FROM: Sid Hemsley, Senior Law Consultant
DATE: February 13, 2007
RE: City School Questions
The City has the following questions about its school system.
In answering those question I will refer frequently to various statutes contained in Tennessee Code Annotated , Title 9, Chapter 2, Part 2, particularly in the answer to Question 4. A perusal of those statutes can lead the reader to the conclusion that most of them apply only to county boards of education. However, the history of the Education Improvement Act (EIA) from which Tennessee Code Annotated, Title 9 Chapter 2, Part 2 derives points to the conclusion that it applies to municipal, as well as county, boards of education. Tennessee Attorney General’s Opinion 96-123 and 98-235 come to the same conclusion. It is said in OAG Opinion 96-123 that:
The Education Improvement Act of 1991 (EIA) provided for a uniform system of governance of county, municipal and special school districts. Part 2, of Chapter 2 of title 49 now applies to “Boards of Education” rather than “County Boards of Education” as before... [Emphasis is mine.]
1. What does § 2-110 of the Municipal Code mean with respect to students not being entitled to a free public education?
That provision probably refers to students who reside outside the city limits.
Section 2-110 of the Municipal Code provides that, “ The board of education shall make regulations controlling led the admission of students not entitled by law to free education in the city schools.” I also note that § 2-103 of the Municipal Code defines “common school fund,” which includes, among other things, “(4) Such sums as may be received on account of students attending the schools who are not for any reason entitled to free education therein.”
Both §§ 2-103 and 2-110 are carry-overs from the 1969 Municipal Code. In 1978, the Tennessee Constitution was amended to provide in Article XI, § 12, that:
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 public system of free public schools....
I have read Article XI, § 12 of the Tennessee Constitution, as it stood before 1978, and there is no reference to a system of free public schools. However, Tennessee Code Annotated, § 49-6-3003, provides that:
(a)(1) No tuition or fee shall be charged by any city or special school district except to pupils residing outside the city or district.
(2) Tuition or fees which may be charged to pupils residing outside the city or district but within the county shall not exceed per pupil, per annum, an amount equal to the amount of funds actually raised and used for school purposes for the city or special school district sources during the preceding school year, including tuition and fees, divided by the number of pupils in average daily attendance in the public schools of the city or district during the preceding school year.
That provision has its genesis in Public Acts 1925, Chapter 115, § 19, which provided, “That public schools of the State shall be free to all persons above the age of six years residing within the State; provided, that pupils shall attend school in the county or city where they reside” [with an exception that did not apply to city schools].
I have not laid out the entire history of that statute from 1925 to the present date, because it is not necessary to do so. The above analysis is sufficient to show that long before the change in Article XI, § 12 of the Tennessee Constitution in 1978 that mandated a system of free public schools, Tennessee state law provided (and still provides) for such schools, but made an exception for students who lived outside the limits of the city or the county. For that reason, it is likely that §§ 2-110 and 2-103 of the Municipal Code referred to students who were not entitled to a free public education in the city schools because they did not live in the City. In all events, Tennessee Code Annotated, § 49-6-3003, requires the school system of the City to provide a tuition-free education to pupils who reside in the city, but “may” charge tuition to pupils that reside outside the city but within the county, in the amount prescribed by that statute.
2. Is the City School system required to charge for tuition?
The answer is probably no.
Tennessee Code Annotated, § 49-6-3003 appears to be permissive rather than mandatory. It says that “Tuition or fees which may be charged....” [Emphasis is mine.] The word “may” also appears in the provisions of Tennessee Code Annotated, § 49-6-3003 that apply to tuition charges for pupils outside of county school systems. Generally, under the rules of statutory construction, “may” is generally permissive, “shall” is generally mandatory. But the Tennessee Courts have held that the word “may” is mandatory where the context or history of the statute at issue indicates that result reflects the intent of the General Assembly. However, I do not see any such intent in reflected in either the context or history of the above statutes.
3. Does the city council or the school board make the decision whether to charge tuition to outside students?
The answer is probably the school board.
That answer cannot be reached by reading only Tennessee Code Annotated, § 46-9- 3003. For that reason resort must be had to the rule of statutory construction that requires ambiguities in statutes to be resolved by reading all the statutes on the same subject together. In this case, Tennessee Code Annotated, § 49-1-102(c) provides that:
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 a special school district. Any local public school system shall be administered by:
(1) A local board of education; and
(2) A director of schools. [Emphasis is mine.]
Tennessee Code Annotated, § 49-2-203 also provides that among the duties of local boards of education is the duty to “Manage and control all public schools established or that may be established under its jurisdiction.” [Subdivision (a)(2)] In addition, Tennessee Code Annotated, § 49-6-3104(a) provides that “Local boards of education” may admit pupils for outside their respective local school systems, make transfers of pupils, and make agreements for the admission and transfers of pupils. Subsection (b) of the same statute provides that the state school funds follow the student into the school to which the student is transferring, and Subsection (c) provides that, “Tuition may be charged by a local school system to which a student transfers as provided in § 49-7-3003.” [Emphasis is mine.] Read together, those statutes suggest it is the board of education that makes the transfer and the tuition decisions. It also appears that under § 2-110 of the Municipal Code the same thing is true.
Let me note here that there is a statutory scheme in Tennessee Code Annotated, § 49- 2-401 et seq., prescribed for municipal school systems that levy the school tax prescribed by Tennessee Code Annotated, § 49-2-401, and for municipal school systems that operate schools under their charter and that levy the separate school tax prescribed in Tennessee Code Annotated, § 49-2-404. With respect to the latter, Tennessee Code Annotated, § 49-2-404 says that, “....no transfer of children between city and county schools shall be made except by agreement between the respective boards of education.” However, as I will point out in more detail in the answer to
Question 4, I do not think Tennessee Code Annotated, § 49-2-401 et seq., applies to the City’s school system. But even under that scheme it appears that where a municipality is operating elementary schools under its charter and levies the school tax, the school board makes the agreements with the county with respect to the transfer of children between the city and county school system.
4. Does the city council have the authority to close school buildings?
The answer is probably no.
Under Article VII, § 1 of the City Charter, two of the powers the city has with respect to the school system is “(I) Purchase or otherwise acquire land for schoolhouses, playgrounds and other purposes connected with the school,” and “(j) purchase or erect all necessary buildings.” The fifth paragraph of § 2-106 if the Municipal Code provides that:
The duties and powers of the board of education shall be to institute, operate and have general supervision of a system of public schools for the city, to procure suitable buildings, rooms and furnishings.... [Emphasis is mine.]
The sixth paragraph of § 2-106 provides that: “The board of education shall have no power to purchase real estate.”
However, Tennessee Code Annotated, § 49-2-203(b)(10)(A) provides local boards of education with the power to:
Lease or sell buildings and property or the portion of buildings or property it determines are not being used or are not needed at present by the public school system to any governmental entity, civic group or community organization in such manner as is deemed by the board to be in the best interest of the school system and the community which the system services. Otherwise, public school buildings and property may not be used for private benefit.
I have also noted in the answer to Question 2, above, that Tennessee Code Annotated, § 49-1-102(c) and 49-2-203(a)(2), give the local board of education general authority over the school system. Under Tennessee Code Annotated, § 49-2-203, the local board of education also has the authority to “Make consolidation of two (2) or more schools whenever in its judgement the efficiency of the schools would be improved thereby.” [Subdivision (b)(1).] Likewise, the same statute authorizes local boards of education to “Permit school buildings and school property to be used for public, community or recreational purposes....”, and to “lease buildings and property or the portions of buildings and property it determines are not being used or are not needed at present by the public school systems to the owners and/or operators of private child care centers and kindergartens.....” under the conditions laid out in that statute. [Subdivision (b)(4) and (b)(4)(B).]
The powers assigned to local boards of education under those statutes points to the conclusion that whether school buildings will be closed is to be made by the City Board of Education.
Tennessee Code Annotated, § 49-2-401 suggests that if the city operates the school system under its charter rather than the general education law of the state, the city’s governing body might have the power to make such decisions. That statute provides that municipalities are authorized to submit the question of a school tax to the voters to establish a common school system in the city. Tennessee Code Annotated, § 49-2-404 also provides that cities that both operate school systems under their charters and that levy an additional elementary school taxes for operating expenses other than for grounds, buildings and equipment “are empowered to continue the operation of the school system under their respective charters; provided, that no transfer of children between city and county schools shall be made except by agreement between the respective boards of education.”
Tennessee Code Annotated, § 49-2-402 says that, “The board of such municipality voting for and collecting the tax provided for in § 49-2-401 shall have exclusive control and management over such common schools.” Arguably, in such cases, the city’s governing body would have control over the closing of schools, although even in that statutory scheme, the school board has some control over the use of municipal school buildings and property. [Tennessee Code Annotated, § 49-2-405] But I do not think that the City falls under Tennessee Code Annotated, § 49-2-401 because it does not levy the school tax required to trigger that statute. It was held in State ex rel. Smith v. City of Chattanooga, 144 S.W.2d 1096 (1940), that where the city could not show that it had levied that tax, it’s school system operated under the general education law rather than its charter.