated, at the time of her termination, Plaintiff would have been eligible for leave under the FMLA since she would have met the criteria outlined under the Act with regards to both her 1,250 hours of service and her twelve months as an employee. Since the notice requirements of the FMLA require only that Plaintiff notify her employer of a qualifying reason for requesting leave, at the time of her termination, having utilized her accrued customary medical leave, Plaintiff would have been eligible for additional unpaid leave under the FMLA, provided her time with the School System and the County Government could be aggregated. Rollins v. Wilson County Government, 967 F.Supp. 990 (1997) 119 Ed. Law Rep. 479, 4 Wage & Hour Cas.2d (BNA) 833 A county is a corporation run by its local officials. See, e.g. State v. Read, 152 Tenn. 442, 446–47, 278 S.W. 71 (Tenn.1925). The schools of a county, on the other hand, are operated and maintained through the agency of the county board of education and a superintendent. Reed v. Rhea County, 189 Tenn. 247, 225 S.W.2d 49, 50 (1949). The *997 school board and superintendent are not employees of the county government, but rather perform separate and distinct functions. Affidavit of James L. Francis. See also, State ex rel, Boles v. Groce, 152 Tenn. 566, 280 S.W. 27, 28 (1926) (discussing the separation of powers between a county school board and county government officials); Morgan County Bd. of Commissioners, et al. v. Morgan County Bd. of Ed., 1994 WL 111457, *3–*4 (Tenn.App.1994) (describing county school board and county commission as two separate entities with separate powers). In support of the contention that the School System of Wilson County and the County's government are separately administered, Defendant offers affidavit evidence that indicates that the two entities have separate accounting books and methods, separate payrolls, separate management with related policies and procedures, separate insurance policies, separate workers' compensation policies, own separate real property, and are controlled by a separate group of government officials. (See Affidavit of Mike Jennings, Attorney for Wilson County, Tennessee). As noted above, the only connection between the Wilson County School System and Wilson County Government is the allocation of county funds for the operation of the schools. Looking at the evidence related to Plaintiff's employment situation, the Court notes that upon moving from the School System to the Wilson County Finance Department in July of 1993, Plaintiff was required to fill out a new insurance enrollment form, a new W–4 Federal Withholding Form, and a new employment eligibility verification form. Plaintiff's working hours and pay changed as a result of the fact that the School System employees worked a 35 hour work week, while the Wilson County Finance Department worked a 40 hour work week. Additionally, while Plaintiff worked for the School System, she received a check issued by the Wilson County Board of Education, whereas her paycheck during her period with the Wilson County Finance Department was generated by the Wilson County Government. Plaintiff responds that according to the FMLA, the regulation and enforcement of the Act is to be accomplished by looking to the rules promulgated by the Secretary of Labor. Citing 29 U.S.C.A. § 2654. She maintains that the statute provides that the rules of the Secretary of Labor are to be the rules of decision in an action based on the FMLA. See Rules at 29 C.F.R. § 825.100 et seq. Thus, according to Plaintiff, to determine if the Wilson County School System and Wilson County are different governmental entities, one must refer to 29 C.F.R. § 825.108(c)(1), which states: A state or a political subdivision of a State constitutes a single public agency and, therefore, a single employer for purposes of determining employee eligibility. For example, a State is a single employer; a county is a single employer; a city or town is a single employer. Where there is any question about whether a public entity is a public agency, as distinguished from a part of another public agency, the U.S. Bureau of the Census, “Census of Governments” will be determinative. (Plaintiff's emphasis added). The Court does not quarrel with Plaintiff's analysis as outlined above. However, the Court does part ways with Plaintiff in evaluating whether there is a question about whether the Wilson County School System is a public agency, as distinguished from a part of the Wilson County Government. This Court finds that the differences in creation, function, and administration between the two entities render them unquestionably separate. This distinction, as shown above, is supported by case law on the subject. Since the Court finds © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Document received by the TN Court of Appeals. is fundamentally a State concern.” The County Financial Management System of 1981 also shows a “deference to the State's supervisor authority over education” by allowing the state commissioner of education to remove the education department of the county from the system. (T.C.A. § 5–21– 124). The fact that there are financial connections between a local school system and local government does not detract from the essentially separate functions of these two entities. See Keese v. Hamilton County, 184 Tenn. 171, 197 S.W.2d 800, 802 (1946) (noting that “the very life of a school depends on the will of the county government,” which may “refuse to make the necessary appropriations for the maintenance of a school and may at its pleasure abolish it.”) Rollins v. Wilson County Government, 967 F.Supp. 990 (1997) 119 Ed. Law Rep. 479, 4 Wage & Hour Cas.2d (BNA) 833 Thus, the Court finds that Plaintiff's periods of employment working for the Wilson County School System and the Wilson County Government cannot be aggregated for purposes of determining her eligibility for coverage under the FMLA. Since Plaintiff only worked for Defendant Wilson County Government for a period of less than four months prior to her termination, the Court *998 finds that Defendant Wilson County Government is entitled to a Summary Judgment verdict in this action. Finally, the Court will not accept Plaintiff's estoppel argument, which is based on current FMLA regulations at 29 C.F.R. § 825.110(d). The current FMLA include revisions which took place in 1995 and the estoppel provision cited by End of Document Plaintiff was not a part of the regulation as of 1993, the time at which Plaintiff's claims accrued. The Court thus declines to apply the more recent version of the statute retroactively, since there is no express direction that Congress intended that such retroactive application should take place. See Robbins v. Bureau of Nat. Affairs, Inc., 896 F.Supp. 18, 21 (D.D.C.1995). III. CONCLUSION For the foregoing reasons, the Court hereby grants Defendant's Motion for Summary Judgment and dismisses the above-captioned matter. An Order consistent with the reasoning set forth above is filed contemporaneously. All Citations 967 F.Supp. 990, 119 Ed. Law Rep. 479, 4 Wage & Hour Cas.2d (BNA) 833 © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Document received by the TN Court of Appeals. that there is no question as to the distinction, it does not find it necessary to look to the Census of Governments to determine this issue. Rollins v. Wilson County Government, 154 F.3d 626 (1998) 74 Empl. Prac. Dec. P 45,512, 129 Ed. Law Rep. 582... KeyCite Yellow Flag - Negative Treatment Distinguished by Casagrande v. OhioHealth, S.D.Ohio, February 18, 2015 Linda ROLLINS, Plaintiff–Appellant, v. WILSON COUNTY GOVERNMENT; Ron Gilbert, in his official capacity as Head of the Wilson County Finance Department, Defendants–Appellees. No. 97–5837. Argued Aug. 4, 1998. Decided Sept. 9, 1998. Synopsis Former county employee brought action against county government for allegedly discharging her in violation of Family and Medical Leave Act (FMLA). The United States District Court for the Middle District of Tennessee, 967 F.Supp. 990, John T. Nixon, J., granted summary judgment in favor of county government. Former employee appealed. The Court of Appeals, Siler, Circuit Judge, held that county school system and county government were separate entities, such that periods former employee worked for each entity could not be aggregated for purposes of establishing her status as “eligible employee” under FMLA. Affirmed. Attorneys and Law Firms *627 Frank Lannom (briefed), B. Keith Williams (argued and briefed), Taylor, Taylor, Lannom & Williams, Lebanon, TN, for Plaintiff–Appellant. George H. Rieger, II, (argued and briefed), David Randall Mantooth (briefed), Leitner, Williams, Dooley & Napolitan, Nashville, TN, for Defendants–Appellees. Before: KRUPANSKY, NORRIS, and SILER, Circuit Judges. SILER, Circuit Judge. This case involves labor regulations interpreting the Family and Medical Leave Act (“FMLA”). Linda Rollins, the plaintiff, worked for the Wilson County School System for over eight months and Wilson County Government's Finance Department for roughly four months. Rollins then became ill and lost her job. She sued the county government, the defendant, for relief under the FMLA. To succeed, she had to establish that she had worked for the same employer for at least one year. The district court granted summary judgment for the county on the ground that the school system and the county government were separate employers. We AFFIRM. Background In Tennessee, the school systems operate separately from the county governments. See Rollins v. Wilson County Gov't, 967 F.Supp. 990, 996–97 (M.D.Tenn.1997) (tracing differences). The two entities have separate origins, functions, and management. The school systems arose from the Tennessee Constitution, whereas the counties derive from state statutes. The school systems follow uniform education standards, whereas the counties have no such state mandate. While the county governments approve the school systems' funding, different officials administer each entity. A county school board and superintendent manage the school system without input from other county officials. The school systems' officials are elected separately. *628 Rollins's own history illustrates the divide. She worked for both entities as a payroll clerk, but each job entailed different working hours and pay. She had a different supervisor and a different office. The Wilson County School System issued one set of paychecks, whereas the Wilson County Government issued her later paychecks. While she never interviewed for the job change, rolls of red tape commemorated the switch. She had to fill out new insurance forms, tax forms, and employment eligibility forms upon changing jobs. Rollins worked for the school system for slightly over eight months, from October 1992 to June 1993. She began working for the county government's finance department in July 1993. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Document received by the TN Court of Appeals. 154 F.3d 626 United States Court of Appeals, Sixth Circuit. OPINION Rollins v. Wilson County Government, 154 F.3d 626 (1998) 74 Empl. Prac. Dec. P 45,512, 129 Ed. Law Rep. 582... After her discharge, Rollins sought relief under the FMLA, 29 U.S.C. § 2601 et seq. The district court granted summary judgment to the county. Rollins v. Wilson County Gov't, 967 F.Supp. 990 (M.D.Tenn.1997). It held that Rollins was not an “eligible employee” within the meaning of § 2611(2) (A) because she had not worked for twelve months for the same employer. Relying on Tennessee law, the court found that the school system and county government were separate employers. It also found, however, that the school system and the finance department had “employed” Rollins for over twelve months total. Standard of Review We review a grant of summary judgment de novo. Citizens for Legislative Choice v. Miller, 144 F.3d 916, 920 (6th Cir.1998). We view the evidence in the light most favorable to the party opposing summary judgment, and affirm only if the submissions show “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). Discussion The FMLA entitles employees to twelve weeks of leave in certain circumstances. 29 U.S.C. § 2612(a)(1)(D). To become eligible for these benefits, an employee must meet certain criteria: The term “eligible employee” means an employee who has been employed(i) for at least 12 months by the employer with respect to whom leave is requested ...; and (ii) for at least 1,250 hours of service with such employer during the previous 12–month period. Id. at § 2611(2)(A). “Employer” includes state and county governments. Id. at § 2611(4). Rollins satisfies the first criterion for FMLA benefits, at least to the extent that she was employed for at least twelve months if her employment with the school system and the finance department are combined. The FMLA includes periods of unpaid leave in calculating the length of employment. 29 C.F.R. § 825.110(b). Cf. Robbins v. Bureau of National Affairs, Inc., 896 F.Supp. 18, 21 (D.D.C.1995) (excluding unpaid leave in calculating the “hours of service” requirement). During Rollins's four weeks of medical leave, she remained on the payroll and received employment benefits. These weeks extended her total period of employment beyond twelve months, and the county concedes that Rollins worked the requisite number of hours. This case turns on whether the Wilson County School System and Wilson County Government's Finance Department are a single employer. An employee can receive FMLA benefits only after working for an employer for at least one year. 29 U.S.C. § 2611(2)(A). If the school system and the finance department are one employer, Rollins became eligible for FMLA benefits because she can combine her periods of employment. On the other hand, if these entities are separate employers, Rollins never became eligible because each entity employed her for less than a year. *629 Labor regulations create a default rule for determining the status of local governmental entities. 29 C.F.R. § 825.108(c)(1). See also 28 U.S.C. § 1652 (Rules of Decision Act); Moody v. United States, 774 F.2d 150, 156 (6th Cir.1985) (regulations have legal force). The regulations refer the issue to the Census of Governments when the entities' status is unclear: A State or a political subdivision of a State constitutes a single public agency and, therefore, a single employer for purposes of determining employee eligibility. For example, a State is a single employer; a county is a single employer; a city or town is a single employer. Where there is any question about whether a public entity is a public agency, as distinguished from a part of another public agency, the U.S. Bureau of the Census' “Census of Governments” will be determinative, except for new entities formed since the most recent publication of the © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Document received by the TN Court of Appeals. In October 1993, she requested and received four weeks of medical leave. During these weeks, Rollins remained on the payroll and received employment benefits. The finance department discharged her in November. Therefore, Rollins stayed on the finance department's payroll for slightly over four months. Rollins v. Wilson County Government, 154 F.3d 626 (1998) 74 Empl. Prac. Dec. P 45,512, 129 Ed. Law Rep. 582... 29 C.F.R. § 825.108(c)(1) (emphasis added). The applicable Census of Governments, in turn, concludes that county school systems and county governments are the same employer: Each of the 93 county school systems [in Tennessee] is administered by a county board of education.... Since the fiscal requirements of the county school systems are reviewed and provided for by the county legislative body, county school systems are not counted as separate governments. Census of Governments, Appendix A at A–228. Therefore, under the Census, the Wilson County School System and Wilson County Government's Finance Department are the same employer for FMLA purposes. Under § 825.108(c)(1), however, a court should examine state law before referring to the Census. A court should decide the status of the governmental entities based on state law if state law definitively resolves the issue. The regulation invites an initial, independent inquiry. It instructs courts to evaluate the entities' status as separate employers, determine if there is any question, and then look to the Census only if necessary. Moreover, the word “question” in the phrase “[w]here there is any question” necessarily refers to a broader legal and factual context; a disputable “question” could never exist if the Census controlled whenever the issue arose. Indeed, the word “determinative” in the phrase the “ ‘Census of Governments' will be determinative” portrays the Census as a final arbiter, not an exclusive authority. Rollins, on the other hand, argues that the Census should control irrespective of state law. She focuses on the word “any” in the phrase “[w]here there is any question.” Thus, under Rollins's view, the Census should control the entities' status whenever the issue arises, even if state law undisputably gives a different answer. Certainly, Rollins's construction is both possible and plausible. A court could focus on “any.” Nevertheless, a broader view of the regulation's creation undermines her view. If the regulation's drafters wanted the Census to represent the final and sole authority, they could have written the regulation much more explicitly. For example, the regulation could have read, cleanly, that “the Census of Governments determines whether a public entity is a public agency, as distinguished from a part of another public agency.” Furthermore, principles of statutory construction prescribe deference to state law. Where possible, a court should try to reconcile federal law and state law. Don't Tear It Down, Inc. v. Pennsylvania Ave. Dev. Corp., 642 F.2d 527, 533– 34 (D.C.Cir.1980). While federal law of course trumps state law, a court should read ambiguous clauses as favoring states' authority. United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (“unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance”), cited with approval in United States v. Lopez, 514 U.S. 549, 561–62, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). See also Torcasio v. Murray, 57 F.3d 1340, 1344 (4th Cir.1995) (same). In other contexts, federalism concerns permeate issues involving the structure of state governments. Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (state defines itself as a sovereign through governmental *630 structure); Citizens for Legislative Choice v. Miller, 144 F.3d 916, 924–25 (6th Cir.1998) (courts should defer to states' choices on how to structure government). Therefore, we read this admittedly ambiguous regulation as deferring to state law. Here, Tennessee law definitively resolves the status of the Wilson County School System and Wilson County Government's Finance Department. Under Tennessee law, the school systems are separate from the county governments. The two entities have separate origins, functions, and management. E.g., State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 221–22 (Tenn.1988) (noting that the county government controls funding, but that “the local board of education has exclusive control over many operational aspects of education policy”); City of Harriman v. Roane County, 553 S.W.2d 904, 908 (Tenn.1977) (“public education is essentially a state, rather than a county or municipal, function”). See also Rollins v. Wilson County Gov't, 967 F.Supp. 990, 996–97 (M.D.Tenn.1997) (tracing differences). Cf. Reed v. Rhea County, 189 Tenn. 247, 225 S.W.2d 49, 50 (1949) © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Document received by the TN Court of Appeals. “Census.” For new entities, the criteria used by the Bureau of Census will be used to determine whether an entity is a public agency or a part of another agency, including existence as an organized entity, governmental character, and substantial autonomy of the entity. Rollins v. Wilson County Government, 154 F.3d 626 (1998) 74 Empl. Prac. Dec. P 45,512, 129 Ed. Law Rep. 582... AFFIRMED. End of Document All Citations 154 F.3d 626, 74 Empl. Prac. Dec. P 45,512, 129 Ed. Law Rep. 582, 4 Wage & Hour Cas.2d (BNA) 1639, 1998 Fed.App. 0280P © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Document received by the TN Court of Appeals. (for purposes of immunity, board of education performs governmental functions). 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G*ÿ)@18(8*4ÿ.(ÿ+ 008*4ÿ:(.: (-9<ÿ-/ ÿ6.)(2ÿ+/)00ÿ..: ()- ÿ0.+ 09ÿ78-/ÿ-/ ÿ:0)**8*4ÿ.338++8.*<ÿ7/.+ ( .33 *2)-8.*ÿ+/)00ÿ6 ÿ+.14/-ÿ)*2ÿ)( ,1009ÿ.*+82 ( 2ÿ69ÿ-/ ÿ6.)(2! 1 Document received by the TN Court of Appeals. E-FILED 5/5/2020 10:21 PM CLERK & MASTER DAVIDSON CO. CHANCERY CT. - May 7, 2020 deadline for submittal of applications to the Tennessee Department of Education for ESA awards for the 2020 - 2021 school year; - May 13, 2020 deadline for con?rmation of an ESA award for 2020 2021 school year by Tennessee Department of Education to parents of eligible students; - June 1, 2020 deadline for most private schools to assign seats for students for enrollment n12020~a2021 schoolyem; - June 15, 2020 deadline for ESA Program award recipients to con?rm acceptance of BSA Program award and school seat assignment/acceptance to the Tennessee Department of Education; July 1, 2020 hiring of administrative staff members (approximately 20 staff) by Tennessee Department of Education to support the administration of the ESA Program during 2020 2021 school year; - July 20, 2020 Deadline to set up virtual wallet; - August 15, 2020 funding of BSA Program participants? class wallet accounts for Fall 2020 school semester by the Tennessee Department of Education; and, August 15, 2020 Fall 2020 tuition payment by ESA Program award recipients to the school the recipient is attending for the 2020 2021 school year. The private school seat assignment deadline date, June 1, 2020, is based upon my knowledge of private school calendar requirements for student enrollment as well as my interaction and direct discussions with many private school of?cials from the list of private schools, who have applied and been pre?approved to participate in the ESA Program for the 2020 202 1 school year by the Tennessee Department of Education. This may vary by school. Document received by the TN Court of Appeals. If Tennessee Department of Education is unable to con?rm an BSA Program award to participating on a date in time that precedes the June 15, 2020 deadline (for the participating student to timely receivef accept a seat assignment from a participating private school), the participating student would be in jeopardy of receiving an BSA Program award, but not being able to secure a seat assignment for the 2020 2021 school year in their chosen school. My understanding, from speaking with representatives from pre-approved private school participants in the BSA Program for the 2020 2021 school year, is that to accept a private school seat assignment an eligible BSA Program participating student will sign a contract for tuition payment obligations at the time the BSA Program participating student accepts the seat assignment from the participating school. These obligations include acknowledgement of collections of bad debt should parents default on this tuition. Additionally, any down payment the parent may have made to claim a seat in a private Document received by the TN Court of Appeals. schools, would likely not be refunded. Further the Affiant says naught. I declare under penalty of perjury that the foregoing is true and correct. Executed on Ll m; 91.0010 gig/C. Amity Schuyle/r, Deputy Cohnnissioner Tennessee Department of Education On this the "1 (9 __day of A (. 1 2,020, the above named individual, known to me or made known to me by satisfactory proof, after being duly sworn and placed under oath, personally appeared before me and executed this af?davit. will/wk) 1d .m NOTAPY PUBLIC My Commission Expires: Document received by the TN Court of Appeals.