School Law
School Board Academy Agenda 8:00 a.m.
Welcome and Introductions
8:10 a.m.
The School Law Maze
8:20 a.m.
Duties and Powers of School Boards
9:00 a.m.
Charter Schools
9:15 a.m.
School Boards and Local Legislative Bodies
9:30 a.m.
BREAK
9:45 a.m.
Student Discipline and Rights
10:15 a.m.
Students and the Fourth Amendment
10:45 a.m.
Students, Boards and the First Amendment
11:30 a.m.
LUNCH
12:30 p.m.
Open Meetings and Records
1:15 p.m.
Board Liability Issues
2:00 p.m.
BREAK
2:15 p.m.
Employee Rights and Relations
3:00 p.m.
Ethics
3:45 p.m.
Question and Answer
4:00 p.m.
Evaluations and Adjourn
School Law
School Board Academy Table Of Contents Duties and Powers of School Boards.............................................................................1.1 Legal Reference Materials..............................................................................................1.10 Case Studies..................................................................................................................1.20 TN Public Charter Schools Act of 2002.......................................................................1.26 Student Discipline and Rights.........................................................................................2.1 Student Searches..............................................................................................................2.8 Legal Reference Materials..............................................................................................2.18 The First Amendment in Schools...................................................................................2.27 Legal Reference Materials..............................................................................................2.38 Open Meetings and Records............................................................................................3.1 Open Meetings Act Cases................................................................................................3.5 Student Records...............................................................................................................3.7 Legal Reference Materials...............................................................................................3.14 Best Practice Guidelines..................................................................................................3.26 Employee Rights and Regulations................................................................................4.1 Sample Policy..................................................................................................................4.6 Tenure Reform...............................................................................................................4.23 Legal Reference Materials...............................................................................................4.25 Ethical Behavior...................................................................................................................5.1 Legal Reference Materials...............................................................................................5.10
Duties & Powers of School Boards & Superintendents
Duties & Powers of School Boards & Superintendents
T
he educational system in Tennessee was devised by the General Assembly, and the statutes supporting the system are found in Volume 9, Title 49 of the Tennessee Code Annotated. The Legislature determined who would be the major players involved in the administration and operation of education and gave each of the players a series of duties and responsibilities.
State Board of Education At the state level, the principal players include the State Department of Education and the State Board of Education. The State Board of Education is primarily a policy-making body that is responsible for establishing, among others, policies such as those related to curriculum, evaluations of schools and teachers, use of public funds, censure and certification of teachers and graduation requirements. The state board is also responsible for studying differing aspects of the public schools, maintaining a master plan for the development of education, and issuing reports on education, T.C.A. 49-1-302.
Department of Education The Legislature also created the department of education at the state level. The chief executive officer of the department is the commissioner of education who is appointed by the governor. The commissioner of education is required to perform duties as assigned to by law, and he/she is also responsible for the implementation of law or policies established by the General Assembly or the State Board of Education. Among the commissioner’s other duties are: to employ and supervise department of education personnel; to distribute forms for all reports required by law; to compile statistical information; to make required reports to the governor and comptroller; to issue teaching licenses; to approve evaluation plans of local education agencies; to purchase uniform liability insurance for nonteaching personnel employed by local education agencies; and to conduct a program of public information concerning public schools. The commissioner may also grant waivers to schools feel hindered by a state law or regulation.
School Law
1.1
Duties & Powers of School Boards & Superintendents Mandatory Duties of Local Board - T.C.A. 49-2-203(a) Management and Control The Legislature has stated that one of the duties of the board of education is to manage and control all public schools established under its jurisdiction. Generally speaking, this gives the board of education the primary authority over school matters.
Employment The local board has the duty to elect, upon the recommendation of the superintendent, teachers who have attained or are eligible for tenure and fix the salaries of and make such teachers.
Duties of the Board
The board has the duty to approve job descriptions, authorize positions, set salary schedules, and appoint dismissal hearing officers to hold hearings for tenured employees. The board does not, however, approve personnel decisions such as employee hiring, transfers, etc. No member of any local board of education shall be eligible for election as a teacher or any other position.
MANDATORY DUTIES
• Manage and Control • Appoint Superintendent • Establish Policies • Adopt Budget • Elect Chairman • Grant Tenure • Fix Salaries
TCA 49-2-203 (EIA)
• MANDATORY DUTIES • PERMISSIVE POWERS • PROHIBITED ACTS
Purchasing The board may purchase supplies, furniture, fixtures and materials of every kind. All expenditures for such purchases estimated to exceed $10,000 must be made by competitive bids. Furthermore, no board of education shall contract for the construction of school buildings valued at greater than $10,000 unless competitive bids have been made. Boards of education are not required to competitively bid for professional services.
Budget Preparation
The board of education is required to prepare a budget and to submit it to the appropriate legislative body. The statute also provides that the county board of education shall submit its budget to the county legislative body no later than 45 days prior to the July term or 45 days prior to the actual date the budget is to be adopted by the county legislative body if such adoption is scheduled prior to July 1.
Students The board of education has several duties regarding students. The law gives the board the duty to discipline students after a hearing (this can also be accomplished by a Student Discipline Hearing Authority) and the duty to establish standards and policies governing student attendance.
School Law
1.2
Duties & Powers of School Boards & Superintendents Minutes, Policies The law requires boards of education to prepare minutes of each board of education meeting and mail copies to the members of the board. T.C.A. 49-2-207 requires the local boards of education to compile and publish an official operating policy pamphlet, which must be reviewed at least once every two years.
Discretionary Authority The local board of education also has discretionary authority and duties, which include the following: • • • • • • •
the power to consolidate schools; the power to require students and employees suspected of having a communicable disease to have a physical examination; to establish night schools; to determine the use of school property by the public; to dispose of property; to establish and operate before-and-after school safety patrols; and to hire legal counsel.
Superintendent Duties In T.C.A. 49-2-301, the board of education is given the responsibility of assigning to the superintendent several duties including the following: (see chart pages 1.4-1.5) • • • • • •
•
to act for the board in seeing that the laws relating to schools are faithfully executed; to attend all meetings of the board of education; to keep records of board proceedings and receipts and disbursements of public funds; to make recommendations to the board; to have general supervision of the schools; to prepare reports on attendance, on receipt and expenditure of funds, misappropriation of funds, and reports requested by the commissioner of education and to prepare the school budget; and to keep personnel records, licenses and contracts.
School Law
PERMISSIVE POWERS • Consolidate schools • Employ legal council • Establish child care programs • Lease buildings
1.3
Duties & Powers of School Boards & Superintendents
Legal Authority of Superintendents Subject
Superintendent’s Authority
Hiring
...employ all persons for positions that have been authorized and funded by the local board of education.
Transfers
...transfer personnel from one position to another within the system.
Dismissal
...may dismiss any non-tenured employee for any lawful reason consistent with board policies
Resignation
Tenure
Non-renewal
...accept the resignation of employees without the approval of the board.
...recommend teachers eligible for tenure to the board. Tenure may not be awarded without the superintendent’s recommendation and board approval. ...may non-renew any non-tenured employee without board approval.
School Law
1.4
Duties & Powers of School Boards & Superintendents
Legal Authority of Superintendents Subject
Superintendent’s Authority
Assignments in Schools
...assign personnel to schools. Principals are authorized to make decisions regarding the specific duties of all personnel assigned to the schools.
Principals’ Contracts
...must establish a written employment contract with principals. The contract shall include specific duties and performance standards.
Teachers’ Contracts
...must make a written contract with the teachers at a fixed salary per month before the teachers enter upon their duties.
Leaves of Absence
...may approve leaves of absence in accordance with laws, policies, and contracts.
Substitute Teachers
...employed by the director of schools or third party contractor.
School Law
1.5
Duties & Powers of School Boards & Superintendents
School boards and County Legislative Bodies T.C.A. § 49-2-101 addresses the duties and powers of the county legislative body. These primarily deal with budgetary and financial powers such as considering and adopting a school budget, providing necessary funds for the adopted budget, requiring the board of education to make reports on receipts and expenditures, issuing bonds and levying taxes. Noticeably absent is any authority or duty to engage in the administration of the school system.
LOCAL BOARDS & LEGISLATIVE BODIES LEA Submit periodic reports
RESPONSIBILITY
REPORTS 1.
Financial
2.
School Needs
3.
Progress
LLB Accept periodic reports
LOCAL BOARDS & LEGISLATIVE BODIES LEA
RESPONSIBILITY
Adopt and present to LLB
BUDGET
LLB Approve or reject total budget Levy taxes
The law specifically assigns the responsibility of the operation of the public schools to the board of education. Authority is granted to the board in dealing with several matters such as personnel, finance, students, facilities etc. These sections of Tennessee law express the legislative intent that these two bodies are charged with differing duties and are not empowered to undertake responsibilities outside their statutory scope.
Tennessee case law also offers some guidance on this issue. The Tennessee Supreme Court held in the case of Mosier v. Thompson, 393 S.W.2d 734 (Tenn. 1965), that: “the power and jurisdiction of quarterly courts (now the county legislative bodies) is set out by statute and it has long been the policy of this State that such enabling statutes are strictly construed. It has been held repeatedly that the county court, whether quorum or quarterly, has only such powers and jurisdiction as are vested in it by statute.”
School Law
LOCAL BOARDS & LEGISLATIVE BODIES LEA
RESPONSIBILITY
LLB
Make Purchases
Fiscal Authority
Examine Accounts
Order Warrants
Monitor Budgets
1.6
Duties & Powers of School Boards & Superintendents In the case of Wright v. State, 106 S.W.2d 866 (Tenn. 1937), the court held that powers entrusted to county courts emanate from the Legislature alone and a power claimed by a county court that is not conferred by the Legislature does not exist. Finally, the Tennessee Court of Appeals in Morgan County Board of Commissioners v. Morgan County Board of Education, No. 03A01-9308-CV-00290 (Tenn.Ct.App. 1994) citing State ex rel. Boles v. Groce, 280 S.W. 27 (Tenn. 1926) stated that : “The county board of education is a separate and distinct entity from that of the county court, created by the state, with well defined duties and powers, over which the county court has no supervisory jurisdiction.”
RESPONSIBILITY
Elections Appointments
LEA
RESPONSIBILITY
Plan & propose construction
BUILDINGS
Select site
LLB Provide funding Issue Bonds
Award contracts
In summary, the statutory scheme crafted by the Legislature to govern local education matters distinguishes those powers bestowed on boards of education and those given to local legislative bodies.
LOCAL BOARDS & LEGISLATIVE BODIES LEA
LOCAL BOARDS & LEGISLATIVE BODIES
LLB Fill Vacancies Reapportion Transition Plan
School Law
1.7
Duties & Powers of School Boards & Superintendents Case Studies Often, the relationships between boards of education and county commissions become difficult and one or both parties will end up taking a disagreement or dispute to court. Most of the cases start out in the local Chancery Court but usually end up being decided by the Tennessee Court of Appeals or the Tennessee Supreme Court. Several such cases are featured in the Legal Reference Materials section on page 1.20.
School Law
1.8
Duties & Powers of School Boards & Superintendents
State Mandates BUDGET DATES 45 days prior LEA submits to CLB July 1
Adopted budget implemented or continuation budget enacted
October 1 Continuation budget invalid MAINTENANCE OF EFFORT REQUIRED No reduction in local funding shall be permitted (TCA 49-2-203) SUPPLANTING OF FUNDS PROHIBITED State funds can not be used to supplant either directly or indirectly any local current operation funds LOCAL MATCH REQUIRED Instructional Components Classroom components Non classroom components
70/30 75/25 50/50
CLASS SIZE LIMITATIONS Grades Average Maximum Size K-3 20 25 4-6 25 30 7-12 30 35 Voc Ed 25 25
School Law
1.9
Duties & Powers of School Boards & Superintendents
Legal Reference Materials
School Law
1.10
Duties & Powers of School Boards & Superintendents
Statutory Responsibilities of the Board 49-2-203. Duties and powers. (a) It is the duty of the local board of education to: (1) Elect, upon the recommendation of the director of schools, teachers who have attained or are eligible for tenure and fix the salaries of and make written contracts with the teachers; (A) No individual shall be elected to an interim contract unless the individual so elected is to fill a vacancy created by a leave of absence as set forth in 49-5-702; (B) All contracts with educational assistants will be for nonteaching positions; (C) Educational assistants shall be subject to direct supervision of certificated teachers when directly involved in the instructional program; (D) No member of any local board of education shall be eligible for election as a teacher or any other position under the board carrying with it any salary or compensation; (2) Manage and control all public schools established or that may be established under its jurisdiction; (3) Purchase all supplies, furniture, fixtures and material of every kind through the executive committee; (A) All expenditures for such purposes may follow the prescribed procedures of the LEA’s respective local governing body, so long as that body, through its charter, private act or ordinance has established a procurement procedure that provides for advertisement and competitive bidding, except that, if a newspaper advertisement is required, it may be waived in case of emergency. If the LEA chooses not to follow the local governing body’s purchasing procedures, all expenditures for such purposes estimated to exceed ten thousand dollars ($10,000) or more shall be made on competitive bids, which shall be solicited by advertisement in a newspaper of general circulation in the county, except that the newspaper advertisement may be waived in the event of emergency. School districts that have a purchasing division may use a comprehensive vendor list for the purpose of soliciting competitive bids; provided, that the vendors on the list are given notice to bid; and provided, further, that the purchasing division shall periodically advertise in a newspaper of general circulation in the county for vendors and shall update the list of vendors following the advertisement; (B) If the LEA chooses not to follow the local governing body’s purchasing procedures, all purchases of less than ten thousand dollars ($10,000) may be made in the open market without newspaper notice, but shall, whenever possible, be based upon at least three (3) competitive bids; (C) (i) For construction of school buildings or additions to existing buildings, the LEA may follow prescribed procedures of its respective local governing body, so long as that body, through its charter, private act or ordinance has established a procurement procedure that provides for advertisement and competi-
School Law
1.11
Duties & Powers of School Boards & Superintendents tive bidding. If the LEA chooses not to follow the local governing body’s procedure, the board shall contract, following open bids, for the construction of school buildings or additions to existing buildings, the expenditure for which is in excess of ten thousand dollars ($10,000). Public notice shall be given at least ten (10) days in advance of accepting bids for the construction, and the board shall award the contract to the lowest and best bidder. Whether following local governing body procedures or those set forth in this subdivision (a)(3)(C)(i), in the event no bid is within the budgetary limits set by the board for the construction, the board may negotiate with the lowest and best bidder to bring the cost of the construction within the funds available, with the approval of the commissioner of education; (ii) Construction management services that are provided for a fee and that involve preconstruction and construction administration and management services are deemed to be professional services and may be performed by a qualified person licensed under title 62, chapter 6. Construction management services are to be procured for each project through a written request for proposals process through advertisement made pursuant to subdivision (a)(3)(A). A board may include, in a single written request for proposal process, new school construction or renovation projects at up to three (3) sites, if construction at all sites will occur at substantially the same time. The written request for proposals process will invite prospective proposers to participate and will indicate the service requirements and the factors used for evaluating the proposals. The factors shall include the construction manager’s qualifications and experience on similar projects, qualifications of personnel to be assigned to the project, fees and costs or any additional factors deemed relevant by the procuring entity for procurement of the service. Cost is not to be the sole criterion for evaluation. The contract for such services shall be awarded to the best qualified and responsive proposer. A construction manager is prohibited from undertaking actual construction work on a project over which the construction manager coordinates or oversees the planning, bid or construction phases of the project, except in instances where bids have been solicited twice and no bids have been submitted. If the construction manager can document that a good faith effort was made in each bid solicitation to obtain bids and no bids were received, then the construction manager may perform the construction work at a price agreed upon by the construction manager, the architect and the owner of the project. A school system, at its own discretion, may perform work on the project with its own employees, and may include the coordination and oversight of this work as part of the services of the construction manager. Sealed bids for actual construction work shall be opened at the bid opening and the names of the contractors and their bid amounts shall be announced; (iii) Construction management agent or advisor services for the construction of school buildings or additions to existing buildings in accordance with subdivision (a)(3)(C)(ii) may be performed by: (a) A general contractor licensed in Tennessee pursuant to title 62, chapter 6; provided, that none of such services performed by a general contractor involve any of the services exempt from the requirements of title 62, chapter 6 as “normal architectural and engineering services” under § 62-6-102(4) (B) or (C), unless, with regard to the performance of any services defined as normal architectural and
School Law
1.12
Duties & Powers of School Boards & Superintendents engineering services, the general contractor is also licensed as an architect or engineer under title 62, chapter 2; or (b) An architect or an engineer licensed pursuant to title 62, chapter 2; provided, that none of such services performed by an architect or engineer involve any of the services required to be performed by a contractor within the definition of “contractor” under § 62-6-102, unless with regard to the performance of any services included within the definition of contractor, the architect or engineer is also licensed as a contractor under title 62, chapter 6. (iv) Construction work that is under the coordination and oversight of a construction manager shall be procured through competitive bids as provided in this subsection (a); (D) No board of education shall be precluded from purchasing materials and employing labor for the construction of school buildings or additions to school buildings; (E) Subdivisions (a)(3)(A), (B) and (D) apply to local boards of education of all counties, municipalities and special school districts; provided, however, that subdivisions (a)(3)(A) and (B) shall not apply to purchases by or for a county’s or metropolitan government’s board of education in counties with a population of not less than two hundred thousand (200,000), according to any federal census, so long as the county, through county or metropolitan government charter, private act, or ordinance, establishes a procedure regarding purchasing that provides for advertisement and competitive bidding and sets a dollar amount for each purchase requiring advertisement and competitive bidding; and provided, further, that purchases of less than the dollar amount requiring advertisement and competitive bidding shall, wherever possible, be based upon at least three (3) competitive bids. Subdivision (a)(3)(C) applies to county and municipal boards of education; (F) (i) Notwithstanding any law to the contrary, contracts for energy-related services that include both engineering services and equipment, and have as their purpose the reduction of energy costs in public schools or school facilities shall be awarded on the basis of recognized competence and integrity and shall not be competitively bid; (ii) In the procurement of engineering services under this subdivision (a)(3)(F), the local board may seek qualifications and experience data from any firm or firms licensed in Tennessee and interview such firm or firms. The local board shall evaluate statements of qualifications and experience data regarding the procurement of engineering services, and shall conduct discussions with such firm or firms regarding the furnishing of required services and equipment and then shall select the firm deemed to be qualified to provide the services and equipment required; (iii) The local board shall negotiate a contract with the qualified firm for engineering services and equipment at compensation which the local board determines to be fair and reasonable to the LEA. In making such determination, the local board shall take into account the estimated value of the services to be rendered, the scope of work, complexity and professional nature thereof and the value
School Law
1.13
Duties & Powers of School Boards & Superintendents of the equipment; (iv) Should the local board be unable to negotiate a satisfactory contract with the firm considered to be qualified, at a price determined to be fair and reasonable, negotiations shall continue with other qualified firms until an agreement is reached; (v) A local board having a satisfactory existing working relationship for engineering services and equipment under this subdivision (a)(3)(F) may expand the scope of the services; provided, that they are within the technical competency of the existing firm, without exercising this subdivision (a)(3) (F); and (vi) This subdivision (a)(3)(F) shall not prohibit or prevent the energy efficient schools council from establishing required design criteria in accordance with industry standards (4) Order warrants drawn on the county trustee on account of the elementary and the high school funds, respectively; (5) Visit the schools whenever, in the judgment of the board, such visits are necessary; (6) Except as otherwise provided in this title, dismiss teachers, principals, supervisors and other employees upon sufficient proof of improper conduct, inefficient service or neglect of duty; provided, that no one shall be dismissed without first having been given in writing due notice of the charge or charges and an opportunity for defense; (7) Suspend, dismiss or alternatively place pupils, when the progress, safety or efficiency of the school makes it necessary or when disruptive, threatening or violent students endanger the safety of other students or school system employees; (8) Have enumerated the scholastic population of the local school district in May of every odd-numbered year; (9) Provide proper record books for the director of schools, and should the appropriate local legislative body fail or refuse to provide a suitable office and sufficient equipment for the director of schools, the local board of education may provide the office and equipment out of the elementary and the high school funds in proportion to their gross annual amounts; (10) (A) (i) Require the director of schools and chair of the local board to prepare a budget on forms furnished by the commissioner, and when the budget has been approved by the local board, to submit it to the appropriate local legislative body; (ii) No LEA shall submit a budget to the local legislative body that directly or indirectly supplants or proposes to use state funds to supplant any local current operation funds, excluding capital outlay and debt service; (B) (i) Notwithstanding any other law to the contrary, for any fiscal year, if state funding to the county
School Law
1.14
Duties & Powers of School Boards & Superintendents for education is less than state funding to the county for education during the fiscal year 1990-1991 or less than the previous fiscal year’s state funding to the county for education, except that a reduction in funding based on fewer students in the county rather than actual funding cuts shall not be considered a reduction in funding for purposes of this subdivision (a)(10)(B)(i), local funds that were appropriated and allocated to offset state funding reductions during any previous fiscal year are excluded from this maintenance of local funding effort requirement; (ii) It is the intent of subdivision (a)(10)(B)(i) to allow local governments the option to appropriate and allocate funds to make up for state cuts without being subject to a continuation of funding effort requirement as to those funds for any year during which the state reinstates the funding or restores the previous cuts, and during any subsequent year should the state fail to restore the funding cuts; (C) Subdivision (a)(10)(A)(ii) shall not apply to a newly created LEA in any county where the county and city schools are being combined for a period of three (3) years after the creation of the LEA. The county board of education shall submit its budget to the county legislative body no later than forty-five (45) days prior to the July term or forty-five (45) days prior to the actual date the budget is to be adopted by the county legislative body if the adoption is scheduled prior to July 1; (11) Prepare, or have prepared, a copy of the minutes of each meeting of the board of education, and mail a copy of the minutes no more than thirty (30) days after the board meeting or at the time they are mailed to or otherwise provided to members of the board, if such is earlier, to the president of each local education association. Any subsequent corrections, modifications or changes shall be distributed in the same manner; (12) Adopt and enforce, in accordance with guidelines prescribed by the state board of education pursuant to § 49-6-3002, minimum standards and policies governing student attendance, subject to availability of funds; (13) Develop and implement an evaluation plan for all certificated employees in accordance with the guidelines and criteria of the state board of education, and submit the plan to the commissioner for approval; (14) (A) Notwithstanding any other public or private act to the contrary, employ a director of schools under a written contract of up to four (4) years’ duration, which may be renewed. No school board, however, may either terminate, without cause, or enter into a contract with any director of schools during a period extending from forty-five (45) days prior to the general school board election until thirty (30) days following the election. Any vacancy in the office of the director that occurs within this period shall be filled on a temporary basis, not extending beyond sixty (60) days following the general school board election. An option to renew a contract that exists on May 22, 2001, may be exercised within the time period set out in this subdivision (a)(14)(A). Any such person transferred during the term of the person’s contract shall not have the person’s salary diminished for the remainder of the contract period. The board may dismiss the director for cause as specified in this section or in chapter 5, part 5 of this title, as appropriate. The director of schools may be referred to as the superintendent and references to or duties of the former county super-
School Law
1.15
Duties & Powers of School Boards & Superintendents intendents shall be deemed references to or duties of the director of schools employed under this section. The school board is the sole authority in appointing a director of schools; (B) Each school board shall adopt a written policy regarding the method of accepting and reviewing applications and interviewing candidates for the position of director of schools; (C) No school board shall extend the contract of a director of schools without giving notice of the intent to do so at least fifteen (15) calendar days prior to the scheduled meeting at which action shall be taken. Further, except in cases concerning allegations of criminal or professional misconduct, no school board shall terminate the contract or remove a director of schools from office without giving notice at least fifteen (15) calendar days prior to the scheduled meeting at which action shall be taken. Notice of extension or termination of a contract of a director of schools shall include the date, time and place of the meeting, and shall comport with all other requirements of §§ 8-44-103 and 49-2-202(c)(1). The proposed action shall be published as a specific, clearly stated item on the agenda for the meeting. Such item, for the convenience of the public attending the meeting, shall be the first item on the agenda; (15) Adopt policies on the employment of substitute teachers. The policies shall, at a minimum, address qualifications and training and shall ensure substitute teachers are subject to investigation pursuant to § 49-5-413. The policies shall also prohibit hiring any substitute teacher whose records with the state department of education indicate a license or certificate currently in revoked status; and (16) Develop and implement an evaluation plan to be used annually for the director of schools. The plan shall include, but shall not be limited to, sections regarding job performance, student achievement, relationships with staff and personnel, relationships with board members, and relationships with the community. (b) The local board of education has the power to: (1) Consolidate two (2) or more schools whenever in its judgment the efficiency of the schools would be improved by the consolidation; (2) Require school children and any employees of the board to submit to a physical examination by a competent physician whenever there is reason to believe that the children or employees have tuberculosis or any other communicable disease, and upon certification from the examining physician that the children or employees have any communicable disease, to exclude them from school or service until the child or children, employer or employers, employee or employees furnish proper certificate or certificates from the examining physician or physicians showing the communicable disease to have been cured; (3) Establish night schools and part-time schools whenever in the judgment of the board they may be necessary; (4) Permit school buildings and school property to be used for public, community or recreational purposes under rules, regulations and conditions as prescribed from time to time by the board of education;
School Law
1.16
Duties & Powers of School Boards & Superintendents (A) No member of the board or other school official shall be held liable in damages for any injury to person or property resulting from the use of school buildings or property; (B) The local board of education may 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 system to the owners or operators of private child care centers and kindergartens for the purpose of providing educational and child care services to the community. The leases may not be entered for a term exceeding five (5) years and must be on reasonable terms that are worked out between the school board and the owner or operator. The leasing arrangement entered into in accordance with this subdivision (b)(4)(B) shall not be intended or used to avoid any school integration requirement pursuant to the fourteenth amendment to the Constitution of the United States. The local board of education shall not execute any lease pursuant to this subdivision (b)(4) that would replace or supplant existing kindergarten programs or kindergarten programs maintained pursuant to the Minimum Kindergarten Program Law, codified in § 49-6201. This subdivision (b)(4) shall also apply to municipal boards of education; (5) Employ legal counsel to advise or represent the board; (6) Make rules providing for the organization of school safety patrols in the public schools under its jurisdiction and for the appointment, with the permission of the parents, of pupils as members of the safety patrols; (7) Establish minimum attendance requirements or standards as a condition for passing a course or grade; provided, that the requirements or standards are established prior to any school year in which they are to be applicable, are recorded in board minutes and publicized through a newspaper of general circulation prior to implementation and are printed and distributed to students prior to implementation; and provided, further, that the requirements or standards shall not violate § 49-6-3002(b); (8) Provide written notice to probationary teachers of specific reasons for failure of reelection pursuant to this title; provided, that any teacher so notified shall be given, upon request, a hearing to determine the validity of the reasons given for failure of reelection; provided, that: (A) The hearings shall occur no later than thirty (30) days after the teacher’s request; (B) The teacher shall be allowed to appear, call witnesses and plead the teacher’s cause in person or by counsel; (C) The board of education shall issue a written decision regarding continued employment of the teacher; and (D) Nothing contained in this subdivision (b)(8) shall be construed to grant tenure or the expectation of continued employment to any person; (9) Offer and pay a bonus or other monetary incentive to encourage the retirement of any teacher or other employee who is eligible to retire. For purposes of this subdivision (b)(9), “local board of education” means
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Duties & Powers of School Boards & Superintendents the board of education of any county, municipal or special school system; (10) Lease or sell buildings and property or the portions of buildings or property it determines are not being used or are not needed at present by the public school system in the manner deemed by the board to be in the best interest of the school system and the community that the system serves. In determining the best interest of the community, the board may seek and consider recommendations from the planning commission serving the community. No member of the local or county board or other school official shall be held liable in damages for any injury to person or property resulting from the use of the school buildings or property. No lease or sale shall be used to avoid any school integration requirement. A local board of education may also dispose of surplus property as provided in §§ 49-6-2006 and 49-6-2007, it being the legislative intent that a local board at its discretion may dispose of surplus property to private owners as well as civic or community groups as provided by this subdivision (b)(10); (11) Establish and operate before and after school care programs in connection with any schools, before and after the regular school day and while school is not in session. No Tennessee foundation program school funds or any required local matching funds shall be used in connection with the operation of these programs, but the board may charge a fee of any child attending a before and after school care program. In these programs, the board may use teachers on such extended program assignments as may be authorized by § 49-5-5209 [repealed] and policies established pursuant to § 49-5-5209 [repealed]; (12) Contract for the management and operation of the alternative schools provided for in 49-6-3402 with any other agency of local government; (13) Include in student handbooks, or other information disseminated to parents and guardians, information on contacting child advocacy groups and information on how to contact the state department of education for information on student rights and services; (14) Cooperate with community organizations in offering extended learning opportunities; and (15) Apply for and receive federal or private grants for educational purposes. Notwithstanding title 5, chapter 9, part 4, except for grants requiring matching funds, in-kind contributions of real property or expenditures beyond the life of the grant, appropriations of federal or private grant funds shall be made upon resolution passed by the local board of education and shall comply with the requirements established by the granting entity. A county board of education or city board of education shall provide a copy of such resolution to the local legislative body as notice of the board’s actions within seven (7) days of the resolution’s passage. (c) (1) (A) Notwithstanding title 8, chapter 44, part 1, a local board of education may conduct a scheduled board meeting by electronic means as long as the member can be visually identified by the chair, including, but not limited to, telephone, videoconferencing or other web-based media, if a member is absent because the member is required to be out of the county in which the LEA is located for the member’s work, the member is dealing with a family emergency as determined by the LEA, or because of the member’s military
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Duties & Powers of School Boards & Superintendents service. Only members who are out of the county for work, family emergency or military service may attend and participate in the meeting electronically. (B) No board meeting shall be conducted with electronic participation unless a quorum of members is physically present at the location of the meeting. (C) A board member wishing to participate in a scheduled board meeting electronically who is or will be out of the county because of work shall give at least five (5) days notice prior to the scheduled board meeting of the member’s intention to participate electronically. (D) No board member shall participate electronically in board meetings more than two (2) times per year; except, that this limitation shall not apply to a board member who is out of the county due to military service. (E) The local board of education shall develop a policy for conducting such meetings. (2) Subdivision (c)(1) shall not apply in any county having a metropolitan form of government and a population in excess of five hundred thousand (500,000), according to the 2010 federal census or any subsequent federal census.
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Duties & Powers of School Boards & Superintendents
Statutory Responsibilities of the Superintendent 49-2-301. Director of schools (a) Each local board of education is authorized to employ a director of schools, as provided for in § 49-2203, subject to requirements of law. This director of schools may be referred to as superintendent, but all references to or duties or powers of the former county superintendents of public instruction shall be deemed to be references to or powers or duties of the director of schools. Failure to change a reference to county superintendent to superintendent or director of schools shall not be deemed to continue to revive the former office or position of county superintendent, it being the intention in this part to convert the former elected office of superintendent of public instruction to an administrative position filled by the applicable local board of education. (b)(1) It is the duty of the board of education to assign to its director of schools the duty to: (A) Act for the board in seeing that the laws relating to the schools and rules of the state and the local board of education are faithfully executed; (B) Attend all meetings of the board and to serve as a member of the executive committee of the board, without additional compensation; (C) Keep on electronic disks and in well bound books, furnished by the board, a complete and accurate record of the proceedings of all meetings of the board and of the director’s official acts; (D) Keep on electronic disks and in well bound books, furnished by the board and arranged according to the regulations prescribed by the commissioner of education, a detailed and accurate account of all receipts and disbursement of the public school funds; (E) Issue, within ten (10) days, all warrants authorized by the board for expenditures for public school funds; (F) Make such recommendations to the board as the director deems for the best interest of the public schools, but in no case shall the director have a vote on any question coming before the board; (G) Have general supervision of all schools, and visit the schools from time to time, and advise with the teachers and members of the board as to their condition and improvement;
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Duties & Powers of School Boards & Superintendents (H) Require the use of the state course of study for all the public schools and the system of promoting pupils through the several grades of the public schools in accordance with regulations of the commissioner, as approved by the state board; (I) Sign all certificates and diplomas of pupils who complete the courses of study prescribed for the elementary and high schools; (J) Recommend to the board teachers who are eligible for tenure or notify such teachers of their failure of reelection pursuant to § 49-5-409; (K) Recommend to the board salaries for teachers in accordance with the salary schedule and the salaries and wages of all other employees nominated by the director of schools; (L) Assign teachers and educational assistants to the several schools; (M) Require all teachers to submit to the director for record their licenses or authority to teach, given by the state board, and keep a complete record of same; (N) File all contracts entered into with teachers and employees of the board, before they begin their services in the public schools; (O) Furnish to teachers or principals the names of pupils belonging to their respective schools, the list to be taken from the census enumeration or other reliable records on file in the director of schools’ office; (P) Issue certificates relative to the employment of minors who are enrolled as students in the director of schools’ district; (Q) Prepare reports of attendance to be assembled by the director; provided, that the director shall report to the commissioner any failure on the part of any principal or director of schools of any school system within the county to make the reports of attendance; (R) Report to the county trustee and the commissioner, on or before July 1 of each year, the attendance; (S) Make a written report, quarterly, to the appropriate local legislative body, for the board, of all receipts and expenditures of the public school funds, which accounts shall contain full information concerning the conditions, progress and needs of the schools of the school system and which shall be audited by the appropriate fiscal officer and local legislative body;
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Duties & Powers of School Boards & Superintendents (T) Be present at all quarterly and annual settlements of the county trustee with the county mayor covering all school funds arising from state apportionments, county levies and all other sources, and report the director’s acts to the director of schools’ board; (U) Report to the local legislative body and the commissioner, whenever it appears to the director that any portion of the school fund has been, or is in danger of being, misappropriated or in any way illegally disposed of or not collected; (V) Make reports to the commissioner of education when requested by the commissioner; (W) Prepare, annually, a budget for the schools in the director’s school system, submit the budget to the board for its approval and present it to the county or other appropriate local legislative body for adoption as provided for by charter or private legislative act; provided, that: (i) The budget shall set forth in itemized form the amount necessary to operate the schools for the scholastic year beginning on July 1, following, or on such date as provided for by charter or private legislative act; and (ii) Any change in the expenditure of money as provided for by the budget shall first be ratified by the local board and the appropriate local legislative body; (X) Give the director’s full time and attention to the duties of the director’s position; (Y) Deliver to the director’s successor all records and official papers belonging to the position. It is a Class C misdemeanor to refuse to deliver the records and files on demand of the director’s successor. It is a separate offense for each month during which the director persists in withholding the records and files; (Z) File with the commissioner of education a copy of the budget adopted by the county or other appropriate local legislative body within ten (10) days after its adoption; (AA) Furnish to the commissioner a list of the teachers elected by the board and their respective salaries, on forms furnished by the commissioner; (BB) Grant any licensed employee, or any other person considered as a professional employee, access at any reasonable time to the employee’s personnel file or files, whether maintained by the employee’s principal, supervisor, director, board or any other official of the school system; (CC) Give any licensed or professional employee, on request and on payment of reasonable compensa-
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Duties & Powers of School Boards & Superintendents tion, a copy of specified documents in the employee’s personnel file; (DD) Establish a procedure whereby an updated copy of the rules, regulations and minimum standards of the state board shall be kept on file in an easily accessible place in each school library during normal school hours; (EE) Within the approved budget and consistent with existing state laws and board policies, employ, transfer, suspend, non-renew and dismiss all personnel, licensed or otherwise, except as provided in § 492-203(a)(1) and in chapter 5, part 5 of this title; (FF) All persons who are employed in a position for which no teaching license is required shall be hired at the will of the director of schools. The local board of education shall develop a policy for dismissing such employees; (GG)(i) The director may dismiss any nontenured, licensed employee under the director’s jurisdiction for incompetence, inefficiency, insubordination, improper conduct or neglect of duty, after giving the employee, in writing, due notice of the charge or charges and providing a hearing; provided, that no nontenured, licensed employee under the director’s jurisdiction shall be dismissed without first having been given, in writing: (a) Notice of the charge or charges; (b) An opportunity for a full and complete hearing before an impartial hearing officer selected by the board; (c) An opportunity to be represented by counsel; (d) An opportunity to call and subpoena witnesses; (e) An opportunity to examine all witnesses; and (f ) The right to require that all testimony be given under oath; (ii) Factual findings and decisions in all dismissal cases shall be reduced to written form and delivered to the affected employee within ten (10) working days following the close of the hearing; (iii) Any nontenured, licensed employee desiring to appeal from a decision rendered in favor of the school system shall first exhaust the administrative remedy of appealing the decision to the board of
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Duties & Powers of School Boards & Superintendents education within ten (10) working days of the hearing officer rendering written findings of fact and conclusions to the affected employee; (iv) Upon written notice of such appeal being given to the director, the director shall prepare a copy of the proceedings, transcript, documentary and other evidence presented, and transmit the copy of the proceedings, transcript, documentary and other evidence presented within twenty (20) working days of receipt of notice of appeal to the board; (v) The board shall hear the appeal on the record and no new evidence shall be introduced. The affected employee may appear in person or by counsel and argue why the decision should be modified or reversed. The board may sustain the decision, send the record back if additional evidence is necessary, revise the penalty or reverse the decision. Before any such charges shall be sustained or punishment inflicted, a majority of the membership of the board shall concur in sustaining the charges. The members of the board shall render the decision on the appeal within ten (10) working days after the conclusion of the hearing; (vi) The director of schools shall also have the right to appeal any adverse ruling by the hearing officer to the board under the same conditions as are set out in this subdivision (b)(1)(GG); (vii) Any party dissatisfied with the decision rendered by the board shall have the right to appeal to the chancery court in the county where the school system is located within twenty (20) working days after receipt of notice of the decision of the board. It shall be the duty of the board to cause to be transmitted the entire record and other evidence in the case to the court. The review of the court shall be de novo on the record of the hearing held by the hearing officer and reviewed by the board; (HH) All actions of the directors or their designees shall be consistent with the existing board policies, rules, contracts and regulations; (II) Perform such other official duties as may be prescribed by law; (JJ) Each LEA shall submit a report to the education committees of the senate and house of representatives by January 1 each year of the number of places that are required in alternative schools within that system to accommodate students in that system placed in alternative schools; and (KK) Authorize each principal to make staffing decisions regarding administrative personnel for the principal’s school. (2) The records required to be maintained pursuant to this subsection (b) shall be kept in a location that is
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Duties & Powers of School Boards & Superintendents secure from the effects of natural disasters, to include fires, earthquakes, tornadoes and other catastrophic events. (c) It is a Class C misdemeanor for any director to take any other contract under the board of education or to perform any other service for additional compensation, or for any director to act as principal or teacher in any school or to become the owner of a school warrant other than that allowed for the director’s service as director. A director who violates this subsection (c) shall also be dismissed from the director’s position. (d) Any director of schools who is appointed by the local board of education elected by the general public is only required to have a baccalaureate degree.
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Duties & Powers of School Boards & Superintendents
Tennessee Public Charter Schools Act of 2002 49-13-101. Short title. This chapter shall be known and may be cited as the “Tennessee Public Charter Schools Act of 2002.” 49-13-102. Purpose. (a) The purpose of this chapter is to: (1) Improve learning for all students and close the achievement gap between high and low students; (2) Provide options for parents to meet educational needs of students; (3) Encourage the use of different and innovative teaching methods, and provide greater decision making authority to schools and teachers in exchange for greater responsibility for student performance; (4) Measure performance of pupils and faculty, and ensure that children have the opportunity to reach proficiency on state academic assessments; (5) Create new professional opportunities for teachers; and (6) Afford parents substantial meaningful opportunities to participate in the education of their children. (b) It is the intention of this chapter to provide an alternative means within the public school system for ensuring accomplishment of the necessary outcomes of education by allowing the establishment and maintenance of public charter schools that operate within a school district structure but are allowed maximum flexibility to achieve their goals. (c) It is the intent of this chapter to provide both the state department of education and local school systems with options relative to the governance and improvement of high priority schools failing to meet adequate yearly progress as outlined in both § 49-1-602 and the federal Elementary and Secondary Education Act, compiled in 20 U.S.C. § 6301 et seq. (d) It is the intent of this chapter to provide the state department of education and local school systems with options relative to the delivery of instruction for those students with special needs as specified in the federal IDEA.
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Duties & Powers of School Boards & Superintendents
(e) It is the intent of this chapter to provide local school systems the option to work in concert with the state’s public higher education institutions to establish charter school “laboratories of teaching and learning” as a means of fostering educational innovations for implementation statewide. 49-13-103. Application. This chapter applies only to schools formed and operated in accordance with this chapter. 49-13-104. Chapter definitions. As used in this chapter: (1) “Academic focus” means a distinctive, thematic program such as math, science, arts, general academics, or an instructional program such as Montessori or Paideia; (2) “Academic plan” means a platform that supports the academic focus of the charter school and will include instructional goals and methods for the school, which, at a minimum, shall include teaching and classroom instruction methods, materials and curriculum that will be used to provide students with knowledge, proficiency and skills needed to reach the goals of the school; (3) “Charter agreement” means a performance-based agreement between the sponsor of a public charter school and the chartering authority, the terms of which are approved by the chartering authority for an initial period of ten (10) years; (4) “Charter management organization” or “CMO” means a nonprofit entity that operates multiple charter schools at least one (1) of which is in Tennessee; (5) “Chartering authority” means the local board of education or the achievement school district as defined in § 49-1-614 that approves, renews or decides not to revoke a public charter school application or agreement; (6) “Foreign” means a country or jurisdiction outside of any state or territory of the United States; (7) “Governing body” means the organized group of persons who will operate a public charter school or schools by deciding matters, including, but not limited to, budgeting, curriculum and other operating procedures for the public charter school and by overseeing management and administration of a public charter school;
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Duties & Powers of School Boards & Superintendents (8) “Licensed teacher” means a person over the age of eighteen (18) who meets the qualifications of chapter 5, part 1 of this title and has received a license to teach in the public school system in compliance with the rules and regulations of the state board of education; (9) “Local education agency” or “LEA” has the same definition as used in § 49-3-302; (10) “Public charter school” means a public school in this state that is established and operating under the terms of a charter agreement and in accordance with this chapter; (11) “Sponsor” means any individual, group, or other organization filing an application in support of the establishment of a public charter school; provided, however, that a sponsor cannot be a for-profit entity, a private elementary or secondary school, a post-secondary institution not accredited by the Southern Association of Colleges and Schools, a religious or church school or promote the agenda of any religious denomination or religiously affiliated entity; and (12) “Underutilized or vacant property” means an entire property or portion thereof, with or without improvements, which is not used or is used irregularly or intermittently by the LEA for instructional or program purposes. “Underutilized or vacant property” does not include real property on which no building or permanent structure has been erected. 49-13-105. Statutes, rules and regulations. (a) Public charter schools shall be part of the state program of public education. (b) Except where waivers are otherwise prohibited in this chapter, the sponsor of a proposed public charter school may apply to either the LEA or to the commissioner of education for a waiver of any state board rule or statute that inhibits or hinders the proposed charter school’s ability to meets its goals or comply with its mission statement. Neither the LEA nor the commissioner shall waive regulatory or statutory requirements related to: (1) Federal and state civil rights; (2) Federal, state, and local health and safety; (3) Federal and state public records; (4) Immunizations; (5) Possession of weapons on school grounds;
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Duties & Powers of School Boards & Superintendents (6) Background checks and fingerprinting of personnel; (7) Federal and state special education services; (8) Student due process; (9) Parental rights; (10) Federal and state student assessment and accountability; (11) Open meetings; and (12) At least the same equivalent time of instruction as required in regular public schools. 49-13-106. Creation or conversion of charter schools. (a) (1) Public charter schools authorized by an LEA may be formed to provide quality educational options for all students residing within the jurisdiction of the chartering authority; provided, however, that an LEA may authorize charters to enroll students residing outside the LEA in which the public charter school is located pursuant to the LEA out-of-district enrollment policy and in compliance with §§ 49-6-3003 and 496-403(f ). (2) The achievement school district may authorize charter schools within the jurisdiction of the LEA for the purpose of providing opportunities for students within the LEA who are zoned to attend or enrolled in a school that is eligible to be placed in the achievement school district. For the purposes of this subdivision (a)(2), students shall not be considered “zoned” for a school that is open to all students within the LEA unless they are assigned to the school based on the LEA’s geographic zoning policies. (b) A public charter school may be formed by creating a new school or converting a school to charter status pursuant to this chapter. (1) Newly created public charter schools: (A) The sponsor of a public charter school must file a public charter school application with the chartering authority on or before April 1 of the year preceding the year in which the proposed public charter school plans to begin operation;
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Duties & Powers of School Boards & Superintendents (B) Upon approval of a charter application, the sponsor shall authorize a governing body to operate the public charter school. A public charter school shall be operated by a not-for-profit organization with exemption from federal taxation under § 501(c)(3) of the Internal Revenue Code, codified in 26 U.S.C. § 501(c)(3). No charter shall be granted to a for-profit corporation; (C) In reviewing applications for newly created charter schools, the chartering authority, if an LEA, shall give preference to, and, if the achievement school district, shall exclusively accept, applications that demonstrate the capability to meet the needs of the following groups of students: (i) Students who are assigned to, or were previously enrolled in, a school identified as a priority school, as defined by the state’s accountability system; (ii) Students who, in the previous school year, failed to test proficient in the subjects of reading/language arts or mathematics in grades three through eight (3-8) on the Tennessee comprehensive assessment program examinations; (iii) Students who, in the previous school year, failed to test proficient in the subjects of reading/language arts or mathematics on the end of course assessments in grades nine through twelve (9-12); or (iv) Students who are eligible for free or reduced price lunch; (D) If an application with the focus of serving students from a group or groups set forth in subdivision (b)(1)(C) is approved, then the school shall give preference in enrollment to students from such group or groups. Such school shall include in the annual report under § 49-13-120 the number of students from such group or groups who are attending the school; and (E) Preference for applications with the focus of serving students from a group or groups set forth in subdivision (b)(1)(C) shall not reduce the score of applications that demonstrate other strengths or focuses. (2) Conversion of schools to charter status: (A) A school may convert to a public charter school pursuant to this chapter if the parents of sixty percent (60%) of the children enrolled at the school or sixty percent (60%) of the teachers assigned to the school agree and demonstrate support by signing a petition seeking conversion and the LEA agrees to the conversion. The percentage of parents signing a petition shall be calculated on the basis of one (1) vote for each child enrolled in the school. Parents whose children are enrolled at the school shall have the option to enroll their child in another public school without penalty;
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Duties & Powers of School Boards & Superintendents (B) (i) An LEA may convert a school to a public charter school. Parents whose children are enrolled at the school shall have the option to enroll their child in another public school without penalty. An LEA’s decision on whether to convert a school may not be appealed to the state board of education; (ii) Conversion of a public school to a public charter school at the request of the local board of education: (a) Upon a local board’s review of a charter school application, the local board may request that the sponsor amend the application to provide for the conversion of an existing public school; (b) If the sponsor declines the request of the local board, then the local board shall proceed with the review of the application under § 49-13-108; (C) (i) The conversion must occur at the beginning of an academic school year and shall be subject to compliance with this chapter; and (ii) At the time of conversion to a charter school, any teacher or administrator in the charter school shall be allowed to transfer into vacant positions for which they are certified in other schools in the school system prior to the hiring of new personnel for those positions. Personnel who transfer into vacant positions in other schools in the school system shall suffer no impairment, interruption or diminution of the rights and privileges of a then existing teacher or administrator, and the rights and privileges shall continue without impairment, interruption or diminution with the local board of education. “Rights and privileges,” as used in this subdivision (b)(2)(C)(ii), include, but are not limited to, salary, pension or retirement benefits, sick leave accumulation, tenure, seniority and contract rights with the local board of education. The director of schools shall have the option to specifically assign these teachers or administrators to those vacant positions; (3) Conversion of a school to a charter school by a charter school sponsor: (A) A charter school sponsor may apply to an LEA to convert an existing public school to a charter school to serve the students zoned to the school. A charter school sponsor shall submit its application to the LEA and the LEA shall act on the application within the time frames set under §§ 49-13-107 and 49-13-108; (B) Students living in other school zones may enroll after those living in the school zone, but only if there is program, class, grade level and building capacity to serve the out-of-zone students. If applications by out-of-zone students exceed the charter school’s capacity, then enrollment of out-of-zone students shall be determined on the basis of a lottery. Out-of-zone students who attended the school the previous
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Duties & Powers of School Boards & Superintendents school year and such students’ siblings may be given preference in enrollment. Parents whose children are enrolled in the existing public school to be converted shall have the option to enroll their children in another public school operated by the LEA without penalty; (C) The conversion shall occur at the beginning of an academic school year and shall be subject to compliance with this chapter; (D) If the application to convert an existing public school to a charter school is approved, then the charter school shall occupy the existing public school’s facility; (E) (i) If the application to convert an existing public school to a charter school is approved, then any teacher or administrator in the school converted to a charter school may be allowed to transfer into vacant positions for which they are certified in other schools in the LEA. Personnel who transfer into vacant positions in other schools in the LEA shall suffer no impairment, interruption or diminution of the rights and privileges of a then existing teacher or administrator, and the rights and privileges shall continue without impairment, interruption or diminution with the local board of education; (ii) “Rights and privileges,” as used in this subdivision (b)(3)(E), include, but are not limited to, salary, pension or retirement benefits, sick leave accumulation and tenure with the local board of education. The director of schools shall have the option to specifically assign these teachers or administrators to those vacant positions; (F) If the LEA denies the application, the LEA’s decision is final and no appeal of the denial may be made. (c) (1) No charter agreement shall be granted under this chapter that authorizes the conversion of any private, parochial, cyber-based or home-based school to charter status. (2) No cyber-based public charter school may be authorized. (d) Nothing in this chapter shall be construed to prohibit any individual or organization from providing funding or other assistance to the establishment or operation of a public charter school, but the funding or assistance shall not entitle the individual or organization to any ownership interest in the school other than a security interest for repayment of a loan or mortgage. The funding or assistance shall be disclosed as provided in § 49-13-107.
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Duties & Powers of School Boards & Superintendents 49-13-107. Application process. (a) Sixty (60) days before the application process begins pursuant to subsection (b), a prospective charter school sponsor shall submit a letter of intent to the department of education and the chartering authority of its plan to submit an application to operate a charter school. (b) On or before April 1 of the year preceding the year in which the proposed public charter school plans to begin operation, the sponsor seeking to establish a public charter school shall prepare and file with the chartering authority an application providing the following information and documents: (1) A statement defining the mission and goals of the proposed charter school, including the proposed charter school’s academic focus; (2) A proposed academic plan, including the instructional goals and methods for each grade level the school will serve, which, at a minimum, shall include teaching and classroom instruction methods that will be used to provide students with the knowledge, proficiency and skills needed to reach the goals of the school; (3) A plan for evaluating student academic achievement at the proposed public charter school and the procedures for remedial action that will be used by the school when the academic achievement of a student falls below acceptable standards; (4) An operating budget based on anticipated enrollment; provided, however, that such operating budget shall not exceed a five-year projection; (5) The method for conducting annual audits of the financial, administrative and program operations of the school; (6) A timetable for commencing operations as a public charter school that shall provide for a minimum number of academic instruction days, which shall not be fewer than those required by statute; (7) The proposed rules and policies for governance and operation of the school; (8) The names and addresses of the members of the governing body; (9) A description of the anticipated student enrollment and the nondiscriminatory admission policies; (10) The code of behavior and discipline of the proposed public charter school;
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Duties & Powers of School Boards & Superintendents
(11) The plan for compliance with the applicable health and safety laws and regulations of the federal government and the laws of the state; (12) The qualifications required of employees of the proposed public charter school; (13) The identification of the individuals and entities sponsoring the proposed public charter school, including their names and addresses; (14) The procedures governing the deposit and investment of idle funds, purchasing procedures and comprehensive travel regulations; (15) The plan for the management and administration of the school; (16) A copy of the proposed bylaws of the governing body of the charter school; (17) A statement of assurance of liability by the governing body of the charter school; (18) A statement of assurance to comply with this chapter and all other applicable laws; (19) Types and amounts of insurance coverage to be held either by the charter school or approved by the chartering authority, including provisions for assuring that the insurance provider will notify the department of education within ten (10) days of the cancellation of any insurance it carries on the charter school; (20) The plan for transportation for the pupils attending the charter school; and (21) Information regarding financing commitments from equity investors or debt sources for cash or similar liquid assets sufficient to demonstrate that the charter school will have liquid assets sufficiently available to operate the school on an ongoing and sound financial basis. In lieu of cash or similar liquid assets, an applicant may provide a financial bond issued by a company authorized to issue surety bonds in this state. (c) A charter school application and any renewal application under ยง 49-13-122 shall include a disclosure of all donations of private funding, if any, including, but not limited to, gifts received from foreign governments, foreign legal entities and, when reasonably known, domestic entities affiliated with either foreign governments or foreign legal entities. (d) LEAs shall require no more than five (5) paper copies of the application in addition to an electronic version of the application.
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Duties & Powers of School Boards & Superintendents 49-13-108. Approval, denial of application. (a) (1) This section shall apply only to applications for new charter schools under § 49-13-106(b)(1) when the LEA is the chartering authority. (2) The local board of education shall have the authority to approve applications to establish public charter schools and renew public charter school agreements. The local board of education shall rule by resolution, at a regular or special called meeting, on the approval or denial of a charter application within ninety (90) days of receipt of the completed application. Should the local board of education fail to either approve or deny a charter application within the ninety-day time limit prescribed in this subdivision (a)(1), the application shall be deemed approved. (3) The grounds upon which the local board of education based a decision to deny a public charter school application must be stated in writing, specifying objective reasons for the denial. Upon receipt of the grounds for denial, the sponsor shall have thirty (30) days within which to submit an amended application to correct the deficiencies. The local board of education shall have thirty (30) days either to deny or to approve the amended application. Should the local board of education fail to either approve or deny the amended application within thirty (30) days, the amended application shall be deemed approved. (4) A denial by the local board of education of an application to establish a public charter school may be appealed by the sponsor, within ten (10) days of the final decision to deny, to the state board of education. The appeal and review process shall be in accordance with this subdivision (a)(4). Within sixty (60) days after receipt of the notice of appeal or the making of a motion to review by the state board and after reasonable public notice, the state board, at a public hearing attended by the board or its designated representative and held in the school district in which the proposed charter school has applied for a charter, shall review the decision of the local board of education and make its findings. If the state board finds that the local board’s decision was contrary to the best interests of the pupils, school district or community, the state board shall remand the decision to the local board of education with written instructions for approval of the charter. The grounds upon which the state board of education based a decision to remand the application shall be stated in writing, specifying objective reasons for the decision. The decision of the state board shall be final and not subject to appeal. The LEA, however, shall be the chartering authority. (5) LEAs may charge applicants an application fee in an amount approved by the local board of education. The application fee shall not exceed five hundred dollars ($500) per application. (b) The local board of education may consider whether the establishment of the charter school will have a substantial negative fiscal impact on the LEA such that authorization of the charter school would be contrary to the best interest of the pupils, school district or community.
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Duties & Powers of School Boards & Superintendents (c) (1) A chartering authority may disapprove a charter school application, if the proposed charter school plans to staff positions for teachers, administrators, ancillary support personnel or other employees by utilizing or otherwise relying on nonimmigrant foreign worker H1B or J1 visa programs in excess of three and one half percent (3.5%) of the total number of positions at any single school location for any school year. (2) Notwithstanding subdivision (c)(1), a chartering authority may not deny a charter school application solely because the proposed school plans to exceed the limitation in subdivision (c)(1) in employing foreign language instructors who, prior to employment, meet and, during the period for which such instructors’ H1B or J1 visas have been granted, will meet all Tennessee licensure requirements. If a chartering authority disapproves a charter school application under this subsection (c), the sponsor may appeal the decision to disapprove the application as provided in subsection (a). 49-13-109. Parent representative on governing body -- Advisory school council. (a) The membership of a governing body shall include at least one (1) parent representative whose child is currently enrolled in a charter school operated by the governing body. The parent representative shall be appointed by the governing body within six (6) months of the school’s opening date. A charter management organization may satisfy this requirement by establishing an advisory school council at each school that it operates. An advisory school council shall consist of no fewer than five (5) members and shall include the principal, at least one (1) parent and at least one (1) teacher representative. (b) A local board of education shall not serve as the governing body of a public charter school. 49-13-110. Charter agreement. (a) The approval by the chartering authority of a public charter school application shall be in the form of a written agreement signed by the sponsor and the chartering authority, which shall be binding upon the governing body of the public charter school. The charter agreement for a public charter school shall be in writing and contain all components of the application. (b) The governing body of the charter school may amend the original charter by making petition to the chartering authority. Timelines for approval and the appeal process in § 49-13-108 shall apply to all petitions to amend the original charter. The governing body of a charter school may also request the chartering authority to allow a voluntary termination of the charter school prior to the expiration of the charter. (c) (1) Upon dissolution of a charter school for any reason or if a charter is not renewed, any unencumbered public funds from the charter school shall revert to the LEA. In the event that a charter school is dissolved or otherwise terminated, all LEA property and improvements, furnishings and equipment purchased with
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Duties & Powers of School Boards & Superintendents public funds shall automatically revert to full ownership by the LEA, subject to complete satisfaction of any lawful liens or encumbrances. (2) If a charter school is dissolved for any reason or a charter is not renewed, the charter school is responsible for all debts of the charter school. The LEA may not assume the debt from any contract for services made between the governing body of the school and a third party, except for a debt that is previously detailed and agreed upon in writing by both the LEA and the governing body of the school and that may not reasonably be assumed to have been satisfied by the LEA. 49-13-111. Compliance. (a) A public charter school shall: (1) Operate as a public, nonsectarian, nonreligious public school, with control of instruction vested in the governing body of the school under the general supervision of the chartering authority and in compliance with the charter agreement and this chapter; (2) Meet the same performance standards and requirements adopted by the state board of education for public schools; (3) Receive state, federal, and local funds from the local board of education; (4) Provide special education services for students as provided in chapter 10 of this title; and (5) Administer state assessments as provided in chapter 1, part 6 of this title. (b) A public charter school shall be subject to all federal and state laws and constitutional provisions prohibiting discrimination on the basis of disability, race, creed, color, national origin, religion, ancestry or need for special education services. A public charter school may not violate or be used to subvert any state or federal court orders in place in the local school district. (c) (1) A public charter school shall comply with all applicable health and safety standards, regulations and laws of the United States and this state. (2) The governing body of a public charter school shall ensure that the public charter school provides parents and guardians with information about meningococcal disease and the effectiveness of vaccination against meningococcal disease at the beginning of every school year. This information shall include the causes, symptoms, and the means by which meningococcal disease is spread and the places where parents and guardians may obtain additional information and vaccinations for their children. Nothing in this
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Duties & Powers of School Boards & Superintendents subdivision (c)(2) shall be construed to require a public charter school or its governing body to provide or purchase vaccine against meningococcal disease. (d) A public charter school shall be accountable to the chartering authority for the purposes of ensuring compliance with the charter agreement and the requirements of this chapter. (e) All contracts for goods in excess of ten thousand dollars ($10,000) shall be bid and must be approved by the governing body of each public charter school. (f ) A public charter school shall be governed and managed by a governing body in a manner agreed to by the sponsor and the chartering authority as provided in the charter agreement. (g) With regard to conflicts of interest, the governing body of a public charter school shall be subject to §§ 12-4-101 and 12-4-102. (h) The meetings of the governing body of a public charter school shall be deemed public business and must be held in compliance with title 8, chapter 44, part 1. (i) All teachers in a public charter school must have a current valid Tennessee teaching license or meet the minimum requirements for licensure as defined by the state board of education. (j) A public charter school is subject to state audit procedures and audit requirements. (k) A public charter school shall not charge tuition; provided, however, that tuition may be charged if the governing body of the charter school approves a transfer from another district to a public charter school in its district pursuant to § 49-6-3003. (l) A public charter school shall be operated on a July 1 to June 30 fiscal year and the governing body shall adopt and operate under an annual budget for the fiscal year. The budget shall be prepared in the same format as that required by the state department of education for LEAs. (m) A public charter school shall maintain its accounts and records in accordance with generally accepted accounting principles and in conformance with the uniform chart of accounts and accounting requirements prescribed by the comptroller of the treasury. The charter school shall prepare and publish an annual financial report that encompasses all funds. The annual financial report shall include the audited financial statements of the charter school; however, the chartering authority shall not require additional financial reports more frequently than required by this subsection (m) unless the chartering authority has reason or reasons to believe a public charter school is not in compliance with this chapter and states the reason or reasons in writ-
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Duties & Powers of School Boards & Superintendents ing to the public charter school sponsor. (n) A public charter school shall require any member of the governing body, employee, officer or other authorized person who receives funds, has access to funds, or has authority to make expenditures from funds, to give a surety bond in the form prescribed by ยง 8-19-101. The cost of the surety bond shall be paid by the charter school and shall be in an amount determined by the governing body. (o) The governing body shall conduct at least one (1) annual board training course and shall provide documentation of such training to the chartering authority. The training course shall be certified by the Tennessee Charter Schools Association. 49-13-112. Funding. (a) A local board of education shall allocate to the charter school an amount equal to the per student state and local funds received by the LEA and all appropriate allocations under federal law or regulation, including, but not limited to, Title I and ESEA funds. The allocation shall be in accordance with rules and regulations promulgated by the department of education. Each LEA shall include as part of its budget submitted pursuant to ยง 49-2-203, the per pupil amount of local money it will pass through to charter schools during the upcoming school year. Allocations to the charter schools during that year shall be based on that figure. The LEA shall distribute the portion of local funds it expects to receive in no fewer than nine (9) equal installments to the charter schools in the same manner as state funds are distributed pursuant to chapter 3 of this title. If the amount of local funds received increases or decreases from the budgeted figure, the LEA may adjust payments to the charter schools in October, February, and June. Before adjusting payments to the charter schools, the LEA shall receive approval from the commissioner. All funds received by a charter school shall be spent according to the budget submitted or as otherwise revised by the public charter school governing body, subject to the requirements of state and federal law. At the request of the charter school governing body, a local board of education may act as fiscal agent for a public charter school in accordance with the charter agreement and applicable state and federal law. (b) The department of education shall promulgate rules and regulations that provide for the determination of the allocation of state and local funds as provided in subsection (a). The department shall promulgate the rules and regulations effective for the 2010-2011 school years. Notwithstanding ยง 4-5-209, any rules promulgated under this subsection (b) may be promulgated as emergency rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 2. At a minimum, the rules shall provide that: (1) Allocations shall be based on one hundred percent (100%) of state and local funds received by the LEA, including current funds allocated for capital outlay purposes, excluding the proceeds of debt obligations and associated debt service;
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Duties & Powers of School Boards & Superintendents
(2) Student enrollments used in allocations shall be for the same period used in allocating state funds to the LEA under the basic education program (BEP); and (3) (A) Allocations to the charter school may not be reduced by the LEA for administrative, indirect or any other category of cost or charge except as specifically provided in a charter agreement. (B) If the charter school chooses to contract with the LEA for facilities or services, except for contract services for employee benefits or Tennessee Consolidated Retirement System contributions, then the charter agreement may permit and require that the LEA withhold up to one percent (1%) of funds that are due to the charter school in each year of the first four (4) years of the charter school’s operation; provided, however, that such withholding shall not exceed twenty thousand dollars ($20,000) annually. These funds shall be placed into an account to be held to reimburse LEAs for any monies owed to it by the charter school for payment and for any outstanding debts of the charter school should the charter school close within the first four (4) years of operation. At the beginning of the charter school’s fifth year of operation, the LEA shall remit the accumulated funds, including any interest earned, to the charter school. This subdivision (b)(3)(B) shall not apply to charter schools in existence on January 1, 2013, nor to new or expanded charter schools that are sponsored by a sponsor which has operated a charter school in the LEA for more than four (4) years. (C) Notwithstanding subdivision (b)(3)(B), if the charter agreement includes an agreement with the LEA for services for employee benefits or retirement, then the LEA may withhold funds to cover the costs of those services. Notwithstanding subdivision (b)(3)(B), if the charter agreement includes an agreement with the LEA for administrative or other services, then the LEA may withhold funds to cover the costs of those services. (D) Any fee for service that is agreed to by a charter school and the chartering authority shall be set forth in an addendum to the charter school agreement or in a separate document. (c) (1) Notwithstanding any provisions of chapter 3, part 3 of this title or this section to the contrary, the department of education shall calculate the amount of state funding required under the BEP for capital outlay as a non-classroom component to be received in a fiscal year by an LEA in which one (1) or more charter schools operate. The department shall reserve from the sum for such LEA the funds that constitute the amount due to charter schools operating in the LEA and shall not distribute such reserved amount to the LEA. The department shall distribute from the reserved amount directly to each charter school its total per pupil share as determined by its average daily membership (ADM). The per pupil share of each charter school shall be based on prior year ADM, except that the per pupil share of any charter school in its first year of operation shall be based on the anticipated enrollment in the charter agreement.
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Duties & Powers of School Boards & Superintendents (2) Notwithstanding subdivision (c)(1), the LEA shall include in the local share of funds paid to a charter school the required LEA match for the state funds generated under the BEP for capital outlay as a nonclassroom component that are paid under this subsection (c) directly to a charter school as per pupil facilities aid. (d) In order to comply with the requirements for allocating funds to the public charter school, the local board of education may provide liability or other forms of insurance pursuant to the charter agreement. (e) A public charter school may also be funded by: (1) (A) Federal grants; (B) Grants, gifts, devises or donations from any private sources; (C) State funds appropriated for the support of the public charter school, if any; and (D) Any other funds that may be received by the local school district. (2) Receipt of any such funds shall be reported to the chartering authority. Public charter schools, the local board of education and the state department of education are encouraged to apply for federal funds appropriated specifically for the support of public charter schools. 49-13-113. Enrollment. (a) Participation in a public charter school shall be based on parental choice or the choice of the legal guardian or custodian. (b) (1) A charter school shall enroll an eligible pupil who submits a timely application, unless the number of applications exceeds the capacity of a program, class, grade level or building. (2) (A) If applications exceed the planned capacity of the public charter school, the following preferences shall apply: (i) Pupils in attendance in the previous school year at any public school that converts to become a public charter school; (ii) Pupils attending during the previous school year:
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Duties & Powers of School Boards & Superintendents (a) Another charter school that has an articulation agreement with the enrolling public charter school; provided, that the articulation agreement has been approved by the chartering authority; or (b) A pre-K program operated by the charter school sponsor; (iii) Children residing within the LEA service area in which the public charter school is located, but who are not enrolled in public schools, if those children would otherwise be included in the area in which the public charter school will focus; and (iv) Children residing outside the LEA in which the public charter school is located and whose needs would be included in the area in which the public charter school will focus. (B) If enrollment within a group of preference set out in subdivision (b)(2)(A) exceeds the planned capacity of the school, enrollment within that group shall be determined on the basis of a lottery. (c) Subject to the requirements of subsections (a) and (b), preference may be afforded to the children of a teacher, sponsor or member of the governing body of the charter school, not to exceed ten percent (10%) of total enrollment or twenty-five (25) students, whichever is less. (d) Subject to the requirement of subsections (a) and (b), preference may be afforded to the siblings of a pupil who is already enrolled. (e) (1) A charter school shall provide to the department of education certification by an independent accounting firm or by a law firm that each lottery conducted for enrollment purposes complied with the requirements of this section. In lieu of such certification, a charter school may request that the department of education review and approve the lottery process. (2) The charter school shall comply with the Family Education Rights and Privacy Act, codified in 20 U.S.C. § 1232g, with respect to the publication of any list of students’ names before, during or after the enrollment and lottery process. (3) The state board of education shall promulgate rules and regulations concerning enrollment lotteries to be conducted under this subsection (e). The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
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Duties & Powers of School Boards & Superintendents 49-13-114. Transportation. (a) If a public charter school elects to provide transportation for its pupils, the transportation shall be provided by the school or by agreement with the LEA within the district in which the school is located in accordance with chapter 6, part 21 of this title. If a public charter school elects to provide transportation other than through an agreement with the LEA, the school shall receive all funds that would have been spent by the LEA to provide such transportation. If a public charter school elects not to provide transportation for its pupils, the school shall not receive the funds that would otherwise have been spent to do so. (b) For pupils who reside outside the district and who have been approved by the governing board of a charter school to attend a public charter school, the school is not required to provide or pay for transportation. (c) At the time a pupil enrolls in a public charter school, the school shall provide the child’s parent or guardian with information regarding transportation. (d) Both the school and the LEA in which the school is located shall include in their annual reports what transportation plans are in effect for charter schools. 49-13-115. Conditional approval. If approval is a prerequisite for the sponsor to raise working capital, a chartering authority may grant conditional approval for a charter application. The chartering authority shall grant full approval subject to the sponsor providing information regarding financing commitments from equity investors or debt sources for cash or working capital sufficient to demonstrate that the charter school will have liquid assets sufficiently available to operate the school on an ongoing and sound financial basis. In lieu of cash or similar liquid assets, an applicant may provide a financial bond issued by a company authorized to issue surety bonds in this state. The office of the comptroller shall verify the adequacy of any financial bond provided as assets. 49-13-116. Information on charter schools. (a) The state department of education shall provide information to the public, directly and through the local board of education, on how to form and operate a public charter school. This information shall include a standard application format, which shall include the information specified in § 49-13-107. (b) The state department of education shall monitor the status of charter school applications and shall maintain information on the total number of charter school applications, total number of charter school applications granted by type of school, total number of charter school applications denied and total number of charter school applications appealed and the status or outcome of the appeals.
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Duties & Powers of School Boards & Superintendents 49-13-117. Leaves of absence for teachers. (a) If a teacher employed by an LEA makes a written request for an extended leave of absence to teach at a public charter school, the LEA may grant the leave. Any extensions are at the discretion of the LEA. The leave shall be governed by chapter 5, part 7 of this title, including, but not limited to, reinstatement, notice of intention to return, seniority, salary and insurance. (b) The years of service acquired by a teacher while on a leave of absence to teach at a public charter school may, at the discretion of the local board, be used to obtain or determine tenure status. (c) For salary rating purposes, a teacher shall receive credit for years of service acquired while teaching at a public charter school. 49-13-119. Group insurance. Teachers, as defined in ยง 8-34-101, and other full-time permanent employees of a public charter school shall participate in the group insurance plans authorized in title 8, chapter 27, part 3 in the same manner as teachers and other full-time permanent employees of the LEA. 49-13-120. Reporting requirements. (a) The governing body of the public charter school shall make an annual progress report to the sponsor of the school, the chartering authority and the commissioner of education. The report shall contain the following information: (1) The progress of the school towards achieving the goals outlined in its charter; (2) The same information required in the reports prepared by local boards of education pursuant to state laws, rules and regulations; and (3) Financial records of the school, including revenues and expenditures. (b) The reports made pursuant to subsection (a) shall be public information pursuant to ยง 10-7-504(a)(4). Based on the information provided to the commissioner of education under subsection (a), the commissioner shall prepare and submit an annual report on charter schools to the education committee of the senate and the education committee of the house of representatives.
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Duties & Powers of School Boards & Superintendents (c) Each charter school shall provide in the report required under subsection (a) a detailed accounting, including the amounts and sources, of funds other than those funds received under § 49-13-112(a). The funds shall include, but not be limited to, any funds received from sources under § 49-13-112(e). 49-13-121. Term of charter -- Renewal. (a) New public charter schools, conversion schools and all renewals of charter agreements shall be for tenyear periods. (b) No later than April 1 of the year prior to the year in which the charter expires, the governing body of a public charter school shall submit a renewal application to the chartering authority. On or before the following February 1, the chartering authority shall rule by resolution, on whether to approve or deny the renewal application. The decision of the chartering authority shall be based on the report and evaluation provided for in § 49-13-120. A decision by the chartering authority to deny renewal may be appealed by the governing body, within ten (10) days of the decision to deny, to the state board of education. If the state board of education directs the chartering authority to approve the renewal of the charter agreement, the public charter school shall continue to operate for the prescribed period of ten (10) academic years. A decision by the state board of education to deny the renewal of a charter agreement shall be final. No appeal may be taken. (c) A public charter school renewal application shall contain a report of the school’s operations, including students’ standardized test scores, financial statements and performance audits of the nine (9) years preceding the date of the renewal application. The department of education shall develop guidelines that govern the charter renewal application process. (d) An interim review of a charter school shall be conducted by the LEA under guidelines developed by the department of education in the fifth year of a charter school’s initial period of operation and also in the fifth year following any renewal of a charter agreement. Such guidelines shall require a charter school to submit to the LEA a report on the progress of the school in achieving the goals, objectives, pupil performance standards, content standards and other terms of the approved charter agreement. (e) One (1) year prior to the date on which a charter school is required to submit a renewal application, the chartering authority shall submit to the charter school a performance report that directly reflects the renewal evaluation. 49-13-122. Revocation or renewal of charter. (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:
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Duties & Powers of School Boards & Superintendents (1) Committed a material violation of any of the conditions, standards or procedures set forth in the charter; (2) Received identification as a priority school, as defined by the state’s accountability system; (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 § 49-13108(c). (b) If the chartering authority revokes or does not renew a charter agreement, the chartering authority shall state its reasons for the revocation or nonrenewal. (c) A decision not to renew or to revoke a charter agreement may be appealed to the state board of education within ten (10) days of the decision, except for revocations or failures to renew based on the violations specified in subdivision (a)(2). State board appeals shall be handled on the same basis as provided in § 49-13-108. This section shall apply only to decisions not to renew or to revoke a charter agreement where the LEA is the chartering authority. (d) Except in the case of fraud, misappropriation of funds, flagrant disregard of the charter agreement or the provisions of this chapter or similar misconduct, or failure to remain out of priority status, a decision to revoke a charter shall become effective at the close of the academic year. 49-13-123. Enrollment of students in terminated charter school. If a charter agreement is not renewed or is terminated in accordance with § 49-13-122, a pupil who attended the school, siblings of the pupil, or another pupil who resides in the same place as the pupil may enroll in the resident district or may submit an application to a nonresident district according to § 49-6-3105 at any time. Applications and notices required by this section shall be processed and approved in a prompt manner. 49-13-124. Charter school powers. (a) The governing body of a public charter school may sue and be sued. The governing body may not levy taxes or issue bonds except in accordance with state law. A public charter school may conduct activities necessary and appropriate to carry out its responsibilities such as: (1) Contract for services, except for the management or operation of the charter school by a for-profit entity;
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Duties & Powers of School Boards & Superintendents (2) Buy, sell or lease property; (3) Borrow funds as needed; and (4) Pledge its assets as security; provided, however, that those assets are not leased or loaned by the state or local government. (b) The chartering authority may endorse the submission of the school credit bond application to the local taxing authority, if the project is a qualified project under § 54E(c)(2) or § 54F(d)(1) of the Internal Revenue Code of 1986, codified in 26 U.S.C. § 54E(c)(2) and 26 U.S.C. § 54F(d)(1), respectively, and the Tennessee State School Bond Authority Act, compiled in chapter 3, part 12 of this title, and with respect to § 54E(c)(2), the applicant can demonstrate that the applicant meets the ten percent (10%) matching funds requirement, as prescribed by § 54E(c)(2). 49-13-125. Immunity. The governing body of a charter school shall be subject to the same limits of liability as local school systems and shall provide insurance in accordance with § 49-13-107 for any liability exposure. 49-13-126. Promulgation of rules and regulations. (a) The state board of education is authorized to promulgate rules and regulations for the administration of this chapter. Proposed rules and regulations shall be submitted by the state board to the education committee of the senate and the education committee of the house of representatives for review and comment. (b) Notwithstanding any other provision of this chapter to the contrary, the commissioner shall establish rules and procedures for the authorization of charter schools by the achievement school district pursuant to this chapter. 49-13-127. Audits. (a) The comptroller of the treasury is authorized to audit any books and records, including internal school activity and cafeteria funds, of any charter school created under this chapter and by virtue of the statutes of this state when the audit is deemed necessary or appropriate by the comptroller of the treasury. The comptroller of the treasury shall have the full cooperation of officials of the charter school in the performance of the audit or audits.
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Duties & Powers of School Boards & Superintendents (b) (1) The governing body of the charter school shall cause an annual audit to be made of the accounts and records, including internal school activity and cafeteria funds, of their school. The audits may be prepared by certified public accountants or by the department of audit. (2) The audit shall be completed as soon as practical after June 30 of each year and a copy of the audit shall be furnished to the local board of education, the commissioner of education and the comptroller of the treasury. (3) A CMO may comply with subdivision (b)(1) by submitting one (1) audit for all the charter schools operated in Tennessee by the CMO; provided, that such audit includes all information required under this section for each school. (c) The comptroller of the treasury, through the department of audit, shall be responsible for ensuring that the audits are prepared in accordance with generally accepted auditing standards and determining if the audits meet minimum audit standards and regulations, which shall be prescribed by the comptroller of the treasury. No audit may be accepted as meeting the requirements of this section until the audit has been approved by the comptroller of the treasury. In the event the governing body fails or refuses to have the audit prepared, then the comptroller of the treasury may appoint a certified public accountant or direct the department of audit to prepare the audit. The cost of the audit shall be paid by the governing body. 49-13-129. Study and evaluation of chapter -- Appointment of task force. There is hereby created a task force to study and evaluate this chapter, to address, including, but not limited to, statutory inconsistencies and technical issues, fiscal issues, administrative compliance, identification and communication of charter schools’ best practices, the design and method of training for charter schools’ board members, facility needs, transportation, food services, communication between LEAs and charter schools’ boards, principals and administrative staff, employee benefits and charter school boards’ accountability. The task force shall include, at a minimum, two (2) representatives appointed by the superintendent of Memphis City Schools, two (2) charter school representatives appointed by the superintendent of Metropolitan Nashville Public Schools, two (2) representatives appointed by the superintendent of Hamilton County Schools, six (6) representatives appointed by the Tennessee Charter Schools Association, one (1) representative from the department of education and one (1) representative from the state board of education. The comptroller of the treasury shall be responsible for the coordination of the task force, including, but not limited to, facilitating communications among task force members. The comptroller shall report the task force’s findings and recommendations, including recommended legislation or rules, to the general assembly by February 2, 2011; provided, however, that a public charter school’s board shall issue an interim report of its most recent training to the LEA in which the public charter school is located no later than sixty (60) days after August 1, 2010.
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Duties & Powers of School Boards & Superintendents 49-13-131. Identification and implementation of system for dissemination of charter school most promising practices. The department of education, in collaboration and cooperation with charter schools, shall identify charter school most promising practices and implement a system for dissemination of such practices. The system shall include identification of those schools that could benefit most directly from innovative practices in charter schools. The system of dissemination shall allow LEAs across the state and traditional public schools to learn from charter schools’ most promising practices. 49-13-133. Student tracking system to track students who leave charter schools -- Report to general assembly. The department of education shall develop a student tracking system to be used to track students who leave charter schools. The system shall show when and why the student left the charter school. The system may be modeled on the current tracking system used to determine high school dropout rates. A charter school shall report the data required by the tracking system to the LEA. The department shall include such data in its annual report on charter schools required under § 49-13-120. 49-13-134. Establishment of non-charter public schools of innovation. LEAs in which there exist charter schools or in which charter schools are proposed to be created are strongly encouraged to establish non-charter public schools of innovation using federal funding that is available for such purpose. Such non-charter public schools shall be designed to function as a control group to enable the effectiveness of charter schools to be more adequately assessed through comparative evaluations. 49-13-135. Method of calculating all terms and costs related to lease, lease-purchase agreement, or other contract or agreement between LEA and charter school. An LEA shall establish a transparent and uniform method of calculating all terms and costs related to any lease, lease-purchase agreement, or other contract or agreement executed between the LEA and a charter school for the use of the LEA’s educational facilities. The LEA shall retain and make available for audit, by the department of education, all records and any supporting documentation related to the execution of such a lease or agreement.
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Duties & Powers of School Boards & Superintendents 49-13-136. Use of capital outlay funds -- Contracting for goods and services -- Underutilized and vacant properties. (a) Charter schools may use capital outlay funds for the following purposes: (1) Purchase, lease-purchase, or lease of real property; (2) Purchase, lease-purchase, or lease of school facilities; (3) Construction or renovation of school facilities, including renovation, rehabilitation, or alteration of existing facilities to comply with applicable codes and health and safety standards necessary to use the property or facility, or to make the property or facility useful; (4) Purchase, lease-purchase, or lease of any tangible or intangible property, including furniture, computers for a computer lab, science lab equipment, or other equipment if such purchase is necessary to use the property or facility, or to make the property or facility useful; and (5) Pay debt service on any transaction authorized under this subsection (a). (b) A public charter school may contract with the LEA or any third party for the provision of goods and services necessary to use the property or facility or to make the property or facility useful. (c) (1) No later than October 1, in any LEA in which one (1) or more charter schools operates, the LEA shall catalog each year all underutilized and vacant properties owned or operated by the LEA and all underutilized and vacant properties within any educational facility owned or operated by the LEA. The LEA shall submit a comprehensive listing of all such properties to the department of education and the comptroller of the treasury. The department shall make an LEA’s list available to any charter school operating in the LEA or to any sponsor seeking to establish a public charter school in the LEA. (2) An LEA having underutilized and vacant properties shall make the underutilized and vacant properties available for use by charter schools operating in the LEA. Any lease agreement executed between a charter school and an LEA shall not reflect any outstanding bonded debt on the underutilized or vacant property, except as agreed upon to reflect any necessary costs associated with the occupation or remodeling of the facility. (d) On or before October 11, 2011, the department shall adopt uniform guidelines to be used to determine what constitutes the irregular or intermittent use of property by an LEA. In any LEA in which one (1) or more charter schools operates, the LEA shall use such guidelines to catalog all underutilized and vacant prop-
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Duties & Powers of School Boards & Superintendents erties owned or operated by the LEA. (e) Nothing in this section is intended to frustrate an LEA’s ability to plan for the use of underutilized or vacant properties owned or operated by the LEA. In any LEA in which one (1) or more charter schools operates, the LEA shall submit each year its plans for the use of underutilized or vacant properties owned or operated by the LEA in its annual report to the department of education and the comptroller of the treasury. 49-13-137. Delay in opening of new public charter school. The sponsor of an approved charter application may delay, for a period not to exceed one (1) academic year, the initial opening of the public charter school. No later than ninety (90) days prior to the day the charter school plans to begin operation, the commissioner of education shall verify that no material changes have been made to the information and documents filed by the sponsor in accordance with the requirements prescribed in § 49-13-107. 49-13-138. Complying with requirements concerning open meetings. Each charter school shall comply with the requirements of title 8, chapter 44, part 1, concerning open meetings. 49-13-139. Maintenance of web site by public charter schools within an LEA. (a) If an LEA maintains a web site on which the LEA posts the following information, then each public charter school within the LEA shall maintain a web site with the same information: (1) Public notice of meetings of the governing board; (2) Agendas for the meetings of the governing board; (3) Policies adopted by the governing board; (4) Names and contact information of governing board members. (b) All information providing notice as required under § 8-44-103 shall be kept current by a public charter school maintaining a web site. (c) Until such time that a charter school is able to maintain a web site, the school may arrange to post the required information on the LEA web site or a related web site; provided, that the location of the informa-
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Duties & Powers of School Boards & Superintendents tion is readily made known to the public. 49-13-140. Records of public charter school open records to same extent as records of public schools operated by an LEA. All records of a public charter school shall be open for personal inspection and duplication by any citizen of this state to the same extent that records of public schools operated by an LEA are open. 49-13-141. LEAs sponsoring charter schools. Notwithstanding ยง 49-13-104(11) to the contrary, an LEA may be the sponsor of a charter school. If an LEA seeks to sponsor a charter school, then the state board of education shall serve as the chartering authority.
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Student Discipline and Rights
Student Discipline and Rights Student Discipline
I
t is a well established fact, both judicially and in practice, that those administering the schools have a basic duty and responsibility to establish a system of student discipline. It is within the purview of the board of education to establish any reasonable regulation that is necessary to maintain order within the educational system. However, the authority to establish a system of student discipline is not without limitations. Rules must be reasonable and have some legitimate education purpose; further, they may not be in conflict with a statute prescribed by the legislature. In addition, policies and regulations governing student conduct should be written in language easily understandable by reasonably intelligent students.
Corporal Punishment State law authorizes the use of corporal punishment by any teacher or school principal when necessary to “maintain discipline and order within the public schools,” subject to rules and regulations developed by the local board of education.
Student Suspension Due Process Requirements The issue of students’ rights in suspension procedures reached Due Process Procedures the United States Supreme Court in 1975. In Goss v. Lopez, the Supreme Court announced the minimum procedural • Notice of prohibited conduct requirements of the due process clause of the Fourteenth • Notice of the charges Amendment for students in public schools. The court held that • Explanation of evidence for short-term suspension—10 days or less—a student must be • Opportunity to explain given “oral or written notice of the charges against him and, if he • Special education students denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” It must be stressed that these minimum requirements apply only in cases where the suspension is for 10 days or less. The court stated: “Longer suspensions…for the remainder of the school term…may require more formal procedures.”
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Student Discipline and Rights The notice and hearing required under Goss should generally precede the removal of the student from school. The court, however, recognized that in cases where the student poses a danger to persons or property, or where he presents “an ongoing threat of disrupting the academic process,” such student may be immediately removed from school and the notice and hearing should be provided “as soon as practicable.”`
Statutes The due process requirements of the Fourteenth Amendment and Goss are codified in T.C.A. 49-6-3401 et seq. which sets out specific procedures that boards of education must follow in conducting student hearings. Any principal, assistant principal or principal-teacher of any public school in this state is authorized to suspend a pupil from attendance at such school, including its sponsored activities, or from riding a school bus, for good and sufficient reasons. Good and sufficient reasons for such suspension may include, but shall not be limited to, (1) willful and persistent violation of the rules to the school or truancy; (2) immoral or disreputable conduct or vulgar or profane language; (3) violence or threatened violence against the person of any personnel attending or assigned to any public school; (4) willful or malicious damage to real or personal property of the school, or the property of any person attending or assigned to the school; (5) inciting, advising, or counseling others to engage in any of the previously enumerated acts; (6) marking, defacing or destroying school property; (7) possession of a pistol, gun or firearm on school property; (8) possession of a dangerous knife on school property; (9) assaulting a principal or teacher with vulgar, obscene or threatening language; (10) unlawful use or possession of barbital or legend drugs; and (11) any other conduct prejudicial to good order or discipline in any public school; (12) off-campus criminal behavior which results in the student being legally charged with a felony and the student’s continued presence in school poses a danger to persons or property or disrupts the educational process.
In-School Suspension School administrators may assign students to in-school suspension if the Board of Education has developed an in-school suspension policy. Good and sufficient reasons for in-school suspension include, but are not limited to: (A) behavior which adversely affects the safety and well-being of other pupils; (B) behavior which disrupts a class or school sponsored activity; or (C) behavior prejudicial to good order and discipline occurring in class, during school-sponsored activities or on school campus. An in-school suspension policy must provide that students who are given an in-school suspension in excess of one day shall either attend special classes attended only by students guilty of misconduct or be placed in an isolated area appropriate for study.
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Student Discipline and Rights Students given in-school suspension shall be required to complete academic requirements. Students under in-school suspension shall be recorded as constituting a part of the public school attendance in the same manner as students who attend regular classes.
Terms of Suspension
Short-Term Suspensions
No principal, assistant principal or principal-teacher shall •Unconditional for specified period suspend any student until that student has been advised •Reasonable terms and conditions of the nature of his misconduct, questioned about it, and •May assign alternative program allowed to give an explanation, except in an emergency. •May be permitted to take final Furthermore, unless the suspension is an in-school exams suspension of one day or less duration, the principal shall •Appeals to board notify the parent or guardian and the superintendent of the suspension, the cause for the suspension and of the condition for readmission, which may include a meeting of the parent (or guardian), the student and the principal. This meeting may be requested by either the principal or the student or his parent/guardian. If the suspension is for more than five days, the principal shall develop and implement a plan for improving the student’s behavior. In the event the suspension occurs during the last 10 days of any term or semester, the student may be permitted to take final examinations or submit required work necessary to complete the course of instruction for that semester.
Long-Term Suspensions If a principal or assistant principal determines that an offense has been committed which would justify a suspension of more than 10 days, the principal may immediately suspend the student unconditionally for a specified period of time. The student and his/her parent or guardian shall immediately be given actual or written notice of the right to a hearing on the matter. The hearing request must be made within five (5) days of the suspension and the hearing must be held within ten (10) days after the beginning of the suspension. After the hearing, the board of education or the student disciplinary hearing authority may order removal of the suspension unconditionally or upon such terms as it deems reasonable; may assign the student to an alternative program or night school; or may suspend the student for a specified period of time.
Alternative Schools Students who are suspended or expelled from school may be assigned to alternative schools established by the local board of education. State law requires boards to maintain at least one alternative school to serve grades seven (7) through (12) who have been suspended or expelled from school. Two or more boards may jointly establish an alternative school or a board may, by mutual agreement, choose to send students to an alternative school located in another system. Boards may establish alternative schools for students in grades one (1) through six (6), but this is not required. Alternative school programs must be operated pursuant to state board rules and regulations and “instruction shall proceed as nearly as practicable in accordance
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Student Discipline and Rights with the instructional programs at the student’s home school.” Credits earned and coursework completed in an alternative school must be transferred and recorded in the home school. Attendance at an alternative school is voluntary unless the board has a policy making attendance compulsory for students assigned there. Students assigned to alternative schools continue to earn state education dollars and are counted as present for attendance purposes.
Student Disciplinary Hearing Authority Although state law authorizes the board of education to hold student disciplinary hearings, the better practice is to appoint a Student Disciplinary Hearing Authority (SDHA) to hear these matters. An SDHA must contain at least one licensed employee of the school system, but no more than the number of members of the local school board. SDHA members are appointed by the local board of education to hear and rule on all cases referred by the school principal. Decisions of the SDHA are binding unless appealed to and overruled by the local school board. SDHAs make the handling of student discipline more expedient. Tennessee law provides that a principal “may suspend any student unconditionally for a specified period of time or upon such terms and conditions as are deemed reasonable.” If the student is to be suspended for more than 10 days, the principal must immediately provide written or actual notice to the parent and student of the right to appeal the suspension to either the board or a disciplinary hearing authority. Few school boards meet every 10 days though, so without an SDHA, a suspended student must be allowed to return to school at the end of 10 days, unless the Board of Education calls a special meeting to hold a hearing within the statutory time frame. An SDHA, however, can easily meet within that time frame and impose a longer suspension, if appropriate. Through an SDHA, the board can ensure that qualified and impartial persons are appointed to handle student disciplinary issues. The school board can and should appoint the most qualified members of its staff to serve on SDHAs. The board can appoint a slate of employees who are eligible to serve on the SDHA. For each student hearing, three members who have no previous knowledge or involvement in the matter may be selected to hear the case. This ensures that students will receive a fair and objective hearing before unbiased individuals. The use of an SDHA eliminates or greatly reduces the number of student disciplinary cases heard by the board. When a school board creates a Student Disciplinary Hearing Authority, it vests in the SDHA the power to overturn, uphold, or increase the punishment or increase the severity of the discipline prescribed by the principal. Most cases will likely be resolved by the SDHA. However, upon appeal from either party, the board of education considers a written summary of the case and determines whether it will hold a hearing. If the board elects not to hold a hearing, it may affirm or overturn the SDHA decision based solely on the written record created below.
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Student Discipline and Rights Using an SDHA can reduce the number of students coming before the board under negative circumstances and leaves time for the board to recognize students for positive achievements.
How to create a SDHA To create a Student Disciplinary Hearing Authority, a local school board must adopt a written policy which sets out procedures under which the SHDA shall operate. Among the issues which should be addressed in school board policy regarding an SDHA are the following: Who will be appointed to serve on the Student Disciplinary Hearing Authority? There is no restriction as to who may serve on the Student Disciplinary Hearing Authority. The only legal requirement is that the SDHA must have at least one licensed employee of the school system in its membership. Further, the board may appoint principals, teachers, counselors, psychologists, or any other person the board deems qualified to serve. The board may even appoint one of its members to serve on the SDHA, although such a practice is generally not advisable. Emphasis should be placed on appointing individuals known to be fair and capable of remaining impartial. What length terms should SDHA members serve? The board may set terms for whatever length it chooses. Some boards have chosen to make annual appointments of SDHA members; others have chosen to appoint members up to three-year terms on a staggered basis so that some degree of continuity can be maintained when membership on the SDHA changes. How many members will the SDHA have? Legally, an SDHA must consist of at least one person, but no more than the number of members of the local school board. Most boards which have established an SDHA have elected to name the maximum number of members allowed by law. How many members will be required to hear each case? Policies dealing with SDHAs usually require three or five members to hear each case. A popular requirement is that at least one member of the hearing unit be a principal of a school not involved in the case. At least one board has determined that only one member of the SDHA is required to hear a case. Who determines which SDHA members will hear a particular case? Policy usually makes the superintendent responsible for designating which members of the SDHA shall hear the case. Such a policy seems practical and workable, but the board may designate any person to determine which members of the SDHA will hear a case. What timelines are to be followed? The law requires that student discipline hearings be held no later than 10 days after the beginning of the suspension, although this timeline may be extended if the parents agree. After
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Student Discipline and Rights the SDHA reaches a decision, either party (the student or the principal) has 5 days to appeal the decision to the board of education. If a timely appeal is not filed, the decision of the SDHA is final. Who is responsible for preparing a report of the hearing? The law requires that the SDHA make a written record of the proceedings, including a summary of the facts and the reasons supporting the decision. Policy should specify both the individual who is responsible for preparing the written report and what is to be done with the report when it is finished. Who provides notice of the hearing authority meeting? The law requires that a written notice of the time and place of the hearing be given to the parent and principal. Policy should specify what person will be responsible for satisfying this requirement. Usually this responsibility is assigned to the superintendent. What are the rights for an appeal? The Student Disciplinary Hearing Authority does not make recommendations to the school board. Rather, it acts independently, and the actions of the SDHA are binding unless either party appeals to the board of education in a timely manner. Even then, whether or not the appeal from the SDHA is heard by the board is solely a discretionary decision of the board. The action of the board is final.
Zero Tolerance State law requires that any student who brings to school or possesses a “firearm” or unlawfully possesses drugs on school grounds; or any student who commits aggravated assault on a school employee or SRO; or who transmits by an electronic device any communication containing a credible threat to cause bodily injury or death be expelled for at least one calendar year, which expulsion may be modified by the director of schools. The term “expelled” is defined as “removed from the pupil’s regular school program at the location where the violation occurred or removed from school attendance altogether, as determined by the school official.” In any student discipline matter, the SDHA generally must make two determinations: 1) did the student commit the offense with which he/she is charged? and 2) if so, what is the appropriate punishment? The same determination is made in a zero tolerance case, however, once an SDHA determines that a student has committed one of these “zero tolerance” offenses, the penalty is dictated by law – the SDHA must impose a one calendar year expulsion. Generally, the ultimate arbiter of a student discipline decision is the board of education, however the law vests sole discretion for modifying zero tolerance penalties in the director of schools. Thus, in this situation, there are two avenues for appeal.
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Student Discipline and Rights Appealing the Penalty Because only the director may modify a zero tolerance suspension, a student who wishes to appeal the one year suspension must plead his case to the director of schools. The director has sole authority to make modifications and the board is without authority to review that decision.
Appealing the Determination of Guilt Although only the director may modify the penalty in a zero tolerance case, the board retains its authority to review the SDHA’s determination of guilt. Presumably, a board of education could find that the student did not commit the offense with which he was charged and reinstate the student, impose a different penalty or remand the matter to the SDHA to determine the appropriate punishment. If, however, the board finds that the student did commit the zero tolerance offense, then it is without authority to modify the penalty.
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Student Discipline and Rights
Student Searches In recent years, incidents of student drug use and weapons possession have risen dramatically in the public schools. School officials are authorized to use various techniques to maintain safe campuses, including searching students for drugs, dangerous weapons and other contraband. School boards play a critical role in this process by adopting policies to ensure that school officials carry out legal searches.
The 4th Amendment The Fourth Amendment to the United States Constitution provides the right for persons to be secure against unreasonable searches and seizures. The U.S. Supreme Court in School Searches The U.S. Supreme Court first addressed the issue of student searches in the seminal case of New Jersey v. T.L.O., 469 U.S. 325 (1985). A person has a right “to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures . . .” —4th Amendment, U.S. Constitution In that case, a teacher at a New Jersey high school discovered a 14-year-old freshman and her friend smoking cigarettes in a school lavatory in violation of a school rule. The teacher took them to the principal’s office where they met with the assistant vice principal. In response to the assistant vice principal’s question, the girl denied that she had been smoking and claimed that she did not smoke at all. The assistant vice principal demanded to see her purse. Upon opening the purse, he found a pack of cigarettes and a package of cigarette rolling papers that are commonly associated with the use of marijuana. He then conducted a thorough search of the purse and found marijuana, a pipe, plastic bags, a substantial amount of money, an index card containing a list of students who owed the girl money, and two letters that implicated her in marijuana dealing. The state brought delinquency charges against the girl in juvenile court. She responded by arguing that the search violated her Fourth Amendment rights. The Supreme Court held that the Fourth Amendment’s prohibition on unreasonable searches and seizures did apply to searches conducted by public school officials and was not limited to searches carried out by law enforcement.
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Student Discipline and Rights In carrying out searches and other functions pursuant to disciplinary policies mandated by state statutes, the court held school officials act as representatives of the State, not merely as surrogates for the parents of students, and thus they cannot claim the parents’ immunity from the Fourth Amendment’s strictures. School children have legitimate expectations of privacy. They may find it necessary to carry with them a variety of legitimate, non contraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items by bringing them onto school grounds. But striking the balance between schoolchildren’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place requires some easing of the restrictions to which searches by public authorities are ordinarily subject. Thus, school officials need not obtain a warrant before searching a student who is under their authority. Moreover, school officials need not be held subject to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a student search by school officials depends simply on the reasonableness, under all the circumstances, of the search.
Reasonableness Determining the reasonableness of any search involves a determination of whether the search was justified at its inception and whether, as conducted, it was reasonably related in scope to the circumstances that justified the interference in the first place. Under ordinary circumstances the search of a student by a school official will be justified at its inception where there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. And such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in the light of the student’s age and sex and the nature of the infraction. The Court concluded that the search in T.L.O. was not unreasonable for Fourth Amendment purposes. First, the initial search for cigarettes was reasonable. The report to the Assistant Vice Principal that the girl had been smoking warranted a reasonable suspicion that she had cigarettes in her purse, and thus the search was justified at its inception. Second, the discovery of the rolling papers then gave rise to a reasonable suspicion that the girl was carrying marijuana as well as cigarettes in her purse, and this suspicion justified the further exploration that turned up more evidence of drug-related activities.
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Student Discipline and Rights To meet the requirements of reasonableness, most post T.L.O. cases indicate that searches must be based on objective facts. Factors that have been considered include: • • • • • • •
child’s age; child’s history; child’s record in school; prevalence and seriousness of the problem in the school; exigency to make the search without delay and further investigation; probative value and reliability of the information used as justification for the search; the school officials’ experience with the student and with the type of problem to which the search was directed; and the type of search.
In addition, most courts have required individualized suspicion. This means that searches by school officials must be based on facts that support a reasonable belief that the individual student is engaged in a prohibited activity or possesses contraband.
Tennessee Case The Sixth Circuit Court of Appeals (Tennessee’s federal appellate court) has also had an opportunity to address the issue of student searches in the 1987 case of Webb v. McCullough, 828 F.2d 1151 (6th Cir. 1987). In Webb, three high school students went on a trip with the school band to Hawaii. After receiving information from chaperones, the principal searched the girls’ room for alcohol and the unauthorized presence of boys. Beer and wine were found in the room next door. A male teenager had also been seen climbing from his balcony to that of the girls’ room and back. The girls were suspended and sent home from the trip. They contested the validity of the search. The 6th Circuit Court of Appeals determined that there was no violation of the Fourth Amendment. The court applied the T.L.O. reasonableness standard but acknowledged that one factor to be considered in determining whether the search was reasonable was the applicability of the in loco parentis doctrine. This is the doctrine that allows school officials to take certain actions against students because they are standing “in the place of the parent” - charged with a parent’s rights, duties and responsibilities. In this case, the courts determined, the use of in loco parentis authority was justified. “The search during a field trip in this case permits, indeed requires, the application of the in loco parentis doctrine. Parental permission was required for the field trip. These factors imply several significant conclusions. First, the trip did not involve mandated education as it was a voluntary undertaking on the part of…band members. Second, a greater range of activities occur during the extracurricular activities than during school...there may be a need for greater range of intervention by an administrator. Third, there are many more ways for a student to be injured or to transgress
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Student Discipline and Rights school rules or law during a non-curricular field trip...Finally, this was a search of the girls’ residence, albeit a temporary residence.”
Drug Testing Concern about increased drug use in public schools has prompted many local boards of education to adopt policies authorizing drug testing of students. Individualized Suspicion It is well-settled that state compelled collection and testing of urine (a.k.a. “urinalysis”) is a search under the Fourth Amendment. National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). Thus, before a student may be compelled to submit to urinalysis based on individualized suspicion, school officials must meet the “reasonableness” standard articulated by the Supreme Court in New Jersey v. T.L.O. First, school officials must be able to demonstrate that the search is reasonable at inception. In other words, there must be some reason to believe that this student is under the influence of an illicit substance. Second, the search must be reasonable in scope. In the context of urinalysis, this means that the monitoring and collection process must be minimally intrusive. In addition, Tennessee law provides more specific requirements for drug testing of students, including a board policy, notice to students at the time of enrollment that they may be subject to drug testing, testing performed by an accredited laboratory, a requirement that the board bear the testing costs, and that school employees be provided in-service training on how to identify the signs and symptoms of drug use. T.C.A. 49-6-4213. Random Drug Testing The issue that has created the most controversy – and prompted the most litigation – is mandatory, suspicionless drug testing of students. The question was first addressed by the U.S. Supreme Court in the case of Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995), in which the court upheld a program that required students to submit to random drug testing as a condition for participation in interscholastic sports. In upholding the program, the Court noted several factors: 1. Student athletes – who are subject to medical examinations and who dress and shower in communal locker rooms – have a reduced expectation of privacy. 2. Student athletes voluntarily submit to a higher degree of regulation than other students by choosing to participate in sports. 3. Student athletes under the influence of drugs may pose a physical threat to themselves or other athletes. 4. Students who tested positive were not subject to disciplinary measures or to criminal charges, but were offered counseling instead.
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Student Discipline and Rights 5. The school district was able to demonstrate a serious drug problem within the community, that student athletes were viewed as role models and were widely considered leaders of the drug culture. 6. The collection process set out in the policy was minimally intrusive. After Veronia, some school systems sought to expand their drug testing programs beyond student athletes. Programs requiring random testing of students suspended from school, as a condition for driving to school and as a condition for participating in extracurricular activities met with mixed results among the federal appellate courts. See Willis v. Anderson Community Sch. Corp., 158 F.3d 415 (7th Cir. 1998) (drug testing of students suspended from school for fighting held unconstitutional); Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052 (7th Cir. 2000) (random testing as a condition for driving and parking on school property upheld); and Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1998) (random testing as a condition for participation in any extracurricular activity upheld). In 2002, the U.S. Supreme Court issued a decision in the case of Board of Education of Independent School District No. 92 of Pottawatomie v. Earls, 122 S.Ct. 2559 and thereby resolved many of the questions left unanswered by the Vernonia decision. In that case, the school district adopted a policy that required all students participating in competitive extracurricular activities to submit to random drug testing. Students who wished to participate in activities such as sports, academic competitions, Future Farmers of America, Future Homemakers of America, band, choir, pom-pom, cheerleading, etc. were required to submit to drug testing before participating in the activity, to random drug testing during the activity and to testing based on reasonable suspicion at any time. The urinalysis detected only illegal drugs, such as amphetamines, marijuana, cocaine, etc and the only consequence of a positive test was to limit the student’s privilege of participating in the activity. Two students brought suit challenging the constitutionality of the policy. Specifically, the students claimed the policy violated their right to be free from unreasonable search and seizure and that the policy did not satisfy the test set out in Vernonia since the school had not demonstrated that a drug problem existed about students participating in extracurricular activities. The lower court granted summary judgment in favor of the school district, finding that “special needs” exist in the public school context to justify this type of drug testing policy and that the policy was an effective means of discouraging drug use among students. The Tenth Circuit Court of Appeals reversed, concluding that the district was required to demonstrate “that there is some identifiable drug abuse problem among a sufficient number of those subject to testing, such that testing that group will actually redress its drug problem.” Because the school district failed to make such a showing, the court found the policy unconstitutional. The Supreme Court granted certiorari and in a 5-4 decision, concluded that the policy did not violate the Fourth Amendment rights of students.
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Student Discipline and Rights First, the majority concluded that the privacy rights of a student in public school is limited because the State is responsible for maintaining discipline, health and safety. The Court rejected the plaintiffs’ assertion that students who participate in non-athletic activities are not subject to regular physicals and communal undress and therefore enjoy a greater expectation of privacy than the student athletes at issue in Vernonia. The Court explained that its reasoning in Vernonia was based primarily on the school’s custodial responsibility and authority, not on the particular privacy expectations of student athletes. Furthermore, students in the Pottawatomie School District voluntarily subject themselves to a myriad of regulations in order to participate in extracurricular activities, and therefore have a limited expectation of privacy. Second, the Court concluded that the invasion of student privacy under the policy was negligible. Specifically, the method of urine collection under the policy is minimally intrusive and the test results are kept strictly confidential. Moreover, the test results are not shared with law enforcement nor does a positive drug test result in any disciplinary consequence. The only consequence for a positive result is limiting the student’s ability to participate in extracurricular activities. Next, the Court addressed the nature and immediacy of the school district’s concerns and the effectiveness of the policy in addressing those concerns. The Court recognized the existence of a “nationwide drug epidemic” and the importance of preventing drug use by children. Although “a demonstrated problem of drug abuse… [is] not in all cases necessary to the validity of a testing regime…” the Court noted that, in this case, the school district was able to present specific evidence of drug use in its schools. In Vernonia, the Court cited the risk of physical harm for student athletes who participate in contact sports while under the influence of drugs as justification for the policy. In Earls, the Court de-emphasized this aspect, focusing instead on the health risks posed by drug use to all children. Finally, the Court concluded that drug testing students as a condition for participating in extra curricular activities was a reasonably effective means of addressing district concerns about drug use among students.
Vehicle and Locker Searches When individual circumstances dictate it, a principal may order that the vehicles, lockers and other containers of both students and visitors be searched. Individual circumstances requiring a search may include: • • • •
incidents on school property involving dangerous weapons or drugs; information received from law enforcement authorities indicating a pattern of drug dealing or use; any assault or attempted assault on school property with dangerous weapons; any other actions or incidents which give rise to reasonable suspicion that drugs or dangerous weapons are held on school property.
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Student Discipline and Rights Person Searches T.C.A. 49-6-4205 allows the physical search of a student or a student’s pocket or purse if such action is reasonable to the principal. All of the following must be satisfied in order to meet the reasonableness standard: • • • • •
a particular student has violated school policy; the search will yield evidence of the violation of school policy or will lead to the disclosure of a dangerous weapon, drug paraphernalia or drug; the search is in pursuit of legitimate interests of the school in maintaining order, discipline, safety, supervision and education of students; the search is not conducted for the sole purpose of discovering evidence to be used in a criminal prosecution; and the search shall be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student, as well as the nature of the infraction alleged to have been committed.
Strip Searches Although strip searching a student may be appropriate under very limited circumstances, a school administrator who undertakes such an intrusive search risks legal action. As a general rule, strip searches will be justified only where the suspected infraction is a serious one, which poses an immediate threat to the safety of students, such as possession of drugs or weapons. Metal Detectors and Drug Dogs According to Tennessee statutes, both metal (hand-held and stationary) detectors and drug dogs may be used to facilitate a search when found to be necessary. Drug dogs may only be used to pinpoint areas that need to be searched and should never come into direct contact with persons being searched and should not touch articles in lockers. T.C. A. 49-6-4207; 49-6-4208. Drug Testing T.C.A. 49-6-4213 authorizes drug testing of students in accordance with local policies where a principal has reason to believe that a particular student has used or is under the influenced of drugs. Drug testing under this statute requires individualized suspicion. Students must be notified in writing at the beginning of each school year or at the time of enrollment that they may be subject to testing for drugs and alcohol during the school year. Principals are authorized to order drug tests for individual students when there is a reasonable cause to believe that: •
the search shall be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student, as well as the nature of the infraction alleged to have been committed.
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Student Discipline and Rights Tennessee Code also allows an LEA to adopt a policy permitting random drug testing of students in voluntary extracurricular activities prior to a student participating in an extracurricular activity, the LEA shall notify the parents and guardians of any such student that the student may be subjected to random drug testing. A parent or guardian of a student participating in a volunteer extracurricular activity shall provide written consent for random drug testing prior to the student participating in the voluntary extracurricular activity. The General Assembly approved random drug testing under strict guidelines which include • • • • • • • •
The LEA shall pay the cost In-service training of principals and teachers will be conducted in signs and symptoms of student drug use and abuse Strict procedures regarding how laboratories handle specimens and test results All specimens testing negative on the initial screening test or negative on the confirmatory test shall be reported as negative. If a student is tested and the results of the test are negative, all records shall be expunged from all records, including school records. If a student test positive, all records of the test, shall be confidential No student who is tested under a random drug testing program and who tests positive shall be suspended or expelled from school solely as the result of the positive test. The principal or school counselor of the school in which a student who tests positive in a drug testing program is enrolled shall provide referral information to the student and to the student’s parents or guardian. The information shall include information on inpatient, outpatient and community-based drug and alcohol treatment programs.
Employee Drug Testing In Smith County Education Association v. Smith County Board of Education, 2011 U.S. Dist. LEXIS 14681, a federal district court concluded that a compelled urine test from a governmental employee is a search for purposes of the unreasonable searches and seizures clause of the Fourth Amendment. A notable exception to the general rule and its application by the Sixth Circuit is central to this case. The Supreme Court has held that suspicionless drug testing can be constitutional when it “serves special government needs.” One such special need may exist when the employee holds a “safety sensitive” position, meaning that the employee’s duties are “so fraught with . . . risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” The Sixth Circuit applied the foregoing jurisprudence to a drug policy implemented by a Tennessee school board in Knox County Educ. Ass’n v. Knox County Bd. of Educ., 158 F.3d 361 (6th Cir. 1998). Because that decision serves as a backdrop for analysis and is controlling law on certain issues in this case, the
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Student Discipline and Rights Court addressed it in some detail. In Knox County, teachers and other school employees challenged, on Fourth Amendment grounds, a 1994 school board policy which provided for (1) suspicionless drug and alcohol testing of employees applying for “safety sensitive positions,” and (2) reasonable suspicion drug and alcohol testing for all employees. The trial court found the policy unconstitutional insofar as it provided for suspicionless drug testing, but constitutional insofar as it allowed for reasonable suspicion drug testing. The Sixth Circuit reversed the district court. In doing so, the Sixth Circuit began by noting that while a search generally must be based upon an individualized suspicion of wrongdoing, a suspicionless drug test can be constitutional where the government’s or public’s interest in testing outweighs the individual’s privacy interest. As for the public interest in testing, the Sixth Circuit noted that, just as in this case, there was “little, if any, evidence of a pronounced drug or alcohol abuse problem among [the county’s] teachers or other professional employees.” However, the court went on to write that “a pronounced drug problem is not a sine qua non for a constitutional suspicionless drug program, “that a teacher’s role was “unique,” and that this uniqueness was “great enough to overcome the presumption against suspicionless testing.” According to the Sixth Circuit, the “unique” role of teachers is codified in Tennessee because teachers serve “in an in loco parentis capacity and are charged with the responsibility ‘to secure order and to protect students from harm while in their custody.’” Because teachers serve in an in loco parentis capacity while in charge of students, the Sixth Circuit in Knox County believed that the potential for harm through illegal drug use was heightened. In this regard, the court concluded that teachers are in “safety sensitive” positions. Finally, the Sixth Circuit in Knox County considered the harm to the teachers in suspicionless drug testing but discounted that harm because, as a whole, the regime was “fairly circumscribed and unintrusive.” The Court speaks of “school teachers,” and teachers in Tennessee, not just Knox County teachers. In this regard, the Sixth Circuit observation that Tenn. Code Ann. 46-6-4203(b) dictates that teachers stand in an in loco parentis capacity to their students applies as equally to the teachers in Smith County as it does to their counter-parts in Knox County, just as the other state regulations governing teachers and referenced in the Knox County case apply to all teachers in this state. Further, the language about the role of teachers vis-a-vis their occupying a “safety-sensitive” position is applicable to all public school teachers in this state. The Court found that deterring illegal drug use, including the unlawful use of prescription drugs, is a reasonable and appropriate objective and interest of the School Board and is supported by the record in this case. However, a policy enacted to address unlawful drug use, whether illegal or prescription drugs, must give constitutionally adequate notice and must be implemented with due regard for the privacy rights of teachers to be “reasonable” for purposes of the Fourth Amendment.
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Student Discipline and Rights Having fully considered the record, the Court finds that the School Board has demonstrated a need for a drug policy and the need for random drug testing, but that the policy is constitutionally flawed by its lack of notice of what drugs are the subject of testing and how the policy is to be implemented. In so holding, the Court is not finding that the random drug testing of Smith County teachers is unconstitutional per se. If the unconstitutional aspects of the 2007 Policy and its implementation are cured, the Court is of the opinion that the random drug testing will comply with the Fourth Amendment.
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Student Discipline and Rights
Legal Reference Materials
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Student Discipline and Rights
Student Suspension/Zero Tolerance True OR False: ____ 1.
All students placed on suspension are entitled to a full hearing before the board of education or a disciplinary hearing authority.
____ 2.
A student found to have been in unauthorized possession of a firearm on school grounds is subject to “zero tolerance” and must be expelled for the remainder of the academic year. However, this expulsion may be modified on a case-by-case basis.
____ 3.
A copy of the student discipline code must be posted in every school.
____ 4.
If a student is suspended for a period longer than 10 days, the principal must give written or actual notice to the parent or guardian of the right to appeal the decision.
____ 5.
A local education agency may not suspend a student for off-campus conduct unless the conduct was at a school-related event or was on a school bus.
____ 6.
Except in an emergency, no student shall be suspended without being advised of the nature of his/her misbehavior, questioned about it, and allowed to explain his/her actions.
____ 7.
If a student enrolls in your LEA and subsequently is found to have been expelled from another school system, the board may then dismiss the student.
____ 8.
Tennessee law requires “zero tolerance” for students committing assault against a teacher or other school employee and such student must be expelled for one calendar year. However, this may be modified on a case-by-case basis.
____ 9.
After a discipline code has been adopted by the board, all teachers, administrative staff, guidance counselors and parents must be given copies of the code.
____ 10.
Unlawful possession of narcotic or stimulant drugs by a student on school grounds requires “zero tolerance” and the student must be expelled for one calendar year. However, this expulsion may be modified on a case-by-case basis.
BONUS QUESTION: ____
All students who have been lawfully suspended/expelled have the right to attend alternative school.
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Student Discipline and Rights
STUDENT DISCIPLINE CASES 1. A first-grade student was paddled by a physical education teacher for misbehaving in class. An adult witness testified “the teacher administered the corporal punishment in my presence in accordance with board policies; the two licks were not excessive nor were they of a nature that would have inflicted any harm upon the student.” When her son returned home that day, the mother observed bruises on both buttocks. She took him to a doctor the following day. Mom brought suit against the teacher, the principal, the superintendent and the school district seeking money damages. Can she recover money damages from any of these defendants? 2. A student is found to have a knife in the glove compartment of his car in violation of the school’s zero tolerance policy. The student admits that he and his friends were carrying the knife the previous day –Sunday - because they were concerned about threats from another group of boys. He contends, however, that he did not know the knife was still in the car when he came onto school grounds because he believe d that another student had already removed the knife from the car. After a student disciplinary hearing, the student is expelled for one year pursuant to the school district’s zero tolerance policy on knives. The student appeals the decision to the board of education which upholds the expulsion. Was it proper to expel the student even if he did not know he was violating school rules? 3. The Graceland County School Board has developed a policy which requires students to consent to random, suspicionless drug testing as a condition for participating in extracurricular activities, including athletics, music groups, and academic clubs and competitions. Students who refuse to sign the consent form are denied participation. Students who sign the form but refuse to take a drug test are presumed to be under the influence. The policy also requires students who drive to school to consent to random drug testing as well. Is this policy permissible under Vernonia?
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Student Discipline and Rights
STUDENT DISCIPLINE CASES 4. Two administrators observed the exchange of money and plastic bags on school grounds between a group of students. The students were brought to the office en masse and the police were summoned. Several of the students were questioned and released before the police arrived. School officials also requested several students to empty their pockets before the police arrived. No incriminating evidence was found on David Tarter, however the principal detected an odor of marijuana on David’s breath. The principal then took David to a small room near the office and, with a female administrator standing outside the door, asked David to remove his jacket, boots and shirt. No incriminating evidence was found. When asked to remove his pants, David refused. The search was discontinued and the police were summoned. In the meantime, David’s parents arrived and took their son off school grounds without objection or interference from school officials. After a hearing, David was expelled for the balance of the semester. David and his parents sued the school district, alleging that the search violated David’s Fourth Amendment right to be free from unreasonable search and seizure. Was this search legal? 5. Your high school swimming coach believes that one of his swimmers is pregnant. Instead of confronting the student personally, he convinces two of her teammates to persuade her to take a pregnancy test. The student agrees to take the pregnancy test because her teammates have advised her that the coach will remove her from the team if she refuses to take the test. Six and a half months later, the student has a baby and sues the coach, alleging that he compelled her to take a pregnancy test in violation of her privacy rights. Were the coach’s actions legal?
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Student Discipline and Rights
Behavior And Discipline Codes 49-6-4012. Formulation and administration of behavior and discipline codes. (a) The governing body of each LEA shall be responsible for formulating a code of acceptable behavior and discipline to apply to the students in each school operated by the LEA. (b) The director of schools or other administrative head of the LEA shall be responsible for overall implementation and supervision, and each school principal shall be responsible for administration and implementation within that school. (c) In formulating the behavior and discipline codes, the governing body of each LEA shall seek recommendations from parents, employees, law enforcement personnel and youth-related agencies in the community. 49-6-4216. School policies and procedures Contents Zero tolerance policy Notice to students and parents. (a) Each local and county board of education shall file annually with the commissioner of education written policies and procedures developed and adopted by the board: (1) To ensure safe and secure learning environments free of drugs, drug paraphernalia, violence and dangerous weapons; and (2) To impose swift, certain and severe disciplinary sanctions on any student: (A) Who brings a drug, drug paraphernalia or a dangerous weapon onto a school bus, onto school property or to any school event or activity; or (B) Who, while on a school bus, on school property or while attending any school event or activity: (i) Is under the influence of a drug; (ii) Possesses a drug, drug paraphernalia or dangerous weapon; or (iii) Assaults or threatens to assault a teacher, student or other person. (b) (1) It is the legislative intent that any rule or policy designated as a zero tolerance policy means that vio-
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Student Discipline and Rights lations of that rule or policy will not be tolerated, and that violators will receive certain, swift and reasoned punishment. Reasoned punishment may include a spectrum of disciplinary measures designed to correct student misbehavior and promote student respect and compliance with codes of conduct and board policies. A zero tolerance violation shall not necessarily result in a presumptive one (1) calendar year expulsion except for those types of student misconduct set forth in 49-6-3401(g). It is the legislative intent that the local school boards shall retain responsibility for development of disciplinary policies and student codes of conduct including assurances that students are afforded fair due process procedures. Nothing in this section shall be construed to prohibit assignment to an alternative school for those students under suspension or expulsion including students engaging in misconduct set forth in 49-6-3401(g). (2) Nothing in this section shall be construed to alter, diminish or supersede the director’s authority to modify expulsion on a case-by-case basis under 49-6-3401(g). (c) At the beginning of fall classes each school year, each local and county board of education shall provide students and their parents with written notification of the policies and procedures. Additionally, each school shall conspicuously post a summary of the policies and procedures within each school. (d) (1) The state board of education shall develop a standard form for collection of statistical information relative to zero tolerance violations in local school systems. In developing the form, the state board of education shall consult the local school boards, the Tennessee school board association, the office of education accountability and the department of education. (2) The form shall include, but shall not be limited to, grade level, age, gender, race, offense, disposition of each zero tolerance violation and any modification in penalty. (3) The form shall be completed annually by the director of schools of each school system or the director’s designee, and copies of the form shall be filed with the department of education and the state board of education by July 1 of each school year. (4) The office of education accountability shall analyze the forms collected by the department of education and shall annually report the results specified in subdivision (d)(2) to the education oversight committee, the general assembly, the governor and the state board of education. (e) The department of education shall track all students expelled from their home school and report on their progress, and include such information in the report required to be filed under subdivision (d)(4).
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Student Discipline and Rights 49-6-4213. Testing of students for drugs — Referral information and assistance for students testing positive. (a) (1) A student may be subject to testing for the presence of drugs in the student’s body in accordance with this section and the policy of the LEA if there are reasonable indications to the principal that such student may have used or be under the influence of drugs. The need for testing may be brought to the attention of the principal through a search authorized by § 49-6-4204 or § 49-6-4205, observed or reported use of drugs by the student on school property, or other reasonable information received from a teacher, staff member or other student. All of the following standards of reasonableness shall be met: (A) A particular student has violated school policy; (B) The test will yield evidence of the violation of school policy or will establish that a student either was impaired due to drug use or did not use drugs; (C) The test is in pursuit of legitimate interests of the school in maintaining order, discipline, safety, supervision and education of students; (D) The test is not conducted for the sole purpose of discovering evidence to be used in a criminal prosecution; and (E) Tests shall be conducted in the presence of a witness. Persons who shall act as witnesses shall be designated in the policy of the local board of education. (2) A student participating in voluntary extracurricular activities may be subject to random drug testing in the absence of individualized reasonable suspicion provided the standards set forth in subdivisions (a)(1) (B)-(E) are met. (b) As used in this section and § 49-6-4203, “drugs” means: (1) Any scheduled drug as specified in §§ 39-17-405 — 39-17-416; and (2) Alcohol. (c) Before a drug testing program is implemented in any LEA, the local board of education in that LEA shall establish policies, procedures and guidelines to implement this section within that LEA. The state board of education shall prepare a model policy, procedure and guidelines that may be adopted by local boards of education.
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Student Discipline and Rights (d) Tests shall be conducted by properly trained persons in circumstances that ensure the integrity, validity and accuracy of the test results but are minimally intrusive and provide maximum privacy to the tested student. All tests shall be performed by an accredited laboratory. Specimens confirmed as positive shall be retained for at least ten (10) days for possible retesting or reanalysis. (e) Students shall be advised in writing at the time of their enrollment that they are subject to testing. Notice to each student shall include grounds for testing, the procedures that will be followed and possible penalties. Students shall be advised of their right to refuse to undergo drug testing and the consequences of refusal. (f ) (1) A parent of the student or a person legally responsible for the student shall be notified before any drug test is administered to the student. (2) If an LEA adopts a policy permitting random drug testing of students in voluntary extracurricular activities, then, prior to a student participating in an extracurricular activity, the LEA shall notify the parents and guardians of any such student that the student may be subjected to random drug testing. A parent or guardian of a student participating in a volunteer extracurricular activity shall provide written consent for random drug testing prior to the student participating in the voluntary extracurricular activity. (g) The LEA shall pay the cost of any testing required under this section. (h) In any school where LEA or school policy allows tests provided for by this section, in-service training of principals and teachers will be conducted in signs and symptoms of student drug use and abuse and in the school policy for handling of these students. The department of mental health shall cause qualified trainers to be available to the schools to conduct this training. (i) Test reports from laboratories shall include the specimen number assigned by the submitting LEA, the drug testing laboratory accession number and results of the drug tests. Certified copies of all analytical results shall be available from the laboratory when requested by the LEA or the parents of the student. The aboratory shall not be permitted to provide testing results verbally by telephone. (j) (1) All specimens testing negative on the initial screening test or negative on the confirmatory test shall be reported as negative. (2) If a student is tested and the results of the test are negative, all records of the test, request for a test or indication a student has been tested shall be expunged from all records, including school records. (k) (1) If a student is tested in a drug testing program and the results of the test are positive, all records of the test, request for a test or indication a student has been tested shall be confidential student records in ac-
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Student Discipline and Rights cordance with § 10-7-504(a)(4)(A). (2) No student who is tested under a random drug testing program and who tests positive shall be suspended or expelled from school solely as the result of the positive test. (3) The principal or school counselor of the school in which a student who tests positive in a drug testing program is enrolled shall provide referral information to the student and to the student’s parents or guardian. The information shall include information on inpatient, outpatient and community-based drug and alcohol treatment programs.
(l) Each LEA participating in the drug testing of students authorized in subsection (a) of this section shall promulgate policies and procedures to ensure that those students testing positive receive the assistance needed. The assistance shall include an assessment to determine the severity of the student’s alcohol and drug problem and a recommendation for referral to intervention or treatment resources as appropriate. Nothing in this section shall be construed to require LEAs to administer drug tests to students. Any system that elects to participate shall supply the testing materials and any subsequent counseling within existing local funds. (m) Malicious use of authority granted by this section may be grounds for dismissal of the person so acting.
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Student Discipline and Rights
The First Amendment in Schools The First Amendment of the United States Constitution provides in relevant part that: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech... The Amendment is commonly broken down into three clauses: 1) the Establishment Clause which prohibits government from establishing, sponsoring or endorsing religion; 2) the Free Exercise Clause which grants individuals the right of religious freedom; and 3) the Free Speech Clause which guarantees individuals the right to speak and to receive information and generally prohibits the government from discriminating on the basis of individual speech. Although by its terms the First Amendment refers only to Congress, it is wellsettled that the Amendment applies to the actions of any state or federal governmental entity, including local boards of public education.
Free Exercise Clause/Establishment Clause Under the free exercise clause, the freedom to believe is absolute, but the freedom to act on those beliefs can be overridden by other governmental interests, including concerns under the establishment clause. The establishment clause prohibits government from “establishing religion.” In order to withstand constitutional scrutiny, governmental action must have a secular purpose, must not have the primary effect of advancing or inhibiting religion, and must not cause excessive entanglement between religion and government. This is known as the “Lemon test,” set out by the U.S. Supreme Court in the 1971 case of Lemon v. Kurtzman, 402 U.S. 296 (1971). State action which is perceived, under all the surrounding circumstances, as endorsing or disapproving of religion will not be upheld by the courts. Clearly, tension exists between the free exercise and establishment clauses, but both constitutional guarantees are based on the principles of separation of church and state, and state neutrality in matters concerning religion. The principles of separation and neutrality guarantee the individual right to liberty of conscience, to keep the state from interfering in religious life, to prevent the trivialization of religion which can occur with attachment to organs of government and guarantee that essentially religious issues do not become the occasion for battle in the political arena.
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Student Discipline and Rights While the Constitution attempts to create a wall of separation between church and state, in interpreting those clauses, the courts have stressed that the clauses demand state neutrality, not hostility, toward religion. There have been a wide range of challenges to statutes and school board policies alleging violations of the establishment clause. Prayer in school, prayer at student activities, government aid to religious schools, and moment of silence laws have all resulted in court challenges. Prayer in School Prayer or the reading of Bible verses in school is not a new phenomenon. At the time of the drafting of the Constitution, public schools were virtually nonexistent and prayer and Bible study were an inherent part of sectarian sponsored education. In the early 1960’s the United States Supreme Court addressed the issue of the constitutionality of daily devotional exercises in the public school setting in two separate cases, Engel v. Vitale, 370 U.S. 421 (1962) and Abington School District v. Schempp, 374 U.S. 203 (1963). At issue in Engel was a school board policy that required teachers to lead students in the daily recitation of an officially composed prayer. The prayer was short, only 22 words long, and nondenominational. Students not wishing to participate in the exercise could remain silent or be excused from the room. In holding that the practice violated the establishment clause, Justice Black, writing for a majority of the court, stated, “The constitutional prohibition against law respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.” A year later in Abington, the Court considered statutes in Pennsylvania and Maryland which required the reading of verses from the Bible, without comment, and the recitation of the Lord’s Prayer at the opening of each school day. Although students could absent themselves from the classroom if they did not wish to participate, the activity was part of the regular curricular program and under the supervision of a classroom teacher. In striking down the laws as unconstitutional, the Supreme Court concluded that although the secular purposes of “the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature” were advanced, the exercises were essentially religious in nature. That the exercises were part of the regular curricular activity of students who were required by law to attend school and held in school buildings under the direct supervision of school employees weighed heavily in finding a violation of the establishment clause.
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Student Discipline and Rights Two arguments frequently put forth in prayer cases were flatly rejected by the Supreme Court in Schempp. First, the fact that a student could absent himself from the exercise did not, in the eyes of the court, alleviate the establishment problem. Second, even if the exercise could be characterized as a minor encroachment, taking only a short period of each day, the court concluded any encroachment is constitutionally impermissible.
Moment of Silence The U.S. Supreme Court has decided a number of religion cases since Schempp and Abington. In 1985, the Court struck down an Alabama statute that mandated a moment of silence at the beginning of each school day “for meditation or voluntary prayer.” Wallace v. Jaffree, 472 U.S. 38 (1985). Central to the Court’s decision in Wallace was the fact that the statute originally permitted only “meditation” but was amended to include prayer. Further, the legislative history of the bill and the testimony of the bill’s sponsor indicated its sole purpose was to return prayer to the public schools – an impermissible endorsement of religion. Although the Court struck down the Alabama law, it made clear that not all moment of silence laws will necessarily be unconstitutional and, in fact, several lower courts since Wallace have upheld such statutes. See Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464 (11th Cir. 1997)(Georgia law); Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001)(Virginia law). Tennessee has a moment of silence law that has never been challenged in court. It states: 49-6-1004. Period of silence or prayer. — (a) In order for all students and teachers to prepare themselves for the activities of the day, a period of silence of approximately one (1) minute in duration shall be maintained in each grade in public schools at the beginning of each school day. At the opening of the first class each day, it is the responsibility of each teacher in charge of each class to call the students to order and announce that a moment of silence is to be observed. The teacher shall not indicate or suggest to the students any action to be taken by them during this time, but shall maintain silence for the full time. At the end of this time, the teacher shall indicate resumption of the class in an appropriate fashion, and may at that time make school announcements or conduct any other class business before commencing instruction. (b) It is lawful for any teacher in any of the schools of the state which are supported, in whole or in part, by the public funds of the state, to permit the voluntary participation by students or others in prayer. Nothing contained in this section shall authorize any teacher or other school authority to prescribe the form or content of any prayer.
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Student Discipline and Rights The primary question in determining the constitutionality of statutes and policies regarding religion is generally whether the actual purpose in enacting the policy was to endorse or disapprove of religion. However, determining the purpose behind a law or a policy is not always easy. The language itself will be important in determining the constitutionality of the policy or law. Inclusion of the word “prayer” may suggest a religious purpose, but it also may suggest a type of religious accommodation which is entirely permissible. A Massachusetts statute which included a reference to prayer has been upheld, while a New Jersey statute which included no reference to any religious practice was struck down. Beyond the language of the statute or policy, courts will also look to the legislative history. Board minutes concerning the enactment of policies may provide insight as to the reason for a particular policy. Statements indicating that the policy is an attempt to return prayer to school or to favor prayer over other activity during the moment will almost certainly render the policy unconstitutional. Educational reasons for the moment of silence must form the basis for the enactment of the policy, and should be clearly delineated in the policy itself or in the minutes of the board. Board policies in this area should strive to ensure that teachers who will supervise the moment of silence do not encourage prayer during the period. Even if the policy is constitutional on its face, the policy could be struck down as applied if in practice it is used to encourage religious activity.
Prayer Before Football Games It is well-settled that school districts may not require, sponsor or endorse religion in the school setting. The question of prayer at extracurricular activities, particularly sporting events, has also been the subject of a long line of court cases, culminating with the U.S. Supreme Court’s recent decision in Santa Fe Independent School District v. Doe, 120 S.Ct. 2266 (2000). In Santa Fe, the Supreme Court struck down a school policy that purported to give students control over prayer before football games. In that case, the school district had a long-standing, unwritten policy of allowing students to read prayers at football games. The school district retained control over the content of the prayers and speakers. After a student filed an action challenging the constitutionality of the district’s policy, the district revised the policy to provide for prayers selected (by majority vote) and given by students but placed no restrictions on the content of the prayers. The district also developed an alternative policy that would require all prayers to be nonsectarian and nonproselytizing, which policy would automatically go into effect only if the first policy was challenged. The Supreme Court, in a 6-3 decision, held that the school district’s policy of permitting student-led, student-initiated prayer at football games violated the Establishment Clause. The Court believed that the policy contained sham secular purposes designed to continue the district’s “long-sanctioned practice of prayer before football games” by disguising it as private speech. The Court rejected the district’s argument that the policy was not coercive because students at football games are not a captive audience. The Court
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Student Discipline and Rights observed that, although football games are generally voluntary extracurricular activities, attendance at games is mandatory for band members, cheerleaders, and players.
Note that some states, including Tennessee, have enacted legislation authorizing non-sectarian, nonproselytizing voluntary student prayer, T.C.A. 49-6-2901 et. seq. At the time Tennessee’s legislation was being considered, the Attorney General issued an opinion that the bill was unconstitutional as violating the establishment clause. Although the statute took effect in July, 1997, it has yet to be litigated. One Tennessee high school principal filed a lawsuit asking the federal court to rule on the validity of the statute. The federal court refused to rule on the matter saying that no case or controversy existed and sent the case to state court. The trial and appellate courts in Tennessee dismissed the complaints also holding no justiciable controversy existed. The text of the statute can be found on page 3.40-3.44.
Prayer at Graduation Since 1992, it has been well-settled that prayers delivered by clergy at commencement exercises are unconstitutional violations of the Establishment Clause. In Lee v. Weisman, 505 U.S. 577 (1992), the school designed the graduation program, selected the speaker and provided guidelines for the content of the prayer. According to the Court, this control by school officials placed subtle and indirect pressure on attendees to stand as a group or maintain a respectful silence during the prayer. The Court held that students should not be forced to choose between attending and participating in religious exercises and staying away entirely or otherwise protesting. After the Weisman decision, many school districts sought alternative ways to incorporate prayer into graduation. In an attempt to remove the “imprimatur” of school sponsorship of prayer, school districts have implemented policies authorizing “student-initiated, student-led prayer.” The Sixth Circuit has not yet addressed this question, however other federal decisions and the Supreme Court’s Santa Fe decision give guidance on the issue. Although some cases have distinguished prayer at graduation from football games on the grounds that graduation is a “sober” annual event which may be appropriately “solemnized with prayer,” the reasoning in the Santa Fe decision could also apply to graduation exercises. According to the Santa Fe decision, the fact that prayer is student-initiated and student-led does not remove the imprimatur of the school system in the context of a football game because: [T]he invocation is [...] delivered to a large audience assembled as part of a regularly
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Student Discipline and Rights scheduled school-sponsored function conducted on school property. The message is broadcast over the school’s public address system, which remains subject to the control of school officials. It is fair to assume that the pregame ceremony is clothed in the traditional indicia of school sporting events [such as uniforms, the school name on the field, attendees in school colors and t-shirts, etc.]... In this context, the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration…. Regardless of the listener’s support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval. Similarly, a student-led, student-initiated prayer at a school-sponsored graduation ceremony held on school grounds with school administrators presiding may also have constitutional problems. Note that other federal courts have upheld prayer at graduation where the authorizing policy or statute required nonsectarian and nonproselytizing prayer. Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992) cert denied 505 U.S. 1215 (1992); Chandler v. Siegelman, 203 F.3d 1313 (11th Cir. 2000). However, constitutional experts have observed that even such nondenominational prayers may not pass constitutional muster. Moreover, such requirements may complicate matters further by requiring school administrators to review proposed student speech to determine whether the speech is too sectarian – a practice which could be unconstitutional in and of itself. See Finding Common Ground: A First Amendment Guide to Religion and Public Education, Charles C. Haynes, Ph.D. and Oliver Thomas, Esq., 3rd Edition. While some questions still remain about how school districts and/or students may incorporate prayer into graduation ceremonies without running afoul of the Establishment Clause, one thing is certain – litigation in this area will continue and schools that develop graduation prayer policies should be prepared for challenges.
Equal Access Act The Equal Access Act was enacted by Congress in 1984 to “end perceived widespread discrimination” against religious speech in schools. The Act encompasses aspects of all three First Amendment Clauses by attempting to ensure that school officials allow students to exercise their religious freedoms and free speech rights in the school setting without violating the Establishment Clause. Pursuant to the Equal Access Act, secondary schools that permit non-curriculum related student groups to meet during non-instructional time may not discriminate against any student group based on the group’s political, philosophical or religious ideals. In other words, school officials may not engage in “viewpoint discrimination” in deciding which student groups will be allowed to use school facilities. If, however, a school system chooses to maintain a closed forum – i.e., does not allow any extracurricular group to meet on school grounds – then the provisions of the Act do not apply.
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Student Discipline and Rights Extracurricular clubs must be student-initiated and student-controlled. Faculty or non-school individuals may not direct or sponsor these clubs. An employee can, however, monitor the club. School officials may deny access to clubs that materially or substantially interfere with the orderly conduct of the schools, or that pose a danger or threat to the health, safety and welfare of students or employees or to school property. School board members or school officials cannot deny access to clubs based solely on a hunch or fear that the clubs will pose a threat or harm. They must base the refusal on actual evidence that there is a danger or threat. The Equal Access Act can be found on pages 3.38-3.39.
Community Use Policies As explained previously, the Equal Access Act prohibits viewpoint discrimination against student-led extracurricular groups. Although the specific protections of the Act do not protect community groups that seek to use school facilities from such discrimination, the Free Speech clause of the First Amendment offers similar protections for those groups if the school system has opened its doors for community use. In Tennessee, boards of education are authorized – but not required – to open school property for “public, community or recreational purposes.” T.C.A. 49-2-203(b)(4). If, however, a board chooses to open school property for community use, a “limited public forum” may be created. The creation of such a forum does not require the school system to open itself to every type of speech, however, the free speech clause dictates that once a limited public forum is created, any restrictions on the use of school facilities must be reasonable and must not discriminate on the basis of viewpoint. In 2001, the U.S. Supreme Court specifically addressed the question of community use policies in Good News Club v. Milford Central School District, 121 U.S. 2093. In that case, the Milford Central School District created a limited public forum with a policy that allowed the use of school facilities for, among other things, matters pertaining to the welfare of the community. Pursuant to this policy, several groups, including the Boy Scouts, the Girl Scouts and the 4-H Club, were allowed to use the school facilities to teach moral and character development. When Good News was denied the use of school facilities based on the religious nature of its program, the Club filed suit, claiming the school’s refusal violated the First Amendment. The Court agreed with the Club that the school’s refusal was impermissible viewpoint discrimination. According to the Court, the only difference between the activities of the Good News Club and the other clubs that were allowed to meet was that the GNC sought to teach morals and character from a religious viewpoint. The Court concluded that “speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint.” Next, the school district argued that even if refusing to let the Good News Club meet was viewpoint discrimination, the school’s interest in avoiding an Establishment Clause violation justified the disparate treatment. Specifically, the school was concerned that elementary school children would perceive the program as school
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Student Discipline and Rights sponsored and would feel pressure to participate, particularly since the Good News Club sought to use classrooms immediately after school. The Court rejected this argument, holding that the relevant community for determining an Establishment Clause violation was not elementary school students, but their parents. The Court observed that parental consent was required for students to attend the program and that the parents were fully capable of distinguishing between the school program and the after school religious program. The Court also concluded that while the Establishment Clause requires neutrality toward religion, the school’s refusal in this case could be interpreted as hostility toward religion. As the Good News case demonstrates, board decisions about religion in schools often leave school systems between the proverbial “rock and hard place.” The “rock” is the potential lawsuit if the board denies access to school facilities because of the religious nature of a group’s message. The “hard place” is the lawsuit alleging an Establishment Clause violation if the board appears to be sponsoring or endorsing religion. There are, however, several things a board can do to minimize the risk of litigation. First, a board may simply decide not to open school facilities to community use. While this certainly minimizes the risk of challenge, most boards find that allowing use of school facilities by outside groups benefits both students and the community and choose not to take such a restrictive approach. The first step to be taken by a board that wishes to open school facilities for limited community use is to develop a policy that sets clear parameters for use of school facilities without regard to viewpoint. It may also be helpful for the board to expressly disclaim any sponsorship or endorsement of the community groups that use school facilities and/or take other steps to avoid the appearance of official sponsorship. Of course, it is important to remember that, by establishing a limited public forum, boards do not relinquish all control of its facilities. Boards may still impose reasonable time, place and manner restrictions – such as limiting use to evenings and weekends or charging a reasonable fee to cover its costs – on all community groups, so long as it does not discriminate or impose different rules on any particular group because of its viewpoint. Importantly, the board’s community use policy should be reviewed by local counsel to ensure that the policy is legally sound and administrators should receive training to ensure that the policy will be applied in a non-discriminatory manner.
Free Speech Clause While the First Amendment’s free speech clause protects speech and expression from unreasonable government intrusion, it does not prohibit all governmental limitations on speech. In fact, the degree to which individual speech may be restricted depends largely on the forum. In the context of public schools, a trilogy of U.S. Supreme Court cases demonstrate that, while students do enjoy some First Amendment rights, the unique nature of the school environment gives school officials greater latitude in restricting student speech.
Individual Speech The first Supreme Court case to address student free speech rights in the school setting was Tinker v. Des
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Student Discipline and Rights Moines, 393 U.S. 503 (1969). In that case, a group of students challenged a school rule that prohibited them from wearing black armbands in protest of the Vietnam war. In finding that the rule violated the students’ First Amendment rights, the U.S. Supreme Court explained that students do not “shed their constitutional rights to freedom of speech or expression at the school house gate.”Although the armbands were not “speech” per se, the Court concluded that they were symbolic “speech”entitled to First Amendment protection because: 1) they were intended to convey a particularized message; and 2) the message could be understood by those who viewed it. The Court then set out a new test for free speech in the school context, holding that school officials may restrict individual student speech only if the speech is likely to cause a material and substantial disruption or interference with school activities. In Tinker, the school authorities were unable to show that the wearing of black armbands would have disrupted the school environment and therefore the rule violated the students’ First Amendment rights. Determining whether speech may be restricted under the Tinker standard requires a very fact specific inquiry. For example, in 1972, school officials in Hamilton County were allowed to prohibit the wearing of confederate flags because the school system had been recently integrated and the school was able to demonstrate that significant racial tensions still existed. Melton v. Young, 465 F.2d 1332 (6th Cir. 1972). In 2000, the Sixth Circuit revisited the confederate flag issue in Castorina v. Madison County Board of Education, 246 F.3d 536 (6th Cir. 2000). In that case, two students were sent home for wearing Hank Williams, Jr. t-shirts that bore a picture of the confederate flag. The Sixth Circuit applied the Tinker standard and remanded the case back to the trial court to determine whether the t-shirts in fact caused any disruption in the school. This case illustrates that unless a school can show evidence of racial tensions or the likelihood of disruption, then restricting the confederate flag today may violate student First Amendment rights.
Lewd or Indecent Speech The Court’s next opportunity to address the free speech rights of students in the school context came with the 1986 case Bethel v. Fraser, 478 U.S. 675. In that case, a student delivered a nominating speech for a fellow student that contained sexual references and implications – comparing the nominee to a part of the male anatomy. The response of the student body was mixed, including embarrassment, hooting, yelling and graphic simulations of the sexual activities to which Fraser alluded. Fraser was suspended for three days for violating the school’s policy against using “obscene, profane language or gestures” and he challenged his suspension in court. The U.S. Supreme Court found that the school’s actions did not violate Fraser’s First Amendment free speech rights. Specifically, the Court held that school officials have every right to limit vulgar, obscene or lewd speech that is inconsistent with the school’s educational mission. As the Court stated: “While public school students have the right to advocate unpopular and controversial views in school, that right must be balanced against the school’s interest in teaching socially appropriate behavior.”
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Student Discipline and Rights School Sponsored Speech The third student speech case from the Supreme Court involved the school’s right to remove controversial articles from a school newspaper. In Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988), a high school principal deleted from the school newspaper an article dealing with divorce and one dealing with teen pregnancy because he felt the content was not appropriate for the publication. Student members of the newspaper staff sued the school, claiming that the principal’s actions violated their free speech rights. The U.S. Supreme Court held that removing the articles was reasonably related to “legitimate pedagogical concerns” and therefore did not violate the students’ rights. Because the paper bore the imprimatur of the school, the Court concluded that the principal could impose reasonable restrictions on the paper’s content.
Student Dress Codes Historically, courts have held that a student’s appearance and choice of clothing is a matter of personal taste that is generally not entitled to First Amendment protection. Compare Long v. Jefferson County Board of Education, 121 F.Supp.2d 621 (W.D. Ky. 2000)(although not akin to “pure speech”, the right to choose clothes has an expressive element that does have constitutional protection). In 1971, the Sixth Circuit Court of Appeals (the federal district court governing Tennessee, Kentucky, Ohio and Michigan), held that there was no fundamental constitutional right to choose a hairstyle. Gfell v. Rickman, 441 F.2d 444 (6th Cir. 1971). Similarly, there is no fundamental right to wear short skirts, baggy pants or halter tops. These are matters of personal taste. Thus, school officials may regulate student dress so long as students are given adequate notice of what is and is not permissible, the restrictions are designed to further educational goals (such as minimizing disruption, decreasing discipline problems) and they are not arbitrary or capricious. Although appearance and hairstyles are generally not entitled to First Amendment protection, clothing and t-shirt messages can implicate free speech rights in some circumstances. The simplest example is that of a t-shirt bearing a written message. If the message contains profanity or is otherwise obscene or lewd, school officials can probably restrict the shirt under the reasoning in the Fraser case. See Boroff v. Van Wert City Board of Education, 220 F.3d 465 (6th Cir. 2001)(Marilyn Manson t-shirt was contrary to school’s education mission). If the shirt’s message is not lewd or obscene, then administrators may not prohibit the message unless they can demonstrate that it is likely to cause a substantial and material disruption to the school environment. See Castorina v. Madison County Board of Education, 246 F.3d 536 (6th Cir. 2000)(t-shirt bearing picture of Confederate flag was not disruptive). In some cases, a hat, a button, or a t-shirt bearing a symbol may be entitled to some First Amendment protection even though it contains no words. Courts have developed a two-part test for determining whether a symbol is expressive speech entitled to constitutional protection: 1) is the symbol intended to convey a particularized message; and 2) is that message likely to be understood by those who see it? A symbol that
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Student Discipline and Rights does not meet this test is generally not entitled to First Amendment protections. If a symbol is intended to convey a message and that message can be understood by others then school officials may be required to demonstrate that the message is likely to cause a substantial and material disruption in order to restrict the wearing of that symbol.
School Uniforms In recent years, some school officials have resorted to school uniforms and proscriptive dress codes (where students are required to wear certain styles and colors of clothing) in their efforts to reduce gang violence and student discipline and improve student achievement. Consequently, litigation over these types of dress codes is also on the rise. In 2001, the Sixth Circuit affirmed without comment a Kentucky district court’s ruling that such dress codes do implicate the First Amendment, but may nevertheless be permissible if the school can demonstrate that the uniforms further a substantial interest, are not intended to suppress free speech and the incidental restrictions on free speech rights are minimal. Long v. Jefferson County Board of Education, 121 F.Supp.2d 621 (W.D. Ky. 2000) aff ’d Long v. Jefferson County Board of Education, 2001 WL 1298911 (6th Cir. 2001)(unpublished decision). In that case, the district court concluded that school officials had a substantial and important interest in creating an appropriate learning environment by preventing gang presence and limiting fights in schools. The court also found that the dress code was not intended to suppress free speech and that students were afforded alternative ways to express themselves, such as badges and buttons. Therefore, the dress code was a permissible infringement on student expression.
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Student Discipline and Rights
Legal Reference Materials
School Law
2.38
Student Discipline and Rights
Equal Access Act 20 U.S.C. § 4071-4074. Denial of equal access prohibited (a) Restriction of limited open forum on basis of religious, political, philosophical, or other speech content prohibited It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings. (b) “Limited open forum” defined A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more non-curriculum related student groups to meet on school premises during non-instructional time. (c) Fair opportunity criteria Schools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum if such school uniformly provides that — (1) the meeting is voluntary and student-initiated; (2) there is no sponsorship of the meeting by the school, the government, or its agents or employees; (3) employees or agents of the school or government are present at religious meetings only in a non participatory capacity; (4) the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and (5) non-school persons may not direct, conduct, control, or regularly attend activities of student groups. (d) Construction of subchapter with respect to certain rights
School Law
2.39
Student Discipline and Rights
Nothing in this subchapter shall be construed to authorize the United States or any State or political subdivision thereof — (1) to influence the form or content of any prayer or other religious activity; (2) to require any person to participate in prayer or other religious activity; (3) to expend public funds beyond the incidental cost of providing the space for student-initiated meetings; (4) to compel any school agent or employee to attend a school meeting if the content of the speech at the meeting is contrary to the beliefs of the agent or employee; (5) to sanction meetings that are otherwise unlawful; (6) to limit the rights of groups of students which are not of a specified numerical size; or (7) to abridge the constitutional rights of any person. (e) Federal financial assistance to schools unaffected Notwithstanding the availability of any other remedy under the Constitution or the laws of the United States, nothing in this subchapter shall be construed to authorize the United States to deny or withhold Federal financial assistance to any school. (f ) Authority of schools with respect to order, discipline, well-being, and attendance concerns Nothing in this subchapter shall be construed to limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary.
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Student Discipline and Rights
Tennessee Student Religious Liberty Act 49-6-2901 Short title. This part shall be known and may be cited as the “Tennessee Student Religious Liberty Act of 1997.� 49-6-2902 Legislative findings. (a) The general assembly finds the following: (1) Judicial decisions concerning religion, free speech and public education are widely misunderstood and misapplied; (2) Confusion surrounding these decisions has caused some to be less accommodating of the religious liberty and free speech rights of students than permitted under the First Amendment to the United States Constitution; (3) Confusion surrounding these decisions has resulted in needless litigation and conflicts; (4) The Supreme Court of the United States has ruled that the establishment clause of the First Amendment to the United States Constitution requires that public schools neither advance nor inhibit religion. Public schools should be neutral in matters of faith and treat religion with fairness and respect; (5) Neutrality to religion does not require hostility to religion. The establishment clause does not prohibit reasonable accommodation of religion, nor does the clause bar appropriate teaching about religion; (6) Accommodation of religion is required by the free speech and free exercise clauses of the First Amendment as well as by the Equal Access Act (20 U.S.C. 4071 et seq.) and the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.); and (7) Setting forth the religious liberty rights of students in a statute would assist students and parents in the enforcement of the religious liberty rights of the students and provide impetus to efforts in public schools to accommodate religious belief in feasible cases. (b) The purpose of this part is to create a safe harbor for schools desiring to avoid litigation and to allow the free speech and religious liberty rights of students to the extent permissible under the establishment clause.
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Student Discipline and Rights 49-6-2903 Definitions. As used in this part unless the context otherwise requires: (1) “Establishment clause” means the portion of the First Amendment to the United States Constitution that forbids laws respecting an establishment of religion; (2) “Free exercise clause” means the portion of the First Amendment to the United States Constitution that forbids laws prohibiting the free exercise of religion; (3) “Free speech clause” means the portion of the First Amendment to the United States Constitution that forbids laws abridging the freedom of speech; (4) “Public school” means any school that: (A) Is operated by the state, a political subdivision of the state, or governmental agency within the state; and (B) Receives state financial assistance; and (5) “Student” means an individual attending a public school. 49-6-2904 Rights of students. (a) A student shall have the right to carry out an activity described in any of subdivisions (b)(1)-(4), if the student does not: (1) Infringe on the rights of the school to: (A) Maintain order and discipline; (B) Prevent disruption of the educational process; and (C) Determine educational curriculum and assignments; (2) Harass other persons or coerce other persons to participate in the activity; or (3) Otherwise infringe on the rights of other persons.
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Student Discipline and Rights
(b) Subject to the provisions of subsection (a), a student shall be permitted to voluntarily: (1) Pray in a public school, vocally or silently, alone or with other students to the same extent and under the same circumstances as a student is permitted to vocally or silently reflect, meditate or speak on nonreligious matters alone or with other students in such public school; (2) Express religious viewpoints in a public school to the same extent and under the same circumstances as a student is permitted to express viewpoints on nonreligious topics or subjects in such school; (3) Speak to and attempt to share religious viewpoints with other students in a public school to the same extent and under the same circumstances as a student is permitted to speak to and attempt to share nonreligious viewpoints with such other students; (4) Possess or distribute religious literature in a public school, subject to reasonable time, place, and manner restrictions to the same extent and under the same circumstances as a student is permitted to possess or distribute literature on nonreligious topics or subjects in such school; and (5) Be absent, in accordance with local education agency attendance policy, from a public school to observe religious holidays and participate in other religious practices to the same extent and under the same circumstances as a student is permitted to be absent from a public school for nonreligious purposes. (c) No action may be maintained pursuant to this part unless the student has exhausted the following administrative remedies: (1) The student or the student’s parent or guardian shall state their complaint to the school’s principal; (2) If the concerns are not resolved, then the student or the student’s parent or guardian shall make complaint in writing to the superintendent with the specific facts of the alleged violation; (3) The superintendent shall investigate and take appropriate action to ensure the rights of the student are resolved within thirty (30) days of receiving the written complaint; and (4) Only after the superintendent’s investigation and action may a student or the student’s parent or guardian pursue any other legal action pursuant to this part.
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Student Discipline and Rights (d) If a right of a student established under this section is violated by a public school, the student may assert the violation as a cause of action or a defense in a judicial proceeding and obtain appropriate relief against the public school. Any such action shall be brought in the circuit or chancery court where the violation occurred or where the student resides. Standing to assert a cause of action or defense under this section shall be governed by the Tennessee Rules of Civil Procedure and common law interpretations of such rules. (e) A student prevailing in a claim brought against a public school for a violation of this section or an action brought by a public school against a student for conduct covered by this section shall be entitled to reasonable attorney fees, court costs, and the cost of bringing or defending the action. 49-6-2905 Construction with First Amendment establishment clause. (a) Nothing in this part shall be construed to affect, interpret, or in any way address the establishment clause. (b) The specification of religious liberty or free speech rights in ยง 49-6-2901 through 49-6-2906 shall not be construed to exclude or limit religious liberty or free speech rights otherwise protected by federal, state or local law. 49-6-2906 Teachers and administrators not to violate the First Amendment establishment clause. Nothing in this part shall be construed to support, encourage or permit a teacher, administrator or other employee of the public schools to lead, direct or encourage any religious or antireligious activity in violation of that portion of the First Amendment of the United States Constitution prohibiting laws respecting an establishment of religion. 49-6-2907 Voluntary participation of personnel in religious activities on school grounds. (a) LEAs and school administrators may not prohibit personnel from participating in religious activities on school grounds that are initiated by students at reasonable times before or after the instructional day so long as such activities are voluntary for all parties and do not conflict with the responsibilities or assignments of such personnel. (b) Nothing in this section shall prohibit LEAs and school administrators from allowing personnel to participate in other constitutionally permissible religious activities on school grounds.
School Law
2.44
Out in the Open
Out in the Open Open Meetings Law
B
efore the Open Meetings Law was passed, many school board and other government meetings were conducted outside the public view. This was not always intentional. Often, the public was simply not informed about the meeting. With the passage of the law in 1974, the Legislature required that meetings of school boards, both regular and special, be “open” to the public. This is an area of the law to which school board members must pay special attention. If a board decision is made at a meeting which is in violation of the Sunshine Law, as it is commonly called, the action may be determined “null and void.” Despite straightforward language in the statute, much confusion exists regarding the provisions of the Open Meetings Law and any exceptions to the law that have been created by the courts and the Legislature. This section describes in detail the requirements of the law and discusses exceptions that are relevant to school board members. Portions of the law are found at the end of the chapter.
Purpose The purpose of the Open Meetings Law is to ensure that all citizens have an opportunity to be present at public meetings. “The General Assembly declares it to be the policy of the state that the formation of public policy and decision is public business and shall not be conducted in secret,” T.C.A. 8-44-101.
All meetings of any governing body are declared to be public meetings open to the public at all times… — T.C.A. 8-44-102(a)
It is noteworthy to recognize that the law does not require that the public be given a chance to participate in a public meeting. It only requires that the public be given notice of the public meeting and that all public meetings be held in the public. Nothing prohibits a school board from conducting business if no member of the public shows up at a meeting for which adequate notice has been given.
Meetings Defined A meeting is defined as the convening of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision in any matter. A public body consists of two or more members who have the authority to make decisions for or recommendations to a public body on a policy, T.C.A. 8-44-102.
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Out in the Open Any regular or special meeting of the board of education, during which board members deliberate towards or make a decision, whether formal action is taken or not, must be an open meeting. In 1990, a federal district court in Tennessee determined that the gathering of school board members at the superintendent’s house before the regularly scheduled Board meeting was not a “meeting” in violation of the sunshine law. The court stated: “Although the kind of social gathering that occurred . . . could easily be utilized to circumvent the spirit of the Act, the evidence was clear that the (Superintendent) may have spoken with two-tothree, perhaps four, members of the seven-member Board about some public business. He did not speak individually or in a group to all members or even about the same topics…The Superintendent manipulated the Board to the precipice of a violation but the Board did not go over the edge by deliberating or deciding public business.”1
Chance Meeting According to T.C.A. 8-44-102, a chance meeting… shall not be considered a public meeting. However, “no such chance meetings…shall be used to decide or deliberate public business in circumvention of the spirit of the (Open Meetings Law).” Board members who run into each other at the grocery store for example can comment generally on a board meeting, but they should not discuss items that are to be decided on or be deliberated by the board.
On-site Inspection T.C.A. 8-44-102 states that “meeting does not include any on-site inspection of any project or program.” If two or more board of education members decide to inspect the building of a new school, for example, this is not a public meeting.
Adequate Notice The statute requires that notice be given of a board meeting, and that notice should be “adequate,” T.C.A. 8-44-103. The courts have determined that the question of what is “adequate” depends on the totality of the circumstances. “Adequate public notice means adequate notice under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public.”2 In one Tennessee case, the Court of Appeals held that misleading notice is inadequate. In that case, the board of education had taken a retreat to discuss an important educational concept, clustering, that was being considered in its schools. Announcement of the retreat was given at a regular board meeting, although the minutes did not reflect the announcement. A local radio station also reported that the board voted to hold a retreat. The board’s normal practice
School Law
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Out in the Open of notifying the public of its regular meetings was to report the date, time and general agenda of the meeting to three media representatives in town: the local newspaper and two radio stations. The court stated that to be “adequate,” the notice should have indicated that the clustering concept was going to be discussed at the retreat. “Certainly ‘adequate public notice under the circumstances’ is not met by misleading or insufficient notice.”3 This case should not be interpreted to say that boards of education must indicate specifically all of the items to be discussed at an upcoming board meeting. The court felt that the “clustering” concept was so politically significant that to be fair, the board needed to inform the public that it was going to be the primary subject of the retreat. Every board of education should adopt a policy that specifies what is “adequate” notice for its regular and special meetings.
Minutes The Sunshine Law requires that minutes of a public meeting “shall be promptly and fully recorded, shall be open to public inspection, and shall include…a record of persons present, all motions, proposals and resolutions offered, the results of any votes taken, and a record of individual votes in the event of a roll call,” T.C.A. 8-44-104.
No Secret Votes All votes shall be public: by public vote, public ballot or public roll call. Secret votes or ballots are not allowed, T.C.A. 8-44-104.
Violation of the Law Any action taken at a meeting which is in violation of the Open Meetings Law shall be void and of no effect, unless it involves a legal commitment affecting the public debt of the school board, T.C.A. 8-44105. The courts may issue injunctions, may impose penalties and may otherwise enforce the provisions of the Sunshine Law when suit is brought by a citizen of Tennessee.
Violation of the Law The Tennessee Supreme Court has carved out one exception to the law based on the attorney-client privilege. In Smith County Education Association v. Anderson,4 the Court stated that meetings between a school board and its attorney during which discussion of present and pending litigation takes place may be held in private.
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Out in the Open School board members may provide their attorney with facts and information regarding the lawsuit. The school board attorney may advise the school board about legal ramifications of the facts. But the court emphasized that the exception is limited: “Once any discussion whatsoever begins among the members of the public body regarding what action to take based upon advice of counsel, whether it be settlement or otherwise, such discussion shall be open to the public and failure to do so shall constitute a clear violation of the Open Meetings Law.” In Van Hooser v. Warren County Board of Education5, the court extended the exception created in the Smith County case. In addition to attorney-board discussions involving actual litigation, the court held that attorney-board discussions of pending controversy could be held in private. Pending controversy was defined as controversy that was likely to result in litigation. Tennessee’s courts have since affirmed that decision in Marie Lee v. Franklin City Board of Education6 and again most recently in Baltrip v. Norris, 23 S.W.3d 336 (TN. Ct. App. 2000).
Footnotes 3 4 5 6 1 2
Bundren v. Peters, 732 F.Supp.1486 (E.D. Tn. Dec. 12, 1989). Memphis Pub. Co. v. City of Memphis, 513 S.W.2d 511 (Tenn. 1974). Neese v. Paris Special School District, 813 SW2d 432 (TN APP. 1990). Smith County Education Association v. Anderson, 676 S.W.2d 328 (Tenn. 1984). Van Hooser v. Warren County Board of Education, 807 S.W. 2d 230 (Tenn. 1991). Marie Lee v. Franklin Special School District, No. O1S01 - 9008 - CH - 00075, Tenn. S. Ct. 1991, Not published.
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Out in the Open
Open Meetings Act Cases 1. Smith County Education Association v. Anderson, 676 S.W.2d 328 (Tenn. 1984) Established attorney-client relationship between board of education and its counsel as a constitutional exception to the Open Meetings Act. This exception is limited to meetings in which discussion of present and pending litigation takes place. Clients may provide counsel with facts and information regarding the lawsuit and counsel may advise them about the legal ramifications of those facts, but any discussion about settlement or how to proceed based on advice of attorney must be open to the public. 2. Cooper v. Williamson County Board of Education, 746 S.W.2d 176 (Tenn. 1988) Attorney-client exception to the Open Meetings Act applied to informal meeting between Board and its attorney where Board’s employment action might have violated standing federal court order. Exception also applied to meeting between Board and its attorney to discuss settlement offer made by plaintiff/employee where plaintiff/employee requested that the offer not be made public. No decisions were made in the closed meetings and no deliberations took place. Bundren v. Peters, 732 F.Supp. 1486 (E.D. Tenn. 1989) 3. Social gathering of board members at Superintendent’s home prior to a regularly scheduled meeting did not violate the Open Meetings Act. By speaking individually with board members about various topics at this gathering, the Superintendent “manipulated the Board to the precipice of a violation” but there was no evidence that the Board deliberated or made decisions about the public business. Although a social gathering of this type could “easily be used to circumvent the spirit and letter of the [law],” the evidence did not reveal any wrongdoing by members of the Board. Van Hooser v. Warren County Board of Education, 897 S.W.2d 230 (Tenn. 1991) 4. Board’s meeting with its attorney to discuss a pending controversy relating to the dismissal of a tenured teacher fell within the attorney-client exception to the Open Meetings Act since the controversy was likely to result in litigation. However, the Board violated the Open Meetings Act by deliberating and approving settlement conditions in the private meeting and therefore the settlement was void and of no effect. Note that the “settlement” was not a payment of money, but a list of “conditions of continued employment” with which the teacher was to comply in order to avoid further employment action. Baltrip v. Norris, 23 S.W.3d 336 (Tenn. Ct. App. 2000) 5. Board’s meeting with its attorney to discuss options following a teacher dismissal hearing did not violate the Open Meetings Act. Charges of unprofessional conduct lodged against tenured teacher constituted a pending controversy that was likely to result in litigation and therefore the attorney-client exception applied. Evidence showed that attorney advised the Board of its legal options and that no deliberation or decisionmaking occurred. The lack of discussion after the board resumed its public session was not sufficient evi-
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Out in the Open dence from which to infer a violation of the Open Meetings Act. If you need a refresher course on the Sunshine Law, TSBA has a video available on their website. The video can be found by visiting, http://tsba.net/Services_Products/Legal_Services.
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Student Records Both federal and state statutory law govern access to the records of students in Tennessee schools. Tennessee’s public records law specifically provides for the confidentiality of such records.1 The primary federal law addressing student records is the “Family Educational Rights And Privacy Act� (FERPA).2 Sometimes referred to as the Buckley Amendment, this law controls the inspection, amendment, and disclosure of educational records. In addition to the statutory protections afforded under these acts, students enjoy a common law right of privacy.
I. Family Educational Rights And Privacy Act FERPA, passed in 1974, grew out of an increasing concern over the record keeping practices of public schools and the privacy rights of students. The Act establishes rights of students and parents in accessing educational records, challenging their content, and disseminating educational records to third parties. Prior to the passage of FERPA, the rights of parents and students were unclear in the area of challenging the content of records. Non-custodial parents were arbitrarily prevented from accessing records and third party disclosure was sometimes abused. While individual privacy rights should have barred abuse in disclosure to third parties, in practice student information was indiscriminately made available to law enforcement agencies, employers, health department officials, and juvenile courts without the use of subpoenas.
A. Scope With a few exceptions, FERPA applies to any educational agency or institution to which funds have been made made available under any program administered by the United States Secretary of Education if the institution provides educational services or instruction to students or administrative control.3 This generally includes both private and public institutions. Receiving funds has been liberally construed to include indirect receipt of funds such as through grant or contract or from students who pay tuition with moneys received from a federal program. In practicality almost all education agencies receive funds from some applicable program and therefore come under the purview of FERPA. Certainly, all local education agencies in Tennessee are under the mandates of the Act.
B. Student Defined In order to be a student for purposes of the Act, an individual must be in or have been in attendance at the institution and the institution must maintain a record on the student.4 This includes correspondence students and students in work-study programs.5 The Act does treat former students differently in some procedural aspects. For example, educational agencies do not have to give the annual notice of rights under FERPA that is mandated for current students.6 Also, the educational agency may disclose directory information about former students without informing them of the designation of such information as directory information.7
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C. Education Record Defined The Act defines “education records” as records, files, and documents, and other materials which contain information directly related to a student and are maintained by an education agency or a person or institution acting on behalf of the agency.8 In the physical sense, record includes any form of recording including, but not limited to, handwriting, print, computer media, video or audio, tape, film, microfilm, and microfiche.9 Certain records are excluded from the provisions of the Act. Records of instructional, supervisory, and administrative personnel which are kept in the sole possession of the person making such record are specifically excluded so long as they are not accessible or revealed to other personnel (except temporary substitutes of the possessor).10 Also excluded are records related to persons in their capacities as employees.11 In one case, a teacher tried to invoke the protections of FERPA when access to her college transcript was sought by a third party under a state open records law. The transcript was kept as part of the teacher’s employment records. The court rejected the teacher’s argument relying on FERPA’s requirements that a ‘student’ must be someone in attendance at the school and an ‘education record’ must be one made and maintained by the school.12
D. Authority To Assert Rights FERPA vests the power to assert rights under the Act in parents of students. This includes a natural parent, guardian, or individual acting as a parent in the absence of a parent or guardian.13 Once a student attains age 18 or enrolls in a post-secondary institution, the student becomes “eligible” under the Act and the rights afforded to parents transfer to the student.14 Either parent is entitled to full rights under the Act absent a court order, state statute, or other legally binding document relating to custody matters that specifically limits these rights.15
E. Rights Under FERPA 1. Right to be informed: The Act requires education agencies to annually notify parents or eligible students of the rights embodied in the Act.16 The notice must inform parents or eligible students of their rights under FERPA.17 The notice must inform parents or eligible students of: a. their right to inspect and review the student’s education records;18 b. their right to pursue amendment of a student’s education record believed to be inaccurate, misleading, or violating a student’s privacy rights;19 c. their right to consent to disclosure of personally identifiable information except where the law affords disclosure without consent;20 d. their right to file a complaint with the U.S. Department of Education when the local education agency does not comply with the law;21 e. the procedure for inspecting education records;22
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f. the procedure for requesting an amendment to a student record;23 and g. the criteria for determining who is a school official and what constitutes a legitimate educational interest if the LEA discloses information without parental consent where allowed by FERPA.24 This notice requirement may be met by any reasonable means that will likely inform parents or eligible students of their rights, specifically including parents of disabled students and non-English speaking parents.25 2. Right to prevent disclosure of education records: In order to release personally identifiable information, the agency must obtain consent from the parent or eligible student. This consent must be dated, signed, specify what records are to be disclosed and the purpose of the disclosure. It must identify the parties to whom disclosure is made. Also, a copy of the disclosed record must be given to parents upon request.26 The Tennessee Attorney General has opined that parental consent would be required for the state Library and Archives to microfilm and maintain local school records since those records potentially could contain student grades.27 In an opinion also citing FERPA, the Attorney General’s office stated that records on student loan defaults maintained by the Tennessee Student Assistance Corporation are confidential and could not be released to the news media without consent.28 The Act does provide several exceptions to the consent requirement. These are specifically enumerated in the regulations. The better practice is to presumptively assume consent is required until an exception is identified in the regulations. One of these exceptions is the disclosure of personally identifiable information designated as ‘directory information’. This information may be released without obtaining consent so long as the parent or eligible student has not objected to the disclosure of that directory information within a reasonable time after receiving the annual notice required by FERPA.29 Directory information means “information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.” It includes, but is not limited to, the student’s name, address, telephone listing, electronic email address, photograph, date and place of birth, participation in sports and officially recognized activities, grade level, enrollment status, weight and height of athletic team members, dates of attendance, degrees and awards received, and the most recent institution attended.30 Other exceptions to acquiring parental consent for disclosure are: a. to other personnel in the education agency who have a legitimate educational interest in the records;31 b. to other educational agencies in which the student seeks to enroll;32 c. to specified federal, state, and local authorities in connection with the audit or evaluation of programs;33 d. in connection with a financial aid application;34 e. to state and local officials pursuant to a state statute concerning the juvenile justice system;35
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f. to organizations conducting studies on behalf of educational agencies to improve instruction or develop or validate tests;36 g. to accrediting organizations;37 h. to parents of a dependent student as defined by § 152 of the Internal Revenue Code of 1954;38 i. in response to a lawfully issued subpoena or judicial order, or without a subpoena if the LEA initiates legal action against a parent or student, or if the parent or student initiates legal action against the LEA.39 j. where there is a threat to the health or safety of the student or others.40 The regulations specifically allow disclosure to teachers and school officials in other schools who have legitimate educational interest in the behavior of the student.41 3. Right to inspect and review education records: The Act requires that each agency establish procedures for allowing parents the right to review and inspect educational records.42 This inspection must be allowed within a reasonable time, but in no case more than 45 days after the request has been made.43 The agency is also under a duty to explain and interpret the content of such records if requested to do so.44 If failure to provide parents with a copy of the record effectively prohibits their right of inspection, then copies must be provided to parents.45 If the records contain information on more than one student then the parents may inspect only that portion pertaining to their child.46 4. Right to challenge content of the record: A parent may request an agency to amend a record if the parent believes the record is inaccurate or contains misleading information or information that is invasive of the student’s right of privacy.47 The agency must decide whether to amend the record within a reasonable time and inform the parents of their right to a hearing should the agency decide not to amend the record.48 If a hearing is convened and, as a result, the agency decides the record should be amended, it must make the amendment and inform the parents of the amendment in writing.49
F. Enforcement The Secretary of Education is charged with taking the necessary measures to enforce the act. Action may only be taken after a finding that compliance cannot be obtained via voluntary means. Aggrieved parties may file complaints with the Family Policy Compliance Office in the U.S. Department of Education. The regulations on enforcement procedures are extensive. The measures for enforcement progress from withholding further payments under any applicable program to issuing a cease and desist order to terminating eligibility of the agency to receive funds for any applicable program. 50
51
52
53
FERPA alone provides for no private cause of action. However, this does not mean that school systems should only be concerned with the compliance and enforcement procedures enunciated in the Act. A federal court of appeals has held that a violation of FERPA may be the basis for a 42 U.S.C. § 1983 claim. This creates the possibility that attorneys’ fees or punitive damages could be awarded where a violation of FERPA is the basis for such a claim. 54
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Out in the Open II. Tennessee Statutes While the federal act provides a much more comprehensive treatment of the law on student records, Tennessee’s public records act also classifies student records as confidential. Tenn. Code Ann. § 10-7-504(a)(4) reads: “The records of students in public educational institutions shall be treated as confidential. Information in such records relating to academic performance, financial status of a student or the student’s parent or guardian, medical or psychological treatment or testing shall not be made available to unauthorized personnel of the institution or to the public or any agency, except those agencies authorized by the educational institution to conduct specific research or otherwise authorized by the governing board of the institution, without the consent of the student involved or the parent or guardian of a minor student attending any institution of elementary or secondary education, except as otherwise provided by law or regulation pursuant thereto and except in consequence of due legal process or in cases when the safety of persons or property is involved. The governing board of the institution, the department of education, and the Tennessee higher education commission shall have access on a confidential basis to such records as are required to fulfill their lawful functions. Statistical information not identified with a particular student may be released to any person, agency, or the public; and information relating only to an individual student’s name, age, address, dates of attendance, grade levels completed, class placement and academic degrees awarded may likewise be disclosed.” This statutes mirrors FERPA in that it requires parental consent for disclosure while allowing for release of directory information without consent; allows access by authorized institutional personnel; and allows disclosure pursuant to legal process or in cases where safety of persons or property is involved. The Tennessee Court of Appeals has held that photographs of students in a disciplinary setting taken through a classroom window by a newspaper employee were not public records per se and thus not violative of the above statute.55 Tennessee’s education code specifically directs a local education agency to provide non-custodial or non-residential parents with copies of a child’s report card upon receipt of a written request from the non-custodial or non-residential parent.56 Lastly, Tennessee’s home school law places restrictions on the use of records kept by the local superintendent as part of the home school notification process required by the statute.57 This information may only be used for record keeping and other purposes for which similar information on public school students may be used.
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Out in the Open III. Conclusion Federal and state laws place extensive restrictions on the use and access of student records. The most useful and necessary step in complying with these mandates is the development and publication of appropriate NOTICE TO PARENTS AND ELIGIBLE STUDENTS. Given that courts have increasingly recognized violations of FERPA as actionable under ยง1983 (and thus subject to money damages), it is essential that school personnel comply with the provisions of the law.
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Footnotes 1 2 3 4 5 6
Tenn. Code Ann. § 10-7-504 20 U.S.C. § 1232 et seq 34 C.F.R § 99.1(a) 34 C.F.R § 99.3 34 C.F.R § 99.3 20 U.S.C. § 1232g(e); 34 C.F.R. § 99.7 7 20 U.S.C. §1232g(a)(5)(B); 34 C.F.R. § 99.37(b) 8 20 U.S.C. §1232(g)(4)(A) 9 34 C.F.R. §99.3 10 20 U.S.C. §1232g(a)(4)(B)(i) 11 20 U.S.C. §1232g(a)(4)(B)(iii); 34 C.F.R. §99.3 12 Klein Independent School District v. Mattox, 830 F.2d 576(5th Cir.1987) 13 20 U.S.C. §1232g(a)(1)(A); 34 C.F.R. §99.3 14 20 U.S.C. §1232g(d); 34 C.F.R. §99.3 15 34 C.F.R. §99.4 16 20 U.S.C. §1232g(e); 34 C.F.R. §99.7(a)(1) 17 34 C.F.R. §99.7(a)(2) !!!!!! 18 34 C.F.R. §99.7(a)(2)(i) 19 34 C.F.R. §99.7(a)(2)(ii) 20 34 C.F.R. §99.7(a)(2)(iii) 21 34 C.F.R. §99.7(a)(2)(iv) 22 34 C.F.R. §99.7(a)(3)(i) 23 34 C.F.R. §99.7(a)(3)(ii) 24 34 C.F.R. §99.7(a)(3)(iii) 25 34 C.F.R. §99.7(b) 26 34 C.F.R. §99.30 27 Tenn.Op.Atty.Gen. No. 88-145 28 Tenn.Op.Atty.Gen. No. 82-93 29 34 C.F.R. §99.31(a)(11) 30 34 C.F.R. §99.3 31 20 U.S.C. §1232g(b)(1)(A); 34 C.F.R. §99.31(a)(1) 32 20 U.S.C. §1232g(b)(1)(B); 34 C.F.R. §99.31(a)(2) 33 34 C.F.R. §99.31(a)(3) 34 34 C.F.R. §99.31(a)(4) 35 34 C.F.R. §99.31(a)(5) 36 34 C.F.R. §99.31(a)(6) 37 34 C.F.R. §99.31(a)(7) 38 34 C.F.R. §99.31(a)(8) 39 34 C.F.R. §99.31(a)(9) 40 34 C.F.R. §99.31(a)(10) 41 20 U.S.C. §1232g(b)(1)(I);34 C.F.R. §99.36(b)(3) 42 20 U.S.C. §1232g(a)(1)(A); 34 C.F.R. §99.10(a) 43 20 U.S.C. §1232g(a)(1)(A); 34 C.F.R. §99.10(b) 44 34 C.F.R. §99.10(c)
45 34 C.F.R. §99.10(d) 46 20 U.S.C. §1232g(a)(1)(A); 34 C.F.R. §99.12(a) 47 34 C.F.R. §99.20(a) 48 34 C.F.R. §99.20(b) and (c) 49 34 C.F.R. §99.21(b)(1)(i) and (ii) 50 20 U.S.C. §1232g(f ) 51 34 C.F.R. §99.63 52 34 C.F.R. §99.60-99.67 53 34 C.F.R. §99.67 54 Fay v. South Colonie Central School District, 802 F2d 21 (2d Cir. 1986) 55 Sevier County Bd. of Ed. v. Worrell Enterprises, Inc., No.03101-9406-CV -00190(Tenn.App. 1994) 56 Tenn. Code Ann. § 49-6-902 57 Tenn. Code Ann. § 49-6-3050
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Legal Reference Materials
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OPEN MEETINGS / OPEN RECORDS QUESTIONS FOR DISCUSSION 1. Mr. Johnson, a member of the county school board, decides to run for a seat in the state House of Representatives. He repeatedly contacts all his fellow board members by phone soliciting their support. He makes personal visits to three of the members’ houses requesting campaign contributions? Is this a violation of the “Sunshine Law”?
2. The director of schools of the Volunteer School District appointed a committee of faculty members for the purpose of advising the director on the organization and requirements of participation in extra-curricular activities. The director prepares the agenda for the meetings and presides over them. They are held in the central office conference room. No public notices of the meetings are posted and no one outside the members are allowed admittance. A local newspaper files a lawsuit seeking to have the meetings declared in violation of the “Sunshine Law” and to gain access. What is the likelihood of success of the lawsuit?
3. The last item on the board’s agenda at its regular meeting is a personnel matter. The board had received a letter from an attorney representing a former employee who claims she was forced to leave the system because she was sexually harassed. In the letter, the attorney states that it appears that his client is “left with no recourse but to pursue her claim through the courts.” The chairman adjourns the meeting and all board members retire to the conference room to discuss this case with Mr. Sharp, the board’s attorney. Can this meeting be in private? Could the board also discuss the issue of local salary supplements? That issue is currently part of the ongoing negotiations process and discussing this in an open meeting would hamper the board’s negotiating position .
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Out in the Open 4. Five members of the nine-member school board meet at the local restaurant for lunch. They discuss the upcoming selection of an engineer to design the high school’s new athletic fields. They agree that Mr. Green, a local engineer, should get the contract. At the next meeting the board votes unanimously to hire Mr. Green to do the design. A contract with Mr. Green is signed shortly thereafter, and Mr. Green then completes half of his work under the contract. A local citizen who overheard the lunch-time conversation files a lawsuit seeking to have the decision declared void. If the court finds the meeting in violation, what is the status of the contract with Mr. Green?
5. Two citizens, angered at the size of the school board budget, ask to see all the financial records of the school board, including salary figures of the central office staff. The two work out of the county and cannot come to the board office during regular business hours. They demand that the superintendent open the office after hours on Saturday so that they can inspect the books. Also, they want copies of the records? What are the obligations of the board.
6. A group of disgruntled parents is concerned about the qualifications of the local high school’s calculus teacher. They ask to see the teacher’s personnel file to review his college transcript. Can they have access to the transcript?
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Selected Provisions of the Tennessee Open Meetings Statute 8-44-102. Open Meetings - “Governing body” defined - “Meeting” defined (a) All meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee. (b) (1) “Governing body” means: (A) The members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body on policy or administration and also means a community action agency which administers community action programs under the provisions of 42 U.S.C. § 2790 [repealed]. Any governing body so defined by this section shall remain so defined, notwithstanding the fact that such governing body may have designated itself as a negotiation committee for collective bargaining purposes, and strategy sessions of a governing body under such circumstances shall be open to the public at all times... (2) “Meeting” means the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. “Meeting” does not include any on-site inspection of any project or program. (c) Nothing in this section shall be construed as to require a chance meeting of two (2) or more members of a public body to be considered a public meeting. No such chance meetings, informal assemblages, or electronic communication shall be used to decide or deliberate public business in circumvention of the spirit or requirements of this part. 8-44-103. Notice of public meetings. (a) Notice of Regular Meetings. Any such governmental body which holds a meeting previously scheduled by statute, ordinance, or resolution shall give adequate public notice of such meeting. (b) Notice of Special Meetings. Any such governmental body which holds a meeting not previously scheduled by statute, ordinance, or resolution, or for which notice is not already provided by law, shall give adequate public notice of such meeting. (c) The notice requirements of this part are in addition to, and not in substitution of, any other notice required by law.
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8-44-104. Minutes recorded and open to public - Secret votes prohibited. (a) The minutes of a meeting of any such governmental body shall be promptly and fully recorded, shall be open to public inspection, and shall include, but not be limited to, a record of persons present, all motions, proposals and resolutions offered, the results of any votes taken, and a record of individual votes in the event of roll call. (b) All votes of any such governmental body shall be by public vote or public ballot or public roll call. No secret votes, or secret ballots, or secret roll calls shall be allowed. As used in this chapter, “public vote” means a vote in which the “aye” faction vocally expresses its will in unison and in which the “nay” faction, subsequently, vocally expresses its will in unison. 8-44-105. Action nullified - Exception. Any action taken at a meeting in violation of this part shall be void and of no effect; provided, that this nullification of actions taken at such meetings shall not apply to any commitment, otherwise legal, affecting the public debt of the entity concerned. 8-44-106. Enforcement - Jurisdiction. (a) The circuit courts, chancery courts, and other courts which have equity jurisdiction, have jurisdiction to issue injunctions, impose penalties, and otherwise enforce the purposes of this part upon application of any citizen of this state. (b) In each suit brought under this part, the court shall file written findings of fact and conclusions of law and final judgments, which shall also be recorded in the minutes of the body involved. (c) The court shall permanently enjoin any person adjudged by it in violation of this part from further violation of this part. Each separate occurrence of such meetings not held in accordance with this part constitutes a separate violation. (d) The final judgment or decree in each suit shall state that the court retains jurisdiction over the parties and subject matter for a period of one (1) year from date of entry, and the court shall order the defendants to report in writing semiannually to the court of their compliance with this part.
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Selected Provisions of the Tennessee Open Records Statute 10-7-503. Records open to public inspection - Schedule of reasonable charges - Costs. (a) (1) (A) As used in this part and title 8, chapter 4, part 6, “public record or records” or “state record or records” means all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency. (B) “Public record or records” or “state record or records” does not include the device or equipment, including, but not limited to, a cell phone, computer or other electronic or mechanical device or equipment, that may have been used to create or store a public record or state record. (2) (A) All state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law. (B) The custodian of a public record or the custodian’s designee shall promptly make available for inspection any public record not specifically exempt from disclosure. In the event it is not practicable for the record to be promptly available for inspection, the custodian shall, within seven (7) business days: (i) Make the information available to the requestor; (ii) Deny the request in writing or by completing a records request response form developed by the office of open records counsel. The response shall include the basis for the denial; or (iii) Furnish the requestor a completed records request response form developed by the office of open records counsel stating the time reasonably necessary to produce the record or information. (C) [Deleted by code commission.] (3) Failure to respond to the request as described in subdivision (a)(2) shall constitute a denial and the person making the request shall have the right to bring an action as provided in § 10-7-505.
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(4) This section shall not be construed as requiring a governmental entity or public official to sort through files to compile information; however, a person requesting the information shall be allowed to inspect the nonexempt records. (5) This section shall not be construed as requiring a governmental entity or public official to create a record that does not exist; however, the redaction of confidential information from a public record or electronic database shall not constitute a new record. (6) A governmental entity is prohibited from avoiding its disclosure obligations by contractually delegating its responsibility to a private entity. (7) (A) A records custodian may not require a written request or assess a charge to view a public record unless otherwise required by law; however, a records custodian may require a request for copies of public records to be in writing or that the request be made on a form developed by the office of open records counsel. The records custodian may also require any citizen making a request to view a public record or to make a copy of a public record to present a photo identification, if the person possesses a photo identification, issued by a governmental entity, that includes the person’s address. If a person does not possess a photo identification, the records custodian may require other forms of identification acceptable to the records custodian. (B) Any request for inspection or copying of a public record shall be sufficiently detailed to enable the records custodian to identify the specific records to be located or copied. (C) (i) A records custodian may require a requestor to pay the custodian’s reasonable costs incurred in producing the requested material and to assess the reasonable costs in the manner established by the office of open records counsel pursuant to § 8-4-604. (ii) The records custodian shall provide a requestor an estimate of the reasonable costs to provide copies of the requested material. (b) The head of a governmental entity may promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to maintain the confidentiality of records concerning adoption proceedings or records required to be kept confidential by federal statute or regulation as a condition for the receipt of federal funds or for participation in a federally funded program. (c) (1) Except as provided in § 10-7-504(g), all law enforcement personnel records shall be open for inspection as provided in subsection (a); however, whenever the personnel records of a law enforcement officer are
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inspected as provided in subsection (a), the custodian shall make a record of such inspection and provide notice, within three (3) days from the date of the inspection, to the officer whose personnel records have been inspected: (A) That such inspection has taken place; (B) The name, address and telephone number of the person making such inspection; (C) For whom the inspection was made; and (D) The date of such inspection. (2) Information made confidential by this chapter shall be redacted whenever possible, but the costs associated with redacting records or information, including the cost of copies and staff time to provide redacted copies, shall be borne as provided by current law. (3) Any person making an inspection of such records shall provide such person’s name, address, business telephone number, home telephone number, driver license number or other appropriate identification prior to inspecting such records. 10-7-504. Confidential records. (a) (4) (A) The records of students in public educational institutions shall be treated as confidential. Information in such records relating to academic performance, financial status of a student or the student’s parent or guardian, medical or psychological treatment or testing shall not be made available to unauthorized personnel of the institution or to the public or any agency, except those agencies authorized by the educational institution to conduct specific research or otherwise authorized by the governing board of the institution, without the consent of the student involved or the parent or guardian of a minor student attending any institution of elementary or secondary education, except as otherwise provided by law or regulation pursuant thereto, and except in consequence of due legal process or in cases when the safety of persons or property is involved. The governing board of the institution, the department of education, and the Tennessee higher education commission shall have access on a confidential basis to such records as are required to fulfill their lawful functions. Statistical information not identified with a particular student may be released to any person, agency, or the public; and information relating only to an individual student’s name, age, address, dates of attendance, grade levels completed, class placement and academic degrees awarded may likewise be disclosed.
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Out in the Open (b) Any record designated “confidential” shall be so treated by agencies in the maintenance, storage and disposition of such confidential records. These records shall be destroyed in such a manner that they cannot be read, interpreted or reconstructed. The destruction shall be in accordance with an approved records disposition authorization from the public records commission. (c) Notwithstanding any provision of the law to the contrary, any confidential public record in existence more than seventy (70) years shall be open for public inspection by any person unless disclosure of the record is specifically prohibited or restricted by federal law or unless the record is a record of services for a person for mental illness or intellectual and developmental disabilities. The provisions of this section do not apply to a record concerning an adoption or a record maintained by the office of vital records or by the Tennessee bureau of investigation. For the purpose of providing an orderly schedule of availability for access to such confidential public records for public inspection, all records created and designated as confidential prior to January 1, 1901, shall be open for public inspection on January 1, 1985. All other public records created and designated as confidential after January 1, 1901 and which are seventy (70) years old on January 1, 1985, shall be open for public inspection on January 1, 1986; thereafter all such records shall be open for public inspection pursuant to this part after seventy (70) years from the creation date of such records. (d) Records of any employee’s identity, diagnosis, treatment, or referral for treatment that are maintained by any state or local government employee assistance program shall be confidential; provided, that any such records are maintained separately from personnel and other records regarding such employee that are open for inspection. For purposes of this subsection (d), “employee assistance program” means any program that provides counseling, problem identification, intervention, assessment, or referral for appropriate diagnosis and treatment, and follow-up services to assist employees of such state or local governmental entity who are impaired by personal concerns including, but not limited to, health, marital, family, financial, alcohol, drug, legal, emotional, stress or other personal concerns which may adversely affect employee job performance. (e) Unpublished telephone numbers in the possession of emergency communications districts created pursuant to title 7, chapter 86, shall be treated as confidential and shall not be open for inspection by members of the public until such time as any provision of the service contract between the telephone service provider and the consumer providing otherwise is effectuated; provided, that addresses held with such unpublished telephone numbers, or addresses otherwise collected or compiled, and in the possession of emergency communications districts created pursuant to title 7, chapter 86, shall be made available upon written request to any county election commission for the purpose of compiling a voter mailing list for a respective county. (f ) (1) The following records or information of any state, county, municipal or other public employee or former employee, or of any law enforcement officer commissioned pursuant to § 49-7-118, in the possession of a governmental entity or any person in its capacity as an employer shall be treated as confidential and shall not be open for inspection by members of the public:
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Out in the Open (A) Home telephone and personal cell phone numbers; (B) Bank account and individual health savings account, retirement account and pension account information; provided, that nothing shall limit access to financial records of a governmental employer that show the amounts and sources of contributions to the accounts or the amount of pension or retirement benefits provided to the employee or former employee by the governmental employer; (C) Social security number; (D) (i) Residential information, including the street address, city, state and zip code, for any state employee; and (ii) Residential street address for any county, municipal or other public employee; (E) Driver license information except where driving or operating a vehicle is part of the employee’s job description or job duties or incidental to the performance of the employee’s job; and (F) The information listed in subdivisions (f )(1)(A)-(E) of immediate family members or household members... (2) Information made confidential by this subsection (f ) shall be redacted wherever possible and nothing in this subsection (f ) shall be used to limit or deny access to otherwise public information because a file, a document, or data file contains confidential information. (3) Nothing in this subsection (f ) shall be construed to limit access to these records by law enforcement agencies, courts, or other governmental agencies performing official functions. (4) Nothing in this subsection (f ) shall be construed to close any personnel records of public officers which are currently open under state law. (5) Nothing in this subsection (f ) shall be construed to limit access to information made confidential under this subsection (f ), when the employee expressly authorizes the release of such information... 10-7-505. Denial of access - Procedures for obtaining access - Court orders - Injunctions - Appeals Liability for nondisclosure. (a) Any citizen of Tennessee who shall request the right of personal inspection of any state, county or municipal record as provided in § 10-7-503, and whose request has been in whole or in part denied by the official and/or designee of the official or through any act or regulation of any official or designee of any official, shall
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Out in the Open be entitled to petition for access to any such record and to obtain judicial review of the actions taken to deny the access. (b) Such petition shall be filed in the chancery court or circuit court for the county in which the county or municipal records sought are situated, or in any other court of that county having equity jurisdiction. In the case of records in the custody and control of any state department, agency or instrumentality, such petition shall be filed in the chancery court or circuit court of Davidson County; or in the chancery court or circuit court for the county in which the state records are situated if different from Davidson County, or in any other court of that county having equity jurisdiction; or in the chancery court or circuit court in the county of the petitioner’s residence, or in any other court of that county having equity jurisdiction. Upon filing of the petition, the court shall, upon request of the petitioning party, issue an order requiring the defendant or respondent party or parties to immediately appear and show cause, if they have any, why the petition should not be granted. A formal written response to the petition shall not be required, and the generally applicable periods of filing such response shall not apply in the interest of expeditious hearings. The court may direct that the records being sought be submitted under seal for review by the court and no other party. The decision of the court on the petition shall constitute a final judgment on the merits. (c) The burden of proof for justification of nondisclosure of records sought shall be upon the official and/ or designee of the official of those records and the justification for the nondisclosure must be shown by a preponderance of the evidence. (d) The court, in ruling upon the petition of any party proceeding hereunder, shall render written findings of fact and conclusions of law and shall be empowered to exercise full injunctive remedies and relief to secure the purposes and intentions of this section, and this section shall be broadly construed so as to give the fullest possible public access to public records. (e) Upon a judgment in favor of the petitioner, the court shall order that the records be made available to the petitioner unless: (1) There is a timely filing of a notice of appeal; and (2) The court certifies that there exists a substantial legal issue with respect to the disclosure of the documents which ought to be resolved by the appellate courts. (f ) Any public official required to produce records pursuant to this part shall not be found criminally or civilly liable for the release of such records, nor shall a public official required to release records in such public official’s custody or under such public official’s control be found responsible for any damages caused, directly or indirectly, by the release of such information.
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Out in the Open
(g) If the court finds that the governmental entity, or agent thereof, refusing to disclose a record, knew that such record was public and willfully refused to disclose it, such court may, in its discretion, assess all reasonable costs involved in obtaining the record, including reasonable attorneys’ fees, against the nondisclosing governmental entity. In determining whether the action was willful, the court may consider any guidance provided to the records custodian by the office of open records counsel as created in title 8, chapter 4.
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Out in the Open BEST PRACTICE GUIDELINES FOR RECORDS CUSTODIANS RESPONDING TO REQUESTS FOR PUBLIC RECORDS In Tenn. Code Ann. Section 10-7-505(d), the Tennessee General Assembly declares that the Tennessee Public Records Act (hereinafter “TPRA”) “shall be broadly construed so as to give the fullest possible access to public records.” Courts in Tennessee have opined that unless there is a clear exception provided in law, all records of a governmental entity are to be open to citizens for inspection and/or copying. However, these Courts have also acknowledged the ability of records custodians to adopt reasonable rules governing the manner in which records request are to be made and fulfilled. In an effort to provide records custodians with a resource that can be utilized when responding to public records request made pursuant to the TPRA, the Office of Open Records Counsel (hereinafter “OORC”) in conjunction with the Advisory Committee on Open Government (hereinafter “ACOG”) has developed “Best Practices Guidelines for Records Custodians Responding to Requests for Public Records.” Records custodians must follow the provisions of the TPRA. The guidelines serve as a resource for records custodians, but records custodians are not required to adhere to the guidelines. However, a Court may consider these guidelines in determining whether action by a records custodian is willful [Tenn. Code Ann. Section 10-7-505(g)]. These guidelines will be reviewed at least annually by the OORC. Definitions: Records custodian: the office, official or employee lawfully responsible for the direct custody and care of a public record and is not necessarily the original preparer or producer of the record. A governmental entity may have more than one records custodian.. Public records: defined in Tenn. Code Ann. Section 10-7-503(a)(1): As used in this part and Title 8, Chapter 4, Part 6, “public record or records” or “state record or records” means all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency. Redacted record: a public record otherwise open for public inspection from which protected information has been removed or made obscured prior to release or inspection. Requestor: a Tennessee citizen requesting access to or a copy of a public record. Governmental entity or agency: this includes but is not limited to the state, any political subdivision, agency, institution, county, municipality, city or sub-entity. Note, certain associations, non-profits, and private entities are also subject to the TPRA.
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Out in the Open
Guidelines: 1. To the extent possible, a governmental entity should have a written public records policy properly adopted by the appropriate governing authority. The policy should be applied consistently throughout the various offices, departments, or divisions within a governmental entity; however, when a particular office, department or division has a need for a policy that is distinct from that of the entire governmental entity, a separate policy should be adopted. The policy should include: a. the process for making requests to inspect public records and/or to receive copies of public records (including whether government issued photo ID’s are required and whether written requests for copies are required); b. the process for responding to requests (including the use of required forms); and c. whether and when fees will be charged for copies of public records (including establishment of charges pursuant to the Schedule of Reasonable Charges). The policy should balance the governmental entity’s need to function efficiently and to maintain the integrity of records with the public’s right to access records pursuant to the TPRA. 2. Whenever possible, one person within each governmental office, department, or division should be designated as the public records request coordinator. This person will ensure that requests made pursuant to the TPRA are routed to the appropriate records custodian and that requests are fulfilled in a timely manner. It is suggested that this individual be knowledgeable about the TPRA, as well as the records management system being utilized and any written public records policy that has been adopted. 3. A records custodian should make requested records available as promptly as possible in accordance with Tenn. Code Ann. Section 10-7-503. 4. A records custodian should strive to respond to all records requests in the most economical and efficient manner possible. For example, when labor charges are going to be assessed, qualified staff persons with the lowest hourly wage should be utilized to produce the requested records. 5. To the extent possible, when records are maintained electronically, records custodians should produce records request electronically. Records should be produced electronically whenever feasible as a means of utilizing the most “economical and efficient method of producing” records.
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Out in the Open
6. If a governmental entity maintains a website, records custodians should post as many records, and particularly records such as agendas and minutes from meetings, on the website whenever it is possible to do so. A records custodian may direct a requestor to the website for requested records. However, a requestor may still exercise the right to inspect the public record during regular business hours in the office of the records custodian and/or to receive a copy or duplicate made by the records custodian. 7. Whenever possible and especially in situations where redaction is necessary, once a records request has been completed and there is a reasonable expectation that the same records will be requested in the future, a records custodian should maintain a copy of the redacted records so that any future request can be easily located and copied. 8. When a records custodian receives a records request for a large volume of records and reasonably determines that production of the records should be segmented, the requestor should be notified that the production of the records will be in segments and that a records production schedule will be provided as expeditiously as possible. 9. If a records request is made to a records custodian who is not the appropriate custodian of the requested records, the records custodian when denying the request should make the requestor aware of the appropriate records custodian (if known) whenever possible. However, it should be noted that the statutory time frame for responding to the request is not triggered until the request is made by the requestor to the appropriate records custodian. 10. If a records custodian has provided what is thought to be all records responsive to a public records request and then discovers that records were omitted, the requestor should be made aware of the omission and the records produced as quickly as practicable. 11. Whenever a record is redacted, a records custodian should provide the requestor with the basis for redaction when the redacted records are provided to the requestor. A records custodian is not required however to produce a privilege log. 12. Whenever possible, a records custodian should have a designated supervised space available during normal business hours where requestors can inspect public records. 13. To the extent a records custodian does not have the ability to make copies or duplicates of a requested record, a records custodian should notify the requestor of such and identify the vendor that will be used to produce the requested records, as well as the estimated cost. The inability of a records custodian to internally produce a duplicate or copy of a record does not eliminate the obligation to provide a duplicate or copy if requested.
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Out in the Open 14. When a records custodian is unclear as to the records that are being requested, it is suggested that the custodian contact the requestor in an effort to clarify and/or narrow the request. If, after attempting to clarify the request, the records custodian is still unable to determine what is being requested, the request should be denied based upon the requestor’s failure to sufficiently identify the requested records in accordance with the requirements of the TPRA. 15. For purposes of developing a policy that authorizes the assessment of fees, including charging for labor, it is suggested that a governmental entity consider the following: a. whether waivers or reduction of charges will be permitted, based on: (1)number of copies or minimum charge amount; or (2) type of record: whether the requested document is a document that is produced on a regular basis, requested on a regular basis and is easily accessible (i.e. records that are routinely released and readily accessible, such as agendas for current calendar month meetings and approved minutes from meetings held in the previous calendar month); and b. whether the administrative cost of documenting fees and processing the payment (including internal controls) exceeds the cost of copying and labor. 16. Whenever possible, a records custodian should require and receive either full or partial payment of the estimated charges prior to production of copies of the requested records. 17. If a records custodian is going to segment the production of requested records, the requirement for payment prior to the production of the records also should be segmented. 18. When a governmental entity has the ability to accept multiple forms of payments, that could include cash, checks, credit or debit cards, and money orders, it is suggested that the governmental entity permit such forms of payment for copies of public records. 19. A records custodian must provide requestors with an estimate of the charges to be assessed for copies and labor. Whenever possible, a records custodian should provide the estimate prior to producing the requested copies of records and should itemize the estimate. 20. State records custodians who have questions about how to respond to a records request should contact the Office of Attorney General and Reporter. All other records custodians who have questions about how to respond to a records request should contact the Office of Open Records Counsel.
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Out in the Open SCHEDULE OF REASONABLE CHARGES FOR COPIES OF PUBLIC RECORDS Section 6 of Public Chapter 1179, Acts of 2008 (“Public Chapter 1179”) adds T.C.A. Section 8-4-604(a)(1) which requires the Office of Open Records Counsel (“OORC”) to establish a schedule of reasonable charges (“Schedule of Reasonable Charges”) which may be used as a guideline in establishing charges or fees, if any, to charge a citizen requesting copies of public records under the Tennessee Public Records Act (T.C.A. Sections 10-7-503, et seq.)(“TPRA”). The Schedule of Reasonable Charges has a development date of October 1, 2008. Notification of the development was given to the Tennessee Code Commission on October 31, 2008. This Schedule of Reasonable Charges will be reviewed at least annually by the OORC. The TPRA grants Tennessee citizens the right to request a copy of a public record to which access is granted under state law. Public Chapter 1179 adds T.C.A. Section 10-7-503(a)(7)(A) which expressly prohibits a records custodian from charging a fee for inspection under the TPRA unless otherwise required by law. However, the TPRA in T.C.A. Section 10-7-506 does permit records custodians to charge for copies or duplication pursuant to properly adopted reasonable rules. This Schedule of Reasonable Charges should not be interpreted as requiring a records custodian to impose charges for copies or duplication of public records. If a records custodian determines to charge for copies or duplication of public records, such determination and schedule of charges must be pursuant to a properly adopted rule and evidenced by a written policy authorized by the governmental entity’s governing authority. Application of an adopted schedule of charges shall not be arbitrary. Additionally, excessive fees and other rules shall not be used to hinder access to non-exempt, public records. A records custodian may reduce or waive, in whole or in part, any charge only in accordance with the governmental entity’s properly adopted written policy. Pursuant to Tennessee case law, a records custodian may also require payment for the requested copies or duplication prior to the production of the copies or duplication. Copy Charges • A records custodian may assess a charge of 15 cents per page for each standard 8 ½ x 11 or 8 ½ x 14 black and white copy produced. A records custodian may assess a requestor a charge for a duplex copy that is the equivalent of the charge for two (2) separate copies. • If a public record is maintained in color, the records custodian shall advise the requestor that the record can be produced in color if the requestor is willing to pay a charge higher than that of a black and white copy. If the requestor then requests a color copy, a records custodian may assess a charge of 50 cents per page for each 8 ½ x 11 or 8 ½ x 14 color copy produced.
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Out in the Open • If a records custodian’s actual costs are higher than those reflected above or if the requested records are being produced on a medium other than 8 ½ x 11 or 8 ½ x 14 paper, the records custodian may develop its own charges. The records custodian must establish a schedule of charges documenting “actual cost” and state the calculation and reasoning for its charges in a properly adopted policy. A records custodian may charge less than those charges reflected above. Charges greater than 15 cents for black and white, and 50 cents for color, can be assessed or collected only with documented analysis of the fact that the higher charges actually represent such governmental entity’s cost of producing such material; unless there exists another basis in law for such charges. • The TPRA does not distinguish requests for inspection of records based on intended use, be it for research, personal, or commercial purposes. Likewise, this Schedule of Reasonable Charges does not make a distinction in the charges assessed an individual requesting records under the TPRA for various purposes. Other statutory provisions, such as T.C.A. Section 10-7-506(c), enumerate fees that may be assessed when specific documents are requested for a specific use. Any distinctions made, or waiver of charges permitted, must be expressly permitted in the adopted policy. Additional Production Charges • When assessing a fee for items covered under the “Additional Production Charges” section, a records custodian shall utilize the most economical and efficient method of producing the requested records. • Delivery of copies of records to a requestor is anticipated to be by hand delivery when the requestor returns to the custodian’s office to retrieve the requested records. If the requestor chooses not to return to the records custodian’s office to retrieve the copies, the records custodian may deliver the copies through means of the United States Postal Service and the cost incurred in delivering the copies may be assessed in addition to any other permitted charge. It is within the discretion of a records custodian to deliver copies of records through other means, including electronically, and to assess the costs related to such delivery. • If a records custodian utilizes an outside vendor to produce copies of requested records because the custodian is legitimately unable to produce the copies in his/her office, the cost assessed by the vendor to the governmental entity may be recovered from the requestor. • If the records custodian is assessed a charge to retrieve requested records from archives or any other entity having possession of requested records, the records custodian may assess the requestor the cost assessed to the governmental entity for retrieval of the records.
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Out in the Open Labor Charges • “Labor” is defined as the time reasonably necessary to produce the requested records and includes the time spent locating, retrieving, reviewing, redacting, and reproducing the records. • “Labor threshold” is defined as the labor of the employee(s) reasonably necessary to produce requested material for the first hour incurred by the records custodian in producing the material. A records custodian is not required to charge for labor or may adopt a labor threshold higher than the one reflected above. • A records custodian is permitted to charge the hourly wage of the employee(s) reasonably necessary to produce the requested records above the “labor threshold.” The hourly wage is based upon the base salary of the employee(s) and does not include benefits. If an employee is not paid on an hourly basis, the hourly wage shall be determined by dividing the employee’s annual salary by the required hours to be worked per year. For example, an employee who is expected to work a 37.5 hour work week and receives $39,000 in salary on an annual basis will be deemed to be paid $20 per hour. Again, a records custodian shall utilize the most cost efficient method of producing the requested records. • In calculating the charge for labor, a records custodian shall determine the number of hours each employee spent producing a request. The records custodian shall then subtract the one (1) hour threshold from the number of hours the highest paid employee(s) spent producing the request. The records custodian will then multiply the total number of hours to be charged for the labor of each employee by that employee’s hourly wage. Finally, the records custodian will add together the totals for all the employees involved in the request and that will be the total amount of labor that can be charged. • Example: The hourly wage of Employee #1 is $15.00. The hourly wage of Employee #2 is $20.00. Employee #1 spends 2 hours on a request. Employee #2 spends 2 hours on the same request. Because employee # 2 is the highest paid employee, subtract the one hour threshold from the hours employee #2 spent producing the request. Multiply the number of hours each employee is able to charge for producing the request by that employee’s hourly wage and then add the amounts together for the total amount of labor that can be charged ( i.e. (2x15)+(1x20)= $50.00). For this request, $50.00 could be assessed for labor. Questions regarding this Schedule of Reasonable Charges should be addressed to the OORC: Office of Open Records Counsel 505 Deaderick Street, Suite 1700 James K. Polk Building Nashville, Tennessee 37243 (615) 401-7891, Fax (615) 741-1551 Toll free number: 1-866-831-3750 Email address: open.records@tn.gov
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Out in the Open SAFE HARBOR POLICY FOR RECORDS CUSTODIANS WHO ADHERE TO THE SCHEDULE OF REASONABLE CHARGES AND THE POLICY FOR FREQUENT AND MULTIPLE REQUESTS ESTABLISHED BY THE OFFICE OF OPEN RECORDS COUNSEL Section 6 of Public Chapter 1179, Acts of 2008 (“Public Chapter 1179”) adds T.C.A. Section 8-4-604(a)(3) which requires the Office of Open Records Counsel (“OORC”) to establish a separate policy which provides a safe harbor for records custodians who adhere to the Schedule of Reasonable Charges and/or the Policy for Frequent and Multiple Request established by the OORC. This Policy will be reviewed at least annually by the OORC. This Policy should not be interpreted as requiring a records custodian to impose charges for copies or duplications of public records, nor should it be interpreted as requiring records custodians to aggregate the number of requests made by a single requestor or multiple requestors acting in concert. However, if the records custodian does determine to impose charges for copies or duplications or to aggregate the number of request made, this Policy establishes that those fees are presumed to be reasonable when done in accordance with the policies and guidelines developed by the OORC. Any fee related to the production of a copy or duplication that is charged by an entity required to provide access to public records pursuant to the Tennessee Public Records Act is presumed to be reasonable if the entity adopts and implements either the Schedule of Reasonable Charges or a separate schedule developed in accordance with the provisions of the Schedule of Reasonable Charges. Likewise, the aggregation of frequent and multiple requests for copies of public records and the labor fees charged as the result of that aggregation are presumed to be reasonable if the entity adopts and implements the Frequent and Multiple Request Policy or a separate policy developed in accordance with the provisions of the Frequent and Multiple Request Policy.
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Page 1 of 2
INSPECTION/DUPLICATION OF RECORDS REQUEST Requestor Instructions: To make a request for copies of public records fill in sections 1-5, and sign and date section 9 at the time the request is made. Requestors who are retrieving the requested records from the office of the records custodian in person should not sign and date section 11 until the records are received. Requestors who are having the records emailed or mailed to him/her are not required to sign and date section 11 of the form. Custodian Instructions: For requests to inspect, the records custodian is to fill in sections 1-6,8, and sign and date section 10 at the time the request is made. Section 12 should not be signed and dated until the requestor inspects the records. For requests for copies or duplicates, the records custodian is to fill in sections 6-8 and sign and date section 10 at the time the request is made. Section 12 should not be signed and dated until the records are retrieved by or delivered to the requestor. Note: Tenn. Code Ann. § 10-7-503(a)(7)(A) provides that unless another provision in law specifically requires a written request, a request to inspect public records may not be required to be in writing nor can a fee be assessed for inspection of records.
(FRONT)
1. Name of requestor: _______________________________________________________________________ (Print or Type; Initials of requestor are required for copy requests)
2. (If required) Form of identification provided: Photo ID issued by governmental entity including requestor’s address Other: ___________________________________________________________________________ 3. Requestor’s address and contact information: __________________________________________________ __________________________________________________________________________________________ 4. Request for: inspection/access copy/duplicate [previously inspected on _______ (date) or inspection waived] 5. Record(s) requested: a. Type of record: Minutes Annual Report Annual Financial Statements Budget Employee file Other b. Detailed Description of the record(s) including relevant date(s) and subject matter: __________________________________________________________________________________________ __________________________________________________________________________________________ 6. Request submitted to: ____________________________________________________________________ (Name of Governmental Entity, Office or Agency)
a. Employee receiving request:_________________________________________________________ (Print or Type and Initial)
b. Date and time request received:_______________________________________________________ c. Response: Same day Other ______________________________________________________ 7. Costs (if assessed): a. Number of pages to be copied: _____________ Estimated b. Cost (1) per page letter or legal sized: $____(justification required if more than $0.15) per black and white $_____(justification required if more than $0.50) per color; (2) per page other sized or other medium__________________: $_____(justification required)
Form #CT-0445 Revised 12/10
Inspection/Duplication of Records Request Tenn. Code Ann. § 10-7-503(a)(7)(A)
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Costs continued: c. Estimate of labor costs to produce the copy (for time exceeding 1 hour): _____________________ Labor at $__________ /hour for _____________ hour(s). Labor at $__________ /hour for _____________ hour(s). Labor at $__________ /hour for _____________ hour(s). d. Programming cost to extract information requested:___________________________ e. Method of delivery and cost:____________ Estimated On-site pick-up U.S. Postal Service Other:______________________ f. Estimate of total cost to produce request: ________________________ g. Estimate provided to requestor: in person by U.S.P.S. by phone Other:_______________ 8. Payment: a. Form of payment: Cash Check Other____________________________________________ b. Amount of payment: _______________________________________________________________ c. Date of payment: __________________________________________________________________ d. Actual cost (and adjustment if prepaid):_________________________________________________ 9. _________________________________
_______________________________
10. _________________________________
_______________________________
Signature of Requestor
Signature of Records Custodian
Date Records Requested
Date of Receipt of Request
Delivery/Retrieval of Records 11. _____________________________________ Signature of Requestor
___________________________________ Date Records Retrieved
12. ______________________________________ Signature of Records Custodian
____________________________________ Date Records Retrieved/Delivered Or
_____________________________________ Date Records Inspected by the Requestor
Form #CT-0445 Revised 12/10
Inspection/Duplication of Records Request Tenn. Code Ann. § 10-7-503(a)(7)(A)
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Out in the Open INSTRUCTIONS Records Request Denial Letter Records Production Letter For Use by Records Custodians
For help, call 615.401.7891, toll free 1.866.831.3750 or e-mail open.records@tn.gov Tennessee Code Annotated ยง 10-7-503(a) provides the following: (2)(B) The custodian of a public record or the custodian's designee shall promptly make available for inspection any public record not specifically exempt from disclosure. In the event it is not practicable for the record to be promptly available for inspection, the custodian shall within seven (7) business days: (i) Make such information available to the requestor; (ii) Deny the request in writing or by completing a records request response form developed by the office of open records counsel. The response shall include the basis for the denial; or (iii) Furnish the requestor a completed records request response form developed by the office of open records counsel stating the time reasonably necessary to produce such record or information.
The Records Request Denial Letter is the response form that can be used to deny a records request for access or copies. The Letter should be printed on letterhead or sufficient identifying and contact information should be provided. Be certain to select the appropriate basis on which the request is being denied. When the record exists but access is not available to the citizen, use the fourth option to indicate the basis on which access is denied. Although a written denial is required by the Act, you are not required to use this exact form. The Records Production Letter is the response form to be used when the record cannot be made available within seven (7) business days. You are required by the Act to use this form Letter. The form Letter should be printed on letterhead or sufficient identifying and contact information should be provided. Be certain to add the following information: 1. Insert the date on which the request was received. 2. Indicate whether it is a request for inspection/access or for copies or both. 3. Insert the general description of the records requested. 4. Insert the date or estimated time reasonably necessary to produce the request. 5. Insert contact name and information of signatory and other contact if appropriate.
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Out in the Open RECORDS PRODUCTION LETTER (Insert Agency Name and Address) (Insert Date)
Dear Sir or Madam: On (insert date) this Office received your open records request to inspect/receive copies of (insert type of records). Section 1 of Public Chapter 1179, Acts of 2008 amends Tennessee Code Annotated § 10-7-503(a) and provides the following: (2)(B) The custodian of a public record or the custodian's designee shall promptly make available for inspection any public record not specifically exempt from disclosure. In the event it is not practicable for the record to be promptly available for inspection, the custodian shall within seven (7) business days: (i) Make such information available to the requestor; (ii) Deny the request in writing or by completing a records request response form developed by the office of open records counsel. The response shall include the basis for the denial; or (iii) Furnish the requestor a completed records request response form developed by the office of open records counsel stating the time reasonably necessary to produce such record or information. [emphasis added] This Office is currently in the process of retrieving, reviewing, and/or redacting the requested records. In accordance with the above-cited law, this letter is being sent to inform you that either the records you have requested to inspect/receive copies of will be available or a determination will be made regarding the accessibility of the requested records by (insert reasonably necessary time to produce the records). Additional time is necessary as it is a record custodian’s responsibility under state law to ensure that any confidential information contained within the requested records has been removed prior to providing access to the records. If you have any additional questions please contact (insert contact person and phone number). Sincerely, (Record Custodian’s signature and title with contact information)
Records Production Letter Tenn. Code Ann. § 10-7-503(a)(2)(B)(iii) as amended by Section 1 of Public Chapter 1179, Acts of 2008
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Out in the Open
RECORDS REQUEST DENIAL LETTER (Insert Agency Name and Address) Insert Date
Dear Sir or Madam: On
this Office received your open records request to inspect/receive copies of insert type of records . After reviewing the request, this Office is unable to provide you with either all or part of the requested record(s). The basis for this denial is: insert date
No such record(s) exists. This office is not the records custodian for the requested record(s). Additional information is needed to identify the requested record(s):________ ______________________________________________________________ ______________________________________________________________ _______________________________________________________________ The following law (citation and brief description why access denied): Tenn. Code Ann. Section: _____________________________________ Court Rule:_________________________________________________ Common Law Provision:______________________________________ Federal Law (HIPAA, FERPA, etc.):_____________________________ If you have any additional questions please contact insert contact person and phone number . Sincerely,
(Record Custodian’s name and title)
Records Request Denial Letter Tenn. Code Ann. § 10-7-503(a)(2)(B)(ii) Revised effective 1/1/2009 Form #CT-0447
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Out in the Open NOTICE OF AGGREGATION OF MULTIPLE REQUESTORS
Mail completed form to:
Office of Open Records Counsel Suite 1600, James K. Polk State Office Building 505 Deaderick Street Nashville, Tennessee 37243 (615) 741-1551 (fax) or Open.records@state.tn.us (e-mail)
Records Custodian: ____________________________________________________________ (Name of Governmental Entity, Office or Agency)
Employee/official authorizing aggregation:_____________________________________ (Name and title)
Address and phone number:_________________________________________________ ________________________________________________________________________ Other Offices or Custodians included in aggregation:_____________________________ ________________________________________________________________________ ________________________________________________________________________ (________) of Requestors being aggregated: (Number)
Requestor’s name, address and contact information: ________________________________________________________________________ ________________________________________________________________________ Requestor’s name, address and contact information: ________________________________________________________________________ ________________________________________________________________________ Requestor’s name, address and contact information: ________________________________________________________________________ ________________________________________________________________________ Requestor’s name, address and contact information: ________________________________________________________________________ ________________________________________________________________________ Requestor’s name, address and contact information: ________________________________________________________________________ ________________________________________________________________________ Requestor’s name, address and contact information: ________________________________________________________________________ ________________________________________________________________________
NOTICE OF AGGREGATION OF MULTIPLE REQUESTORS FORM T.C.A. Section 8-4-604(a)(2) Page 1 of 2 Form #CT-0444
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Out in the Open
Explanation of basis for aggregation and description of scope (records included/excluded): ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ Requestors have been notified that a properly adopted aggregation policy exists, that the decision to aggregate has been made, and that there is a right to appeal the decision to the Office of Open Records Counsel.
_________________________________ Signature of Records Custodian, date _________________________________ Signature of Requestor, date _________________________________ Signature of Requestor, date _________________________________ Signature of Requestor, date _________________________________ Signature of Requestor, date
NOTICE OF AGGREGATION OF MULTIPLE REQUESTORS FORM T.C.A. Section 8-4-604(a)(2) Page 2 of 2 Form #CT-0444
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Employee Rights and Relations
Employee Rights and Relations Collaborative Conferencing
I
n 2011, the Tennessee General Assembly passed the Professional Educators Collaborative Conferencing Act (PECCA) which repealed the EPNA. All contracts under collective bargaining have expired or will expire on or before June 1, 2014. Under the law, if a majority of educators in a district choose to participate in collaborative conferencing, they will have a seat (through a representative) across the table from board members. This “panel” will meet and confer and attempt to agree on terms and conditions of employment. However, if the parties cannot agree, the local board of education may make the final decision. This process ensures that teachers have a voice, regardless of membership in a specific association, while allowing local boards of education to ultimately make the best decisions for their students, teachers, and schools.
Initiating Collaborative Conferencing Between October 1st and November 1st of each year, 15% of educators in a school system may request, in writing, to engage in collaborative conferencing. Upon receiving the requests, the local school board must appoint board members and an equal number of teachers to serve on a special question committee. The purpose of this committee is to hold a poll to determine if a majority of educators desire to participate in collaborative conferencing. The poll consists of two questions. First, educators will decide if they wish to participate in the process. If “yes”, the next question allows them to select whether they would like a representative of a professional association to represent them or an unaffiliated educator. If “no,” the next question allows them to select a preferred professional association to represent them in the event a majority of educators choose “yes” in question one. For this second question, an educator may also select unaffiliated or none of the above. A majority of the educators in the school system must vote “yes” to the first question in order to initiate collaborative conferencing. If a majority chooses to participate, the local school board will appoint between 7-11 persons to serve as management personnel and represent the board in this process. The board’s team may consist of board members, central office staff, supervisors, principals, or assistant principals. The educators must be represented by the same number of persons. The results of the poll shall proportionally determine how these representatives are chosen. For example, if a professional association was selected by 50% of voters, then half of the panelists will be appointed by that association. If 50% selected unaffiliated, then the special question committee will meet together and appoint these representatives. To have a seat at the table, each group (whether a professional association or unaffiliated) must receive at least 15% of the votes.
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Employee Rights and Relations The educators appointed to this panel serve for three years. In the event of a vacancy, the original appointing body names the replacement. Prior to the expiration of the terms of the representatives, a new poll must be conducted to determine if a majority of educators desire to continue the process of collaborative conferencing.
Conducting Collaborative Conferencing Once initiated, the board’s team and the professional employee representatives will meet and discuss the following terms and conditions of employment: - Salaries and wages, - Grievance procedures, - Insurance, - Fringe benefits, - Working conditions, - Leave, and - Payroll deductions No other terms may be discussed through collaborative conferencing. In passing this law, the General Assembly explicitly prohibited the following items from the process: - Differentiated pay plans or incentive compensation programs, - Expenditures of federal, state, local or private grants, - Evaluations of professional employees, - Staffing decisions and state board of education or local board of education policies relating to innovative educational programs, innovative high school programs, virtual education programs, and other programs for innovative schools or school districts that may be enacted, - Personnel decisions, such as transfers, assignments and filling vacancies, and none of these decisions may be based on seniority or length of service, and - Payroll deductions for political activities As a result of meeting and conferring on the required items, the parties shall enter into a memorandum of understanding (MOU) which must not exceed three years in duration. The MOU is binding, and it will cover any or all of the subjects of collaborative conferencing in which the parties agree. While this process has been created, the language of the law is very clear in that it does not require collaborative conferencing, agreement on any terms and conditions of employment, or a memorandum of understanding. Absent an MOU, the local board of education has the authority to address such terms through board policy.
School Law
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Employee Rights and Relations
Moving Forward As Tennessee abandons a culture of mandatory collective bargaining, it is TSBA’s sincere hope that we will begin one of cooperation. The mentality of management and employees waging war with one another must be abandoned. An effective teacher is the best resource we have in educating a child. Superintendents and school board members realize this fact and want to recruit, retain and reward these professionals. Everyone throughout the system must work together to advance student achievement and serve the needs of all students. We all have the same goals, and we’re playing on the same team.
Teacher/Principal Evaluations
I
n July 2011, Tennessee became one of the first states in the country to implement a comprehensive, student outcomes-based, statewide educator evaluation system. This implementation was a key tenet of Tennessee’s First to the Top Act, adopted by the General Assembly with bipartisan support during 2010’s extraordinary session under the backdrop of the federal Race to the Top competition. This legislation established the parameters of a new teacher and principal evaluation system and committed to implementation during the 2011-12 school year.
Teachers With Individual Growth Scores •
•
50 percent of the evaluation to be comprised of student achievement data— •
35 percent based on student growth as represented by the Tennessee Value-Added Assessment System (TVAAS) or a comparable measure
•
15 percent based on additional measures of student achievement adopted by the State Board of Education and chosen through mutual agreement by the educator and evaluator.
50 percent of the evaluation is determined through qualitative measures such as teacher observations, student perception surveys, personal conferences, and review of prior evaluations and work.
Teachers Without Individual Growth Scores •
40 percent of the evaluation to be comprised of student achievement data— •
25 percent based on school-wide or system-wide student growth as represented by the Tennessee Value-Added Assessment System (TVAAS)
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Employee Rights and Relations •
•
15 percent based on additional measures of student achievement adopted by the State Board of Education and chosen through mutual agreement by the educator and evaluator.
60 percent of the evaluation is determined through qualitative measures such as teacher observations, student perception surveys, personal conferences, and review of prior evaluations and work
New Teacher Evaluation Tiers
Tier 5
Significantly Above Expectations
Tier 4
Above Expectations
Tier 3
Meeting Expectations
Tier 2
Below Expectations
Tier 1
Significantly Below Expectations
Approved Instruments – as approved by the State Board of Education TEAM – Tennessee Educator Acceleration Model – selected by the Teacher Evaluation Advisory Committee (TEAC) - state model. TIGER – Teacher Instructional Growth for Effectiveness and Results - Developed by the Association of Independent and Municipal Schools - Utilized by ~13 school districts. TEM – Teacher Effectiveness Model – Used in former Memphis City Schools Project COACH – utilized by Hamilton and Bradley Counties
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Employee Rights and Relations Recent Changes in Law Regarding Evaluations 2015 – Public Chapter 158 This law modifies the evaluation criteria until the 2017-2018 school year. 2014 – Public Chapter 885 If the teacher or principal being evaluated and the person or persons responsible for conducting the evaluation do not agree on the measures that are to be used, the teacher or principal shall choose the evaluation measures. The evaluation measures shall be verified by the department of education to ensure that the evaluations correspond with the teaching assignment of each individual teacher and the duty assignments of each individual principal. 2013 – Public Chapter 105 This law deleted a provision that prohibited data of special education students from being used in a teacher’s evaluation. 2012 – Public Chapter 614 This law requires an LEA to forward the results of a teacher’s evaluations to another LEA upon a teacher’s transfer, and the new LEA may elect to recognize the results. 2012- Public Chapter 811 This law specifies that all records containing the results of individual teacher evaluations are to be treated as confidential and are not be open to the public; specifies that the LEA, public charter school, state board of education, or department of education may access and utilize such records as required to fulfill their lawful functions.
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Employee Rights and Relations
TENNESSEE STATE BOARD OF EDUCATION TEACHER AND PRINCIPAL EVALUATION POLICY
5.201
Teacher and Principal Evaluation Policy Guidelines and Criteria Local boards of education shall develop or adopt evaluation models for teachers and principals. To be approved, these evaluation models must meet the following guidelines and criteria. General Guidelines (1)
The primary purpose of annual teacher and principal evaluations is to identify and support instruction that will lead to high levels of student achievement.
(2)
Evaluations will be used to inform human capital decisions, including, but not limited to individual and group professional development plans, hiring, assignment and promotion, tenure and dismissal, and compensation.
(3)
Annual evaluations will differentiate teacher and principal performance into five effectiveness groups according to the individual educator’s evaluation results. The five effectiveness groups are: significantly above expectations, above expectations, at expectations, below expectations, and significantly below expectations. The Department of Education will monitor observation scores throughout the year and enforce consistent application of standards across districts. Upon the conclusion of the school year and relevant data collection, the department will publish evaluation results by district. Districts and schools that fall outside the acceptable range of results, subject to student achievement scores, will be subject to additional training and monitoring by the department as outlined in section (4).
(4)
For the purposes of these guidelines, performance level discrepancies between individual student achievement growth scores and observation scores of three or more will be considered outside the acceptable range of results. The 10 percent of schools with the highest percentage of teachers falling outside the acceptable range of results will be required to participate in additional training and support as determined by the department. Districts that have 20 percent or more of their teachers fall outside the acceptable range of results will, as determined by the commissioner, lose their ability to apply for or implement alternate evaluation models or TEAM Flexibility the following school year.
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Local Evaluation of Teachers, Principals and Non-Instructional, Certified Staff for the 2015-16 through 2017-18 School Years. The Tennessee Teaching Evaluation Enhancement Act (Tenn. Code Ann. § 49-1-302) adjusts the current weighting of student growth data in an educator’s evaluation to lessen the evaluation score impact of new assessments in English language arts and math (called TNReady), as well as social studies and science. The Act provides a phase-in approach for how TNReady assessments administered in school years 2015-16 through 2017-18 will be weighted in an educator’s evaluation, due to the testing transition from the TCAP assessment to TNReady. Details of the weighting implications of this Act are contained in Appendix A. Following the 2017-18 school year, weighting will revert to the original weightings outlined below. Local Evaluation of Teachers, Principals and Non-Instructional, Certified Staff (Original Weightings) Fifty percent of the evaluation criteria shall be comprised of student achievement data, including thirty-five percent based on student growth data and fifteen percent based on other measures of student achievement. The remaining fifty percent of the evaluation criteria shall be based on a rating using the qualitative appraisal instrument contained in each approved evaluation model. (1)
Fifty percent student achievement data. This portion of the evaluation model will use multiple data sources to evaluate educators’ effectiveness in affecting student learning growth. (a)
Thirty-five percent student growth measures. 1.
For teachers with individual value-added scores, the student growth measures shall be comprised of TVAAS scores. For teachers, librarians, counselors and other groups of educators who do not have individual TVAAS scores, LEAs will choose from a list of options that have been shown capable of measuring student growth. The list of options will be approved by the Department of Education prior to the start of each school year. The current list of options includes: K-2 assessment Fine Arts Portfolio Model World Languages Portfolio Model Physical Education Student Growth Model Pre-K/Kindergarten Portfolio Model
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In order to implement one of the alternative growth models above LEAs must: (i) Provide training to evaluators to assess whether the students instructed by the educator being evaluated have demonstrated sufficient growth for the chosen measure, and (ii)
Implement the state’s multiple rating categories to measure levels of performance for the chosen measure.
The Department of Education will continually monitor and revise the list of options under this category based on increasing availability of higherquality measures of performance. Additionally, the Department of Education will work to develop valid and reliable student growth measures for those areas that do not currently have them. In lieu of the availability of growth measures for all educators without individual TVAAS scores, school-level value-added scores will be the standard student growth measure while other growth measures are in development.
(b)
2.
For principals and other school administrators who spend at least fifty percent of their time on administrative duties, the student growth measure will be school-level value-added scores.
3.
Districts have the option to allow teachers who score a level 4 or 5 on individual growth to use their individual growth score for the entirety of their overall level of effectiveness.
Fifteen percent other measures of student achievement. 1.
2.
Adopted: 09/29/1994 Revised: 07/24/2015
Principals and assistant principals, classroom teachers, librarians and all other educators in grades K-8 and 9-12 will select, in collaboration with the evaluator, from the following list of measures. The agreed-upon measure should be a measure aligned as closely as possible to the educator’s primary responsibility. If the two parties do not agree on a measure, the educator being evaluated will select a measure. For a comprehensive list of the approved achievement measure options, please see the Achievement Measures Worksheet included in Appendix C. Principals and teachers in the top three quintiles for student growth may elect to use their growth scores for fifty percent of their evaluation in lieu of selecting another achievement measure for the fifteen percent. The Department of Education will continually monitor and make recommendations to the State Board of Education for revising the menu of options under this category based on increasing availability of higher quality measures of performance.
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5.201
Fifty percent other mandatory criteria. This portion of the evaluation model will use multiple data sources to evaluate educator practice against the qualitative appraisal instrument contained in each approved evaluation model. One possible data source can be a State Board of Education approved student survey instrument weighted in accordance with the approved observation model. See Appendix B for the approval process for student survey instruments. (a)
(b)
For all classroom teachers and non-instructional, certified staff ( other than principals and assistant principals who spend at least fifty percent of their time on administrative duties), the State Board of Education will approve an evaluation model by which to evaluate all educators’ effectiveness. In lieu of the approved model, LEAs may select another model from an approved list. The list of currently approved options includes: Tennessee Educator Acceleration Model (TEAM) The Teacher Instructional Growth for Effectiveness and Results (TIGER) Project COACH Teacher Effectiveness Model (TEM) The Achievement Framework for Excellent Teaching (AFET) All approved models must contain a qualitative appraisal instrument that addresses the following domains: Planning, Environment, Professionalism, and Instruction. All approved models shall include, but are not limited to: a review of prior evaluations, personal conferences to discuss strengths, weaknesses and remediation, and classroom or school observation visits. Principals and assistant principals who spend fifty percent or more of their time on administrative duties will be evaluated according to an approved evaluation model based on the Tennessee Instructional Leadership Standards (TILS) and approved by the State Board of Education. The evaluation process will also include a review of the quality of the principals’ teacher evaluations. Principal and assistant principal qualitative appraisals should include school climate and/or teaching and learning conditions surveys. The Department of Education will develop a list of approved surveys that LEAs can use. The list of currently approved evaluation models includes: Tennessee Educator Acceleration Model (TEAM) Project COACH Administrator Achievement School District Leadership Framework
(c)
All evaluations shall be conducted by certified evaluators. To be certified, an evaluator must meet certification requirements as determined by the Department of Education.
(d)
All educators ( other than apprentice teachers, teachers with individual student
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ester, for a Employee Rights and Relations t half all
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growth scores who earned a level five on such growth scores or final evaluation in the preceding school year, and administrators) will have a minimum of four observations,* with at least two domains observed in a given sem minimum total of at least sixty minutes each school year. At leas of observations will be unannounced. Apprentice teachers (other than those with individual student growth scores who earned a level five on such growth scores or final evaluation in the preceding school year) will have at least six observations,* with at least three domains observed in a given semester, for a minimum total of at least ninety minutes each school year. Any educator with individual student growth scores who earned a level five on such growth scores or final evaluation in the preceding school year will have a minimum of one observation that includes each of the three domains, as well as two walk-through observations during the second semester. Any educator with a professional license and with individual student scores who earned a level one on such growth scores or final evaluation in the preceding school year will have the same minimum number of observations as an educator with an apprentice license. An LEA may choose to allow principals to conduct a required observation relative to the instructional domain in conjunction with a required observation relative to the planning or environment domain, provided the requisite minimum time, semester, distribution and notice (announced versus unannounced) are met. Licensure Status Previous Growth or Minimum Required Final Evaluation Score Observations*
Minimum Required Observations Per Domain*
Six observations, with a minimum of three domains observed in each semester
3 Instruction 2 Planning 2 Environment
One formal observation covering all domains first semester; two walk-throughs second semester
1 Instruction 1 Planning 1 Environment
1
Six observations, with a minimum of three domains observed in each semester
3 Instruction 2 Planning 2 Environment
2-4
Four observations with a minimum of two domains observed in each semester
2 Instruction 1 Planning 1 Environment
1-4 Apprentice 5
Professional
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TENNESSEE STATE BOARD OF EDUCATION TEACHER AND PRINCIPAL EVALUATION POLICY Minimum Required Licensure Status Previous Growth or Final Evaluation Score Observations*
5.201 Minimum Required Observations Per Domain*
1 Instruction One formal observation 1 Planning covering all domains first 5 1 Environment semester; two walk-throughs second semester *NOTE: As per the policy revision adopted by the SBE in November 2011, an LEA may choose to allow principals to conduct an observation of the instruction domain in conjunction with an observation of either environment or planning domain. 1.
Principals will have at least two onsite observations annually, conducted by the director of schools or designee.
2.
The Department of Education will provide user friendly, manageable standardized forms to document observation visits and/or personal conferences. The approved forms will provide space for feedback in enough detail to allow the teacher or principal to understand specific areas of strength and areas for development. LEAs that elect to use an alternative appraisal instrument for evaluation must submit the observation recording forms to the Department of Education for approval.
3.
Evaluators will provide written feedback within one week of each observation visit to the educator, and schedule an in-person debrief with the educator within one week of each observation visit. At the end of each school year, evaluators will rate educators based on the selected evaluation model using notes collected through observation visits, conferences, a review of progress made in relation to the prior year’s evaluation (when available) and other means. Approved Evaluation Models The approved evaluation model for non-public school teachers is the state’s evaluation framework used by all schools prior to 2011-12 school year. Any charter or state agency school interested in proposing its own evaluation model may submit an application for approval to the Department of Education. The Commissioner of Education shall have the authority to approve the use of the evaluation model. Adopted: 09/29/1994 Revised: 07/24/2015
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TENNESSEE STATE BOARD OF EDUCATION TEACHER AND PRINCIPAL EVALUATION POLICY
5.201
Local-Level Grievance Procedure (1) Purpose. (a)
(2)
To comply with Tenn. Code Ann. § 49-1-302 which requires, “the development of a local-level evaluation grievance procedure to provide a means for evaluated teachers and principals to challenge only the accuracy of the data used in the evaluation and the adherence to the evaluation policies adopted by the State Board of Education.” 1.
“Accuracy of the data” means only that the data identified with a particular teacher is correct.
2.
Minor procedural errors in implementing the evaluation model shall be resolved at the lowest possible step in the grievance procedure but shall not constitute grounds for challenging the final results of an evaluation. Minor procedural errors shall be defined as errors that do not materially affect or compromise the integrity of the evaluation results. The final results of an evaluation may only be challenged if the person being evaluated can demonstrate, no later than during step II of the grievance procedure, that the procedural errors made could materially effect or compromise the integrity of the evaluation results. The Department of Education shall provide guidance on which procedural errors may materially effect of compromise the results of the evaluation.
(b)
To efficiently and fairly resolve grievances regarding procedural errors in the evaluation process, not to address disputes regarding employment actions taken based on the results of an evaluation. More significant due process rights are provided pursuant to state law to teachers when actual employment actions are taken.
(c)
To ensure evaluations are fundamentally fair because correct procedures have been followed.
(d)
To address grievances objectively, fairly, and expeditiously by resolving them at the lowest possible step in the procedure.
(e)
To provide teachers and principals a process for resolving grievances without fear, discrimination, or reprisal.
Responsibility. (a)
LEAs shall be responsible for the proper effectuation of this policy at the local level.
(b)
Local Boards of Education shall charge Directors with the responsibility for
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ensuring that all teachers, principals and administrators are aware of the provisions of this policy, including the identification of the administrator designated to conduct Step I of this procedure. (3)
Basic Standards. (a)
To resolve grievances as expeditiously as possible pursuant to section (1)(d) above, grievances may be filed at the end of each of the three components of the evaluation model – 1) qualitative appraisal; 2) student growth measures; and 3) other measures of student achievement. A grievance must be filed no later than fifteen (15) days from the date teachers and principals receive the results for each component, otherwise the grievance will be considered untimely and invalid. Nothing shall preclude a teacher or principal from filing a grievance at any time prior to the deadlines stated herein.
(b)
The State Department of Education or LEAs may develop and make available to teachers standard grievance forms. No grievance may be denied because a standard form adopted by an LEA has not been used as long as the components required by this policy are included.
(c)
At the informal hearing before the Director of Schools, an attorney or a representative of an employee may speak on behalf of the employee.
(d)
An attorney may represent a grievant before the local board of education, which is the final step of this procedure. The grievant and the local board of education may have counsel present at discussions prior to the final step.
(e)
Each grievance submitted at every step of the process provided below shall contain:
1.
the teacher or principal’s name, position, school, and additional title if any;
2.
the name of the teacher or principal’s immediate supervisor;
3.
the name of the evaluator/reviewer;
4.
the date the challenged evaluation was received;
5.
the evaluation period in question;
6.
the basis for the grievance;
7.
the corrective action desired by grievant; and
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TENNESSEE STATE BOARD OF EDUCATION TEACHER AND PRINCIPAL EVALUATION POLICY
8. sufficient facts or other information to begin an investigation. A failure to state specific reasons shall result in the grievance being considered improperly filed and invalid.
(f) (g) (4)
5.201
All student achievement data used in evaluations must be made available to individual educators prior to the completion of their evaluations. Procedures. Grievances shall be processed by working through the three steps to finality as follows:
(a)
(b)
Step I—Evaluator 1.
Written grievance submitted to evaluator pursuant to the timeline listed in Section (3) (a).
2.
Administrative investigation and fact finding.
3.
Decision clearly communicated in writing to grievant within fifteen (15) days of receipt of the complaint.
4.
To allow disputes to be resolved at the lowest level possible, the evaluator may take any action necessary, based on the circumstances, to immediately correct any procedural errors made in the evaluation process.
Step II—The Director of Schools or his/her designee who shall have had no input or involvement in the evaluation for which the grievance has been filed. 1.
Written grievance and prior step decision submitted to the Director of Schools or his/her designee within fifteen (15) days of receipt of decision from Step I. The designee cannot be used in cases involving a principal’s evaluation.
2.
Informal discussion or hearing of facts, allegations, and testimony by appropriate witnesses as soon as practical.
3.
Investigation, fact finding, and written final decision communicated to grievant in writing within fifteen (15) days of discussion.
4.
To allow disputes to be resolved at the lowest level possible, the Director of Schools may take any action necessary, based on the circumstances, to immediately correct any procedural errors made in the evaluation process.
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TENNESSEE STATE BOARD OF EDUCATION TEACHER AND PRINCIPAL EVALUATION POLICY (c)
5.201
Step III—Local Board of Education 1.
Teachers and principals may request a hearing before the local board of education by submitting a written grievance and all relevant documentation to the local board of education within fifteen (15) days of receipt of decision from Step II.
2.
The board of education, based upon a review of the record, may grant or deny a request for a full board hearing and may affirm or overturn the decision of the Director of Schools with or without a hearing before the board.
3.
Any hearing granted by the board of education shall be held no later than thirty (30) days after receipt of a request for a hearing.
4.
The local board of education shall give written notice of the time and place of the hearing to the grievant, Director of Schools and all administrators involved.
5.
The local board of education’s decision shall be communicated in writing to all parties, no later than thirty (30) days after conclusion of the hearing.
6.
The local board of education shall serve as the final step for all grievances.
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Appendix A: Tennessee Teaching Evaluation Enhancement Act The Tennessee Teaching Evaluation Enhancement Act (T.C.A. § 49-1-302) adjusts the current weighting of student growth data in an educator’s evaluation to lessen the evaluation score impact of new assessments in English language arts and math (called TNReady), as well as social studies and science. The Act provides a phase-in approach for how TNReady assessments administered in school years 2015-16 through 2017-18 will be weighted in an educator’s evaluation, due to the testing transition from TCAP to TNReady. Please see the charts below for the appropriate weightings.
Tested Teachers with Prior Individual Growth Data
Tested Teachers without Prior Individual Growth Data
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TEACHER AND PRINCIPAL EVALUATION POLICY Non-Tested Teachers Using a Portfolio Growth Model
Portfolio Score 35% Observation 50%
Achievement Measure 15%
Non-Tested Teachers
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Appendix B: Student Surveys Process for approval of student survey instruments by the State Board of Education:
Step 1: Potential vendor secures an LEA to pilot their instrument. Step 2: Vendor works with TDOE to determine the appropriate number of survey administrations and/or pilot participants. Step 3: Vendor shares data generated from pilot with TDOE for analysis. Step 4: Vendor proposes rating scale based on pilot data. Step 5: TDOE reviews instrument, rating scale, and analyzes pilot data. Step 6: TDOE recommends survey vendors to State Board of Education for final approval. Step 6: LEAs may use the survey instrument for evaluative purpose in the following school year.
Adopted: 09/29/1994 Revised: 07/24/2015
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TENNESSEE STATE BOARD OF EDUCATION TEACHER AND PRINCIPAL EVALUATION POLICY
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Appendix C: Achievement Measure Worksheet
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APPROVED ACHIEVEMENT MEASURES: ACHIEVEMENT MEASURE TYPES State Assessments TCAP: Science (system TCAP: ALT (classroom level) EOC: Biology I (system level) level) TCAP: ALT (grade level) TCAP: Science (classroom EOC: Biology I (classroom TCAP: ALT (school level) level) level) TCAP: WIDA ACCESS TCAP: Science (grade level) EOC: Biology I (grade level) (classroom level) TCAP: Science (school TCAP: WIDA ACCESS (grade EOC: Biology I (school level) level) level) TCAP: WIDA ACCESS (school EOC: Chemistry I (system level) level) EOC: Chemistry I (classroom level) EOC: Chemistry I (grade level) EOC: Chemistry I (school level)
School-Wide: Composite School-Wide: Literacy School-Wide: Numeracy School-Wide: Literacy and Numeracy School-Wide: Science School-Wide: Social Studies School-Wide: SAT 10 Composite School-Wide: SAT 10 Literacy School-Wide: SAT 10 Numeracy School-Wide: SAT 10 Literacy and Numeracy School-Wide: TCAP Composite School-Wide: TCAP Literacy School-Wide: TCAP Numeracy School-Wide: TCAP Literacy and Numeracy School-Wide: TCAP Science
Adopted: 09/29/1994 Revised: 07/24/2015 0 0 0 0 0 0 0 0 0 7 07/25/2
School-Wide TVAAS School-Wide: CTE Concentrator School-Wide: CTE Concentrator: Literacy School-Wide: CTE Concentrator: Numeracy School-Wide: CTE Concentrator: Literacy and Numeracy School-Wide: CTE Concentrator: Science School-Wide: CTE Concentrator: Social Studies School-Wide: CTE Students School-Wide: CTE Students: Literacy School-Wide: CTE Students: Numeracy School-Wide: CTE Students: Literacy & Numeracy School-Wide: CTE Students: Science School-Wide: CTE Students: Social Studies
System-Wide: Composite System-Wide: Literacy System-Wide: Numeracy System-Wide: Literacy and Numeracy System-Wide: Science System-Wide: Social Studies System-Wide: CTE Concentrator System-Wide: CTE Concentrator: Literacy System-Wide: CTE Concentrator: Numeracy System-Wide: CTE Concentrator: Literacy and Numeracy System-Wide: CTE Concentrator: Science System-Wide: CTE Concentrator: Social Studies System-Wide: CTE Students System-Wide: CTE Students: Literacy Page 15 of 17 5.201 Teacher and Principal Evaluation Policy
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School-Wide: TCAP Social Studies School-Wide: EOC Composite School-Wide: EOC Literacy School-Wide: EOC Numeracy School-Wide: EOC Literacy and Numeracy School-Wide: EOC Science School-Wide: EOC Social Studies School-Wide: TCAP/EOC Composite School-Wide: TCAP/EOC Literacy School-Wide: TCAP/EOC Numeracy School-Wide: TCAP/EOC Literacy and Numeracy School-Wide: TCAP/EOC Science School-Wide: TCAP/EOC Social Studies
System-Wide: CTE Students: Numeracy System-Wide: CTE Students: Literacy and Numeracy System-Wide: CTE Students: Science System-Wide: CTE Students: Social Studies
ACT/SAT Suite of Assessments
ACT PLAN EXPLORE SAT PSAT AIMS Web Children's Progress Academic Assessment Istation DIBELS Discovery Ed/ThinkLink DRA MAP WIDA ACCESS Linguafolio
IB Assessment 0 0 AP-Art 0 0 0 0History 0 0 0 7 07/25/2 Adopted: 09/29/1994 Revised: 07/24/2015
“Off-the-Shelf” Assessments STAMP NOELLA National Latin Exam National Greek Exam Michigan Model STAR Early Literacy STAR Reading STAR Math SAT 10
AP/IB/NIC Suites of Assessments AP-Macroeconomics AP-Microeconomics
Terranova Fountas-Pinell GOLD Assessment Kindergarten Readiness Scholastic Suite of Assessments Learning.com Voyager Limelight Classworks Other
NIC-ADDA - Drafting (American Page 16 of 17 5.201 Teacher and Principal Evaluation Policy
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AP-Biology AP-Calculus AB AP-Calculus BC AP-Chemistry AP-Chinese Language and Culture AP-Computer Science A AP-English Language AP-English Literature AP-Environmental Science AP-European History AP-French Language and Culture AP-German Language and Culture AP-Government & Politics, Comp. AP-Government & Politics, U.S. AP-Human Geography AP-Italian Language and Culture AP-Japanese Language and Culture AP-Latin
AP-Music Theory AP-Physics B AP-Physics C AP-Psychology AP-Spanish Language AP-Spanish Literature and Culture AP-Statistics AP-Studio Art AP-U.S. History AP-World History
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Design Drafting Association NIC-ASE (Automotive Service Excellence) NIC-Autodesk NIC-AWS (American Welding Society) Certified Welder NIC-Certified Nursing Assistant NIC-Certified Pharmacy Technician NIC-First Responder NIC-HVAC Excellence NIC-I-CAR NIC-NCCER (National Center for Construction Education and Research) NIC-NIMS (National Institute for Metalworking Skills), AWS (American Welding Society) Certified Welder in FCAS, GTAW, GMAW, SMAW or CWE or CWI) NIC-TN Board of Cosmetology Exam NIC-Web Design Specialist Certification NIC-Web Foundations Associate Other
Graduation Rate
Graduation Rate
Adopted: 09/29/1994 Revised: 07/24/2015 0 0 0 0 0 0 0 0 0 7 07/25/2
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Tenure Reform On April 12, 2011, Governor Bill Haslam signed Public Chapter 70 into law and officially reformed teacher tenure in Tennessee. Tenure laws in Tennessee date back to 1951 and have gone relatively unchanged. Under the old process, teachers had to serve three years in a probationary status. These three years would provide an opportunity for a teacher to grow professionally and enable a school system and administrators to determine whether or not a teacher should be granted tenure. At the conclusion of this probationary period, the director of schools had two options - recommend the teacher for tenure or non-renew the teacher’s employment. If recommended, the local board of education would vote on whether or not to grant tenure. If granted, the teacher was guaranteed tenure for the duration of his/her career with a school system. Under the old process, however, if tenure was not granted, that teacher was no longer capable of maintaining employment within that school system.
The Current Process Teachers who earned tenure prior to July 1, 2011, will maintain tenure throughout their career under the old law – unless they retire and then return or transfer to another school system. Teachers now have to serve at least five years in probationary status, rather than three years. In order to become eligible for tenure, a teacher must receive two consecutive evaluations in the top two tiers of the evaluation system (above expectations or significantly above expectations). If a teacher does not receive these top marks, he/she may continue to be employed by a school system on a year-to-year basis. With this change, you could potentially have an educator who “meets expectations” every year of his/her career but would never be eligible for tenure. Once a teacher receives consecutive evaluations in the top tiers, the director of schools must recommend him/her for tenure or non-renew his/her contract (with there being no limit on the number of years of the probationary period, a teacher could become eligible for tenure in years four and five or eight and nine and so on). However, if a school board votes to not grant tenure, then similar to the old process, the teacher may no longer be employed within that system. Once tenure is obtained, the evaluations are still quite significant, and a teacher must continue to perform well. If a tenured teacher receives two consecutive evaluations in the bottom two tiers (below expectations or significantly below expectations), he/she automatically reverts back to the probationary status. This reverted teacher may obtain tenure again if he/she earns consecutive evaluations in the top two tiers. With these changes, you could potentially have an educator moving from tenured status to probationary status every couple years.
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Employee Rights and Relations Dismissals Once tenure is obtained, it guarantees certain protections and processes prior to being dismissed. A tenured teacher may only be dismissed for incompetence, inefficiency, neglect of duty, unprofessional conduct, or insubordination. Tenure laws now define “inefficiency� to include the results of the new evaluations. This definition is the only provision of the law that impacts teachers who earned tenure prior to July 1, 2011.
Impact The intent behind the reform was to create an incentive for educators to work hard and then reward them with tenure. While it is be much more difficult to obtain, it should certainly lose any stigma it may have had as an entitlement that is granted to nearly every teacher at the conclusion of the probationary period. Also, school systems will have the ability to dismiss ineffective teachers much more easily. Like the prior process, probationary teachers may be dismissed at the conclusion of any school year without costs associated with dismissal hearings. Prior to the 2014-2015 school year, most school boards will conduct tenure hearings under this law for the first time.
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Legal Reference Materials
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Professional Educators Collaborative Conferencing Act of 2011 49-5-601. Short title- Statement of purpose. (a) This part shall be known and may be cited as the "Professional Educators Collaborative Conferencing Act of 2011." (b) ( 1) Local boards of education and their professional employees have an obligation to the public to exert their full and continuing efforts to achieve the highest possible education standards in the institutions that they serve. This requires establishment and maintenance of an educational climate and working environment that will attract and retain a highly qualified professional staff and foster open, collaborative relationships between boards of education and their professional employees based upon mutual respect, in order to stimulate optimum performance by the staff and encourage each and every professional employee to contribute the employee's best to the enhancement of public schools. In order to best achieve these ends, it is the purpose of this part to set forth and recognize the legitimate rights and obligations of boards of education and their professional employees, to establish procedures governing their respective roles and the important relationships between them, and to promote a professional climate based upon mutual interest in order to focus efforts on teaching and learning for all students of the public schools. (2) Experience has shown that boards of education and their professional employees can best reach the objectives described in subdivision (b)(1), if each considers the ability, experience and judgment of the other in formulating policies and making decisions that involve the operations of this state's public schools through a collaborative effort of mutual interest and mutual gain. It also has been shown that professional employees can perform at their best when goals and expectations as to the terms and conditions of professional service are set forth with clarity, reliability and fairness to all in a manner demonstrating concern and respect for the interests of the individual employee. (3) It is the purpose and policy of this part to recognize the interests of individual employees in their relations with boards of education and to recognize certain rights, but not obligations, of professional employees to form, join and assist professional employees' organizations, such rights and responsibilities to include meeting, consulting and conferencing with boards of education in order to discuss matters relating to specific terms and conditions of professional service. Furthermore, in order to foster trust and mutual respect among the parties, and to provide an open and collaborative problem-solving approach to such conferencing, it is the purpose and policy of this part to recognize and adopt the principles and techniques known as interest-based collaborative problem-solving for use in conferences conducted pursuant to this part.
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Employee Rights and Relations (c) A training program in the principles and techniques of interest-based collaborative problem-solving for use in collaborative conferencing pursuant to this part shall be developed by the Tennessee Organization of School Superintendents in conjunction with representative organizations of school leaders and administrators and professional employees' organizations by January 1, 2012, at which time a summary report of the training program and related materials, if any, shall be presented to the education committees of the senate and the house of representatives. Such training program shall be implemented, as appropriate, within each local education agency no later than July 1, 2012 (d)Any and all bargaining being conducted pursuant to the Education Professional Negotiations Act on June 1, 2011, shall be suspended indefinitely. (e) No collaborative conferencing pursuant to this part shall be conducted by a local board of education until the training developed under this part has been implemented within the local education agency. 49-5-602. Part definitions. As used in this part, unless the context otherwise requires: (1) "Board of education" or "local board of education" has the same meaning as the term is defined in ยง 491-103; (2) "Collaborative conferencing" means the process by which the chair of a board of education and the board's professional employees, or such representatives as either party or parties may designate, meet at reasonable times to confer, consult and discuss and to exchange information, opinions and proposals on matters relating to the terms and conditions of professional employee service, using the principles and techniques of interest-based collaborative problem-solving; (3) "Management personnel" means those professional employees certified by the local board of education to represent the board in the collaborative conferencing process; (4) "Management team" means employees who devote a majority of their time to the system-wide area or areas of professional personnel management, fiscal affairs or general management and shall specifically include principals, assistant principals, supervisors and others whose principal responsibilities are administration rather than teaching; (5) "Memorandum of understanding" means the written document that memorializes and records the understanding reached by the board of education and its professional employees, or their respective representatives, if so designated, as to the terms and conditions of professional services set forth in this part.
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Employee Rights and Relations The memorandum shall be presented in its entirety to the board of education, to all professional employees covered by the memorandum and to the public, upon request; (6) "Person" means one (1) or more individuals, organizations, associations, or their representatives; (7) "Political activity" includes, but is not limited to: (A) Lobbying as defined in ยง 3-6-301; (B) Making contributions to any entity which engages in any form of political communication, including communications which mention the name of a political candidate; (C) Engaging in or paying for public opinion polling; (D) Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate; (E) Engaging in or paying for any type of political advertising in any medium; (F) Telephone communication for any political purpose; (G) Distributing political literature of any type; or (H) Providing any type of in-kind help or support to or for a political candidate; (8) "Professional employee" means any person employed by any local board of education in a position that requires a license issued by the department of education for service in public elementary and secondary schools of this state, supported, in whole or in part, by local, state or federal funds, but shall not include any member of the management team, as defined in this part, or a retired teacher who is employed as a teacher in accordance with title 8, chapter 36, part 8; (9) "Professional employees' organization" means any organization with membership open to professional employees, as defined in subdivision (8), in which the professional employees participate and that exists for the purpose of promoting the professional status and growth of educators and the welfare of students; (10) "Representative" includes any person, or group of persons, organization or association that is designated and authorized by professional employees or local board of education to act for the professional employees or the local board, respectively, under this part;
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Employee Rights and Relations (11) "Strike" means the failure with others to report for duty, the willful absence from one's position, the stoppage of work or the abstinence in whole or in part from the full, faithful and proper performance of the duties of employment, and without the lawful approval of one's superior; or in any manner interfering with the operation of the public school system, for the purpose of inducing or coercing the recognition of any employee organization or a change in the conditions or compensation or the rights, privileges or obligations of employment; (12) "Supervisor" means any professional employee of a local board of education whose full-time job responsibilities consist of oversight of other professional employees or curriculum development or both; and (13) "Working conditions of professional employees" or "terms and conditions of professional service" means those fundamental matters that affect a professional employee financially or the employee's employment relationship with the board of education and that are specifically designated as such under this part. The term "working conditions" or "terms and conditions of professional service" is intended to be narrowly defined and does not include any matters not specifically designated under this part. 49-5-603. Rights of professional employees. Professional employees have the right to self-organization, to form, join or be assisted by organizations, to participate in collaborative conferencing with local boards of education through representatives of their own choosing and to engage in other concerted activities for the purpose of other mutual aid and benefit; provided, that professional employees also have the right to refrain from any or all such activities. 49-5-604. Rights preserved. (a) Those rights and responsibilities of boards of education, directors of schools and professional employees as contained in this title are not statutorily modified or repealed by this part. (b) This part shall not operate so as to annul or modify any recognition heretofore entered into between a board of education and a professional employees' organization until the termination of an existing agreement between a local board of education and a professional employees' organization. Upon the termination of any existing agreement, subsequent professional employee relationships between the respective board of education and its professional employees shall be governed by this part.
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Employee Rights and Relations 49-5-605. Representatives. (a) Experience has shown that efforts to confer, consult, discuss, and to exchange information, opinions, and proposals on terms and conditions of professional service are most efficient and effective when conducted by participants who are selected and authorized to represent individual professional employees or groups of employees. It is the policy and purpose of this part to ensure the rights of professional employees to participate in collaborative conferencing with boards of education through representatives of their own choosing. No professional employee, group of professional employees, or professional employee organization shall be denied the opportunity to represent themselves or groups of professional employees in discussions authorized under this part. (b) (1) Upon the submission by fifteen percent (15%) or more of the professional employees in an LEA of a written request to conduct collaborative conferencing with a board of education between October 1 and November 1 of any year, the board of education shall appoint an equal number of its professional employees and board members to serve on a special question committee for the purpose of conducting a confidential poll of all eligible professional employees as provided in subdivision (b)(2). (2) (A) The confidential poll shall be by secret ballot and shall require the employee to respond to two (2) questions. The first question shall request the employee to respond "YES" or "NO" to the question: Shall the professional employees of this LEA undertake collaborative conferencing with the board of education? (B) If the employee responds "YES" to the first question, then the second question shall request that the employee indicate which organization the employee prefers to represent the employee in collaborative conferencing by checking the box related to one (1) of the professional employees' organizations having a presence in the LEA. The second question shall also include a box for the response of "unaffiliated", if an employee does not have a preference as to a professional employees' organization. If the employee responds "NO" to the first question, then the second question shall request the employee to express a preference for one (1) of the professional employees' organizations. The second question shall also provide for a response of "unaffiliated", if an employee does not have a preference of a professional employees' organization, or a response of "none of the above", if the employee does not want to be represented in collaborative conferencing, if such conferencing should occur. (3) No board of education shall have a duty or obligation to engage in collaborative conferencing with its professional employees pursuant to this part unless a majority of those eligible to vote in the poll under subdivision (b)(2) respond "YES" to the first question.
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Employee Rights and Relations (4) Upon receiving the results of the poll in which the majority of those eligible to vote respond "YES" to the first question, the board of education shall appoint at least seven (7), but no more than eleven (11) persons, to serve as management personnel. The professional employees shall be entitled to the same number of representatives as the number of management personnel selected by the board of education. The professional employee representatives shall be selected according to each organization's proportional share of the responses to the second question; provided, however, that only those professional employees' organizations receiving fifteen percent (15%) or more of the responses to the second question shall be entitled to representation. The category of "unaffiliated" as a response to the second question, but not the category of "none of the above", shall be considered a professional employees' organization for the purposes of this subdivision (b)(4). (5) If fifteen percent (15%) or more of the professional employees polled indicate a preference for an unaffiliated representative, then the special question committee shall select and appoint a person or persons to serve as an unaffiliated representative or representatives according to the proportional share of responses to the second question in the category "unaffiliated". (6) (A) The term of the members of the panel constituted as the result of a poll in which the majority of those eligible to vote respond "YES" to the first question shall be three (3) years. If a vacancy occurs on the panel, then the appointing body which appointed the member to the position that became vacant shall appoint a replacement for the remainder of the term. Prior to expiration of the terms of the members of the panel, a new poll shall be conducted under this subsection (b) to determine whether the professional employees want to continue to engage in collaborative conferencing. (B) Notwithstanding the provisions of subdivision (b)(6)(A) to the contrary, a memorandum of understanding may provide for polls after a poll in which the majority of those eligible to vote responded "YES" to the first question to occur more frequently than once every three (3) years. The term of the members selected for the panel after such poll shall be the length of time specified by the memorandum of understanding between two (2) polls. (c) Each professional employees' organization receiving fifteen percent (15%) or more of the responses shall select and appoint the appropriate number of persons to serve as representatives of the professional employees preferring that organization. The board of education shall select and appoint its representatives. Representatives shall be appointed no later than December 1. (d) If a majority vote to conduct collaborative conferencing is not secured, then during any subsequent year, the professional employees may again seek to engage in collaborative conferencing pursuant to subsection (b).
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Employee Rights and Relations (e) The results of the confidential poll and the names and positions of the appointed representatives shall be transmitted to the board, professional employees and professional employee organizations prior to January 1 next. (f ) Those persons or organizations initiating the poll shall be assessed the reasonable costs necessitated in conducting the poll by the chair of the special question committee. 49-5-606. Unlawful acts. (a) It is unlawful for a board of education or its management personnel to: (1) Impose or threaten to impose reprisals on professional employees or discriminate against professional employees by reason of their exercise of rights guaranteed by this part; (2) Interfere with, restrain or coerce employees in the exercise of the rights guaranteed in ยง 49-5-603; (3) Refuse or fail to participate in collaborative conferencing under this part; (4) Refuse to permit any professional employees' organization to have access at reasonable times before or after the instructional day to areas in which professional employees work, to use institutional bulletin boards, mail boxes or other communication media or to use institutional facilities as permitted by a local board's policy or procedure for community use at reasonable times for the purpose of holding a meeting concerned with the exercise of the rights guaranteed by this part; (5) Encourage or discourage membership in any organization by discrimination in hiring, granting of tenure or other terms or conditions of employment. The board of education or management personnel may express any views or opinions on the subject of employer-employee relations; provided, however, that such expression shall contain no threat of reprimand, discharge or promise of benefits; (6) Discharge or discriminate against an employee because the employee has filed an affidavit, petition, or complaint or given any information or testimony under this part; or (7) Dominate, interfere or assist in the administration of any professional employee organization. (b) It is unlawful for a professional employees' organization or its representatives to:: (1) Cause or attempt to cause a board of education to engage in conduct violative of this part; provided, that this subdivision (b)(1) shall not be construed to impair the right of professional employees' organiza-
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Employee Rights and Relations tions to prescribe their own rules with respect to operation involving the acquisition or retention of membership; (2) Refuse or fail to participate in collaborative conferencing under this part with a board of education; (3) Interfere with, restrain or coerce professional employees or a board of education in the exercise of rights granted in this part; (4) Engage in a strike; (5) Urge, coerce or encourage others to engage in unlawful acts as defined in this part; (6) Enter onto the school grounds for the purpose of contacting professional employees in such a manner and at such times as will interfere with the normal operations of the school; or (7) Coerce or attempt to intimidate professional employees who choose not to join a professional employee organization. (c) (1) A complaint of an unlawful act shall be filed with, or initiated by the board of education. If no reasonable resolution is reached between the parties, a complaint may be filed in the chancery court of the county where the local education agency is located. (2) No complaint shall issue based upon any unlawful act occurring more than three (3) months prior to the filing of the complaint. (3) The court is empowered to prevent any board of education or its agents, or organizations, associations, professional employees, or their agents, from engaging in any unlawful act. ( 4) If, upon the preponderance of the evidence taken, the court is of the opinion that a party named in the complaint has engaged in or is engaging in any such unlawful act, then the court shall state its findings of fact, issue an order requiring the party to cease and desist from the unlawful act, and take affirmative action including resumption of collaborative conferencing or reinstatement of employees. The order may further require the party to make reports from time-to-time showing the extent to which it has complied with the order. (5) If, upon the preponderance of the testimony taken, the court is not of the opinion that a party named in the complaint has engaged in or is engaging in any such unlawful act, then the court shall state its findings of fact and shall issue an order dismissing the complaint and shall issue an order dismissing the complaint.
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Employee Rights and Relations 49-5-607. Strikes- Remedies. (a) (1) If a strike occurs, the board of education may apply to the chancery court in the county to enjoin the strike. The application shall set forth the facts constituting the strike. (2) If the court finds, after a hearing, that a strike has occurred, the court shall enjoin the employees from participating in the strike. (b) When local boards of education have determined which employees have engaged in or participated in a strike, the employees may be subject to dismissal and, further, shall forfeit their claim to tenure status, if they have attained tenure, and shall revert to probationary status for the next five-year period. Any professional employee who engaged in, or participated in, a strike and who is not a tenured teacher may also be subject to dismissal. (c) No penalty, forfeiture of rights or privileges or other sanction or fine imposed on a professional employees' organization, its officers or members, as the result of a strike, shall be subject to collaborative conferencing by the organization and a board at any time. 49-5-608. Scope of conferencing. (a) A local board of education shall be required to participate in collaborative conferencing with professional employees, or their designated representatives, if any, with respect to only those terms and conditions of employment that are specified in this section. Such terms and conditions include and are limited to the following: (1) Salaries or wages; (2) Grievance procedures; (3) Insurance; (4) Fringe benefits, but not to include pensions or retirement programs of the Tennessee consolidated retirement system or locally authorized early retirement incentives; (5) Working conditions; except those working conditions which are prescribed by federal law, state law, private act, municipal charter or rules and regulations of the state board of education, the department of education or any other department or agency of state or local government;
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Employee Rights and Relations (6) Leave; and (7) Payroll deductions; except as provided in subsection (b). (b) No other terms or conditions of employment shall be the subject of collaborative conferencing between the board of education and the professional employees or their representatives and no collaborative conferencing shall be conducted on the following subjects: (1) Differentiated pay plans and other incentive compensation programs including stipends and associated benefits that are based on professional employee performance that exceeds expectations, or that aid in hiring and retaining highly qualified teachers for hard-to-staff schools and subject areas; (2) Expenditure of grants or awards from federal, state or local governments and foundations or other private organizations that are expressly designated for specific purposes; (3) Evaluation of professional employees pursuant to federal or state law or state board of education policy; (4) Staffing decisions and state board of education or local board of education policies relating to innovative educational programs under ยง 49-1-207; innovative high school programs under chapter 15 of this title; virtual education programs under chapter 16 of this title; and other programs for innovative schools or school districts that may be enacted by the general assembly; (5) All personnel decisions concerning assignment of professional employees, including, but not limited to, filling of vacancies, assignments to specific schools, positions, professional duties, transfers within the system, layoffs, reductions in force, and recall. No agreement shall include provisions that require personnel decisions to be determined on the basis of tenure, seniority or length of service; and (6) Payroll deductions for political activities. (c) The director of schools shall be permitted to communicate with professional employees employed by the local board of education concerning any subject relevant to the operation of the school system, including the terms and conditions of professional service that are subject to collaborative conferencing, through any means, medium or format the director chooses.
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Employee Rights and Relations 49-5-609. Memorandum of Understanding. (a) The scope of a memorandum shall extend to those matters of mutual agreement between the board of education and the professional employees; provided, that its scope shall not include proposals contrary to: (1) Federal or state law or applicable municipal charter; (2) Professional employee rights defined in this part; or (3) Board of education rights contained in this title. (b) If agreement is reached by the management personnel of the board of education and the representatives of its professional employees, they shall jointly prepare a proposed memorandum of understanding. The board of education may enter into the memorandum for a period not to exceed three (3) years. Any items included within the memorandum that require funding shall not be considered effective until such time as the body empowered to appropriate the funds has approved a budget that includes sufficient funding. If the amount of funds appropriated is less than the amount required to address the matters of collaborative conferencing, then the parties may continue to confer to reach agreement within the amount of funds appropriated. (c) A memorandum of understanding shall be binding on the parties from the date of its approval by the board of education as an item on the agenda of a regular or special called board meeting or at a later effective date that is explicitly stated in the memorandum of understanding. (d) Nothing in this part shall be construed to require collaborative conferencing, agreement on any terms and conditions of employment, or, if agreement has not been reached between the board of education and the representatives of the professional employees, a memorandum of understanding. Absent an agreement and memorandum of understanding on terms and conditions specified for collaborative conferencing in this part, the board of education shall have the authority to address such terms and conditions through board policy.
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Employee Rights and Relations
Laws on the Employment of Teachers 49-5-401. Employment and assignment generally. (a) All educators and other school personnel to be employed for the following school year shall be assigned to the several schools by June 15 next preceding the school year for which those persons are employed. (b) If a sufficient number of educators and other personnel are not available for employment by May 15, the director of schools shall employ and assign to the several school such educators and other personnel as are necessary to meet the needs and programs authorized by the board of education. (c) The various directors of schools shall, on or before June 1 next following the election and assignment of such personnel, file with the commissioner of education, on forms prescribed by the commissioner, a complete list of all personnel employed for the ensuing school year.
49-5-409. Teachers -- Continuing contract law -- Termination of contracts. (a) Teachers in service and under control of the public elementary and high schools of this state shall continue in such service until they have received written notice from their board of education or director of schools, as appropriate, of their dismissal or failure of reelection. (b) The notice must be received within five (5) business days following the last instructional day for the school year to be applicable to the next succeeding school year; provided, that the director of schools may transfer any teacher from one (1) position to another at the director's option. Nothing contained in this section shall affect any rights that may have accrued, or may hereafter accrue, on behalf of any teachers or principals in any local school system under any law providing a tenure of office for the teachers and principals. (c) Nothing in this section shall prohibit a board from abolishing a position after June 15, for sufficient, just and nondiscriminatory reasons; provided, that the person holding the position is notified immediately in writing stating the reasons for abolishing the position and the person is entitled to the next position that the person is qualified to hold and that opens within the school system during the remainder of the school year. The determination of whether a teacher is qualified for an open position shall be made by the director of schools, and the teacher's most recent evaluations may be a factor in such determination.
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Teachers' Tenure Laws 49-5-501. Part definitions. As used in this part, unless the context otherwise requires: (1) "Abolition of position" means a regular bona fide elimination of a position for sufficient, just and nondiscriminatory reasons; (2) "Board" means the local board of education holding jurisdiction in its respective territory. In the event that a school system operates without a board of education, the authority that performs the functions usually performed by a board shall be indicated by the word "board"; (3) "Conduct unbecoming to a member of the teaching profession" may consist of, but not be limited to, one (1) or more of the following: (A) Immorality; (B) Conviction of a felony or a crime involving moral turpitude; (C) Dishonesty, unreliability, continued willful failure or refusal to pay one's just and honest debts; (D) Disregard of the teacher code of ethics in part 10 of this chapter, in such manner as to make one obnoxious as a member of the profession; or (E) Improper use of narcotics or intoxicants; (4) "Director of schools" refers to the local director of schools, or to any other officer performing the functions of a director of schools; (5) "Incompetence" means being incapable, lacking adequate power, capacity or ability to carry out the duties and responsibilities of the position. This may apply to physical, mental, educational, emotional or other personal conditions. It may include lack of training or experience, evident unfitness for service, a physical, mental or emotional condition making the teacher unfit to instruct or associate with children or the inability to command respect from subordinates or to secure cooperation of those with whom the teacher must work;
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Employee Rights and Relations (6) "Inefficiency" means being below the standards of efficiency maintained by others currently employed by the board for similar work, or habitually tardy, inaccurate or wanting in effective performance of duties. The definition of inefficiency includes, but is not limited to, having evaluations demonstrating an overall performance effectiveness level that is "below expectations" or "significantly below expectations" as provided in the evaluation guidelines adopted by the state board of education pursuant to ยง 49-1-302; (7) "Insubordination" may consist of: (A) Refusal or continued failure to obey the school laws of this state, to comply with the rules and regulations of the board or to carry out specific assignments made by the board, the director of schools or the principal, each acting within its own jurisdiction, when the rules, regulations and assignments are reasonable and not discriminatory; (B) Failure to participate in an in-service training program as set up by the local board of education and approved by the state board of education; (C) Treason, or any effort to sabotage or overthrow the government of the United States; or (D) Refusal by the teacher to disclose to the board whether or not the teacher is, or has been, a member of the communist or any other party that advocates the overthrow of the government; (8) "Neglect of duty" means gross or repeated failure to perform duties and responsibilities that reasonably can be expected of one in such capacity or continued unexcused or unnecessary absence from duty; (9) "Probation" is a condition and period of trial during which a teacher is under observation to determine the teacher's fitness for tenure status; (10) "Teacher" includes teachers, supervisors, principals, director of schools and all other certificated personnel employed by any local board of education, for service in public, elementary and secondary schools in this state, supported in whole or in part by state or federal funds; (11) (A) "Tenure" is the employment status other than probation that a teacher may be under while teaching in the public schools. (B) (i) A teacher has no property right in the teacher's tenure status and must sustain a specified performance effectiveness level on evaluations, as provided in this part, to achieve and maintain tenure status. If a teacher acquires tenure, the teacher shall remain under that status until such time as the teacher resigns, retires, is dismissed or the teacher is returned to probationary status by the director of schools under this part.
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Employee Rights and Relations (ii) No teacher who acquired tenure status prior to July 1, 2011, shall be returned to probationary status. (C) No teacher, including administrative and supervisory personnel, who has acquired tenure status is entitled to any specific position; and (12) "Transfer" means removal from one (1) position to another position under jurisdiction of the same board. 49-5-502. Construction with other statutes. (a) The teachers' continuing contract law, codified in ยง 49-5-409, shall not be construed to be affected by this part, except that the continuing contract law shall not apply to teachers who have acquired tenure under this part. (b) (1) This part shall not affect the operation of local or private tenure acts in operation on March 1, 1951, applying to counties, municipalities or special school districts. (2) This part shall not be operative in any such county, municipality or special school district so long as the local or private act remains in effect. (3) This part shall become operative in any system where there is, on March 1, 1951, a local tenure law in effect, if and when the local law becomes inoperative. 49-5-503. Tenure. Any teacher who meets all of the following requirements is eligible for "tenure": (1) Has a degree from an approved four-year college or any career and technical teacher who has the equivalent amount of training established and licensed by the state board of education; (2) Holds a valid teacher license, issued by the state board of education, based on training covering the subjects or grades taught; (3) Has completed a probationary period of five (5) school years or not less than forty-five (45) months within the last seven-year period, the last two (2) years being employed in a regular teaching position rather than an interim teaching position;
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(4) Has received evaluations demonstrating an overall performance effectiveness level of "above expectations" or "significantly above expectations" as provided in the evaluation guidelines adopted by the state board of education pursuant to ยง 49-1-302, during the last two (2) years of the probationary period; and (5) Is reemployed by the director of schools for service after the probationary period. 49-5-504. Probation. (a) Any teacher, otherwise qualified for tenure status, shall meet the following requirements prior to becoming eligible for tenure status: (1) Served five (5) school years or not less than forty-five (45) months within a seven-year period as a probationary teacher; and (2) Received evaluations demonstrating an overall performance effectiveness level of "above expectations" or "significantly above expectations" provided by the evaluation guidelines adopted by the state board of education pursuant to ยง 49-1-302, during the last two (2) years of their probationary period. (b) Notwithstanding any other law to the contrary, once a teacher is eligible for tenure, the teacher shall be either recommended by the director of schools for tenure or nonrenewed; provided, however, that the teacher cannot be continued in employment if tenure is not granted by the board of education. (c) Time spent on leave of absence, except sick leave as provided in ยง 49-5-710, shall not be counted as a part of the probationary period. (d) A teacher who has attained tenure status in a school system and later resigns from the system shall serve a two-year probationary period upon reemployment by the system, unless the probationary period is waived by the board of education upon request of the director of schools. Upon completion of the two-year probationary period, the teacher shall be eligible for tenure and shall be either recommended by the director of schools for tenure or nonrenewed; provided, however, that the teacher cannot be continued in employment if tenure is not granted by the board of education. (e) Any teacher who, after acquiring tenure status, receives two (2) consecutive years of evaluations demonstrating an overall performance effectiveness level of "below expectations" or "significantly below expectations," as provided by the evaluation guidelines adopted by the state board of education pursuant to ยง 49-1-302, shall be returned to probationary status by the director of schools until the teacher has received two (2) consecutive years of evaluations demonstrating an overall performance effectiveness level of "above expectations" or "significantly above expectations." When a teacher who has returned to probationary status has received two (2) consecutive years of evaluations demonstrating an overall performance effectiveness level
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Employee Rights and Relations of "above expectations" or "significantly above expectations," the teacher is again eligible for tenure and shall be either recommended by the director of schools for tenure or nonrenewed; provided, however, that the teacher cannot be continued in employment if tenure is not granted by the board of education. (f ) Subsection (e) does not apply to teachers who acquired tenure prior to July 1, 2011. 49-5-506. Local standards may apply. The local board of education has the authority to set standards of employment or to maintain educational requirements of the personnel in service over and above those required by the state board of education whenever the board is in position to support the superior program; provided, that the requirements are general in their application and have the approval of the state board of education. 49-5-508. Breach of contract -- Effect on tenure. (a) A teacher shall give the director of schools notice of resignation at least thirty (30) days in advance of the effective date of the resignation. A teacher who fails to give such notice, in the absence of justifiable mitigating circumstances, shall forfeit all tenure status under this part; provided, that the board may waive the thirty (30) days' notice requirement and permit a teacher to resign in good standing. (b) Any teacher who breaks a contract with a board of education without a justifiable reason as listed in subsection (c) shall not be given permanent tenure status in any other school system in this state, until such teacher has met all of the requirements in such system for attaining permanent status plus the serving of five (5) continuous years in lieu of the three (3) continuous years required in ยง 49-5-503; provided, that the local board of education against which the teacher has broken a contract informs the commissioner of education of the breach of contract and requests the commissioner to so notify all local boards of education in this state. The local board of education may later inform the commissioner that it is no longer holding the breach of contract against the teacher, in which event the local board of education shall request the commissioner to so notify all local boards of education in this state. If and when the local board of education informs the commissioner that it is no longer holding the breach of contract against the teacher, the penalty in this subsection (b) against the teacher shall immediately become ineffective, null and void. (c) The conditions under which it is permissible to break a contract with a local board of education are as follows: (1) The incapacity on the part of the teacher to perform the contract as evidenced by the certified statement of a physician approved by the local board of education;
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Employee Rights and Relations (2) The drafting of the teacher into military service by a selective service board; or (3) The release by the local board of education of the teacher from the contract that the teacher has entered into with the local board of education. 49-5-509. Teacher transferred to another system. (a) If a teacher transfers from one LEA in this state to another LEA, the LEA from which the teacher transfers shall send to the LEA to which the teacher transfers the results of the teacher's last five (5) evaluations or the results of all evaluations, if fewer than five (5) are available. (b) A transferring teacher who is tenured or a transferring teacher who is nontenured and has five (5) or more years of prior service shall serve the regular probationary period in the new LEA, unless the local board of education, upon the recommendation of the director of schools, waives the probationary period requirement and grants tenure status or shortens the probationary period. (c) If a nontenured teacher who does not have five (5) years of prior service transfers to an LEA, then tenure shall not be granted until the teacher has served at least five (5) years when service in both LEAs is counted. (d) All tenure decisions made under this section are subject to the requirements of ยง 49-5-504 concerning overall performance effectiveness levels. 49-5-510. Transfers within system. The director of schools, when necessary to the efficient operation of the school system, may transfer a teacher from one location to another within the school system, or from one type of work to another for which the teacher is qualified and licensed; provided, that transfers shall be acted upon in accordance with board policy. 49-5-511. Dismissal or suspension of teachers -- Causes for dismissal -- Position reduction -- Written notice -- Preferred list for employment -- Convictions -- License revocation. [Effective on July 1, 2014] (a) (1) No teacher shall be dismissed or suspended except as provided in this part. (2) The causes for which a teacher may be dismissed or suspended are: incompetence, inefficiency, neglect of duty, unprofessional conduct, and insubordination, as defined in ยง 49-5-501.
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Employee Rights and Relations (3) A director of schools may suspend a teacher at any time that may seem necessary, pending investigation or final disposition of a case before the board or an appeal. If vindicated or reinstated, the teacher shall be paid the full salary for the period during which the teacher was suspended. (4) When charges are made to the board of education against a teacher, charging the teacher with offenses that would justify dismissal of the teacher under the terms of this part, the charges shall be made in writing, specifically stating the offenses that are charged, and shall be signed by the party or parties making the charges. (5) If, in the opinion of the board, charges are of such a nature as to warrant the dismissal of the teacher, the director of schools shall give the teacher a written notice of this decision, together with a copy of the charges and a copy of a form, which shall be provided by the commissioner of education, advising the teacher as to the teacher's legal duties, rights, and recourse under the terms of this part. (b) (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 based on their level of effectiveness determined by the evaluation pursuant to ยง 49-1-302 for licensed employees and an evaluation of work performance for nonlicensed employees. (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 teacher rated in the three (3) highest categories based on evaluations pursuant to ยง 49-1-302 who has been dismissed because of abolition of a position shall be placed on a list for reemployment. 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 the basis of the director of schools' 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. A principal may refuse to accept the placement or transfer of a teacher by the director of schools to the principal's school. The teacher's most recent evaluations shall be a factor in such determination. (4) The right to remain on the preferred list for employment shall remain in effect until: (A) The teacher accepts a bona fide offer of reemployment for a comparable position within the LEA; or (B) The teacher rejects four (4) bona fide offers of reemployment for comparable positions within the LEA.
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Employee Rights and Relations (c) (1) Notwithstanding subsection (a), but subject to the appeal and review provisions of §§ 49-5-512 and 49-5-513, any teacher convicted of a felony listed in § 40-35-501(i)(2) or convicted of an offense listed in § 39-17-417 shall be immediately suspended, and dismissed subject to subdivision (c)(2). (2) If the dismissal of the teacher is upheld in the board and court reviews provided for in §§ 49-5-512 and 49-5-513, the director shall notify in writing the commissioner of education who shall begin licensure revocation proceedings under applicable rules of the state board of education. 49-5-512. Dismissal or suspension -- Hearing -- Appeal. (a) A tenured teacher who receives notification of charges pursuant to § 49-5-511 may, within thirty (30) days after receipt of the notice, demand a full and complete hearing on the charges before an impartial hearing officer selected by the board, as follows: (1) The teacher shall give written notice to the director of schools of the teacher's request for a hearing; (2) The director of schools shall, within five (5) days after receipt of the request, name an impartial hearing officer who shall be responsible for notifying the parties of the hearing officer's assignment. The hearing officer shall direct the parties or the attorneys for the parties, or both, to appear before the hearing officer for simplification of issues and the scheduling of the hearing, which in no event shall be set later than thirty (30) days following receipt of notice demanding a hearing. In the discretion of the hearing officer, all or part of any prehearing conference may be conducted by telephone if each participant has an opportunity to participate, to be heard and to address proof and evidentiary concerns. The hearing officer is empowered to issue appropriate orders and to regulate the conduct of the proceedings; (3) For the purposes of this part, "impartial" means that the selected hearing officer shall have no history of employment with the board or director of schools, no relationship with any board member and no relationship with the teacher or representatives of the teacher; (4) All parties shall have the right to be represented by counsel, the opportunity to call and subpoena witnesses, the opportunity to examine all witnesses, the right to require that all testimony be given under oath and the right to have evidence deemed relevant by the submitting party included in the record of the hearing, even if objected to by the opposing party; (5) All witnesses shall be entitled to the witness fees and mileage provided by law, which fees and mileage shall be paid by the party issuing a subpoena or calling the witnesses to testify; (6) The impartial hearing officer shall administer oaths to witnesses, who testify under oath;
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Employee Rights and Relations (7) A record of the hearing, either by transcript, recording or as is otherwise agreed by the parties shall be prepared if the decision of the hearing officer is appealed, and all decisions of the hearing officer shall be reduced to writing and included in the record, together with all evidence otherwise submitted; (8) On request of either party to the hearing, witnesses may be barred from the hearing except as they are called to testify. The hearing may be private at the request of the teacher or in the discretion of the hearing officer; and (9) At appropriate stages of the hearing, the hearing officer may give the parties the full opportunity to file briefs, proposed findings of fact and conclusions of law and proposed initial or final orders. The hearing officer shall, within ten (10) days of closing the hearing, decide what disposition to make of the case and shall immediately thereafter give the board and the teacher written findings of fact, conclusions of law and a concise and explicit statement of the outcome of the decision. (b) The director of schools or other school officials shall not be held liable, personally or officially, when performing their duties in prosecuting charges against any teacher or teachers under this part. (c) (1) If the affected teacher desires to appeal from a decision rendered in whole or in part in favor of the school system, the teacher shall first exhaust the administrative remedy of appealing the decision to the board of education within ten (10) working days of the hearing officer's delivery of the written findings of fact, conclusions and decision to the affected employee. (2) Upon written notice of appeal, the director of schools shall prepare a copy of the proceedings, transcript, documentary and other evidence presented and transmit the copy to the board within twenty (20) working days of receipt of notice of appeal. (3) The board shall hear the appeal on the record and no new evidence shall be introduced. The affected employee may appear in person or by counsel and argue why the decision should be modified or reversed. The board may sustain the decision, send the record back if additional evidence is necessary, revise the penalty or reverse the decision. Before any findings and decision are sustained or punishment inflicted, a majority of the membership of the board shall concur in sustaining the charges and decision. The board shall render its decision on the appeal within ten (10) working days after the conclusion of the hearing. (4) Any party dissatisfied with the decision rendered by the board shall have the right to appeal to the chancery court in the county where the school system is located within thirty (30) days after receipt of the dated notice of the decision of the board. It shall be the duty of the board to cause the entire record and other evidence in the case to be transmitted to the court. The review of the court shall be de novo on the
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Employee Rights and Relations record of the hearing held by the hearing officer and reviewed by the board. (5) The director of schools shall also have the right to appeal any adverse ruling by the hearing officer to the board under the same conditions as set out in this subsection (c). (d) Subsections (a) and (c) shall not apply to a disciplinary suspension by the director of schools that is for a period of three (3) days or less and that is not made in anticipation of dismissal. For such suspensions of three (3) days or less, the following shall apply: (1) The director of schools shall provide written notice of suspension and the reasons for the suspension to the tenured teacher, along with an explanation of the evidence supporting the decision to suspend and copies of any documents relied upon by the director in reaching that decision; (2) Upon request made in writing within five (5) days from the date of the suspension letter or the date it was received, whichever is later, the director shall provide a conference with the director at which the teacher may offer rebuttal to the charges or any information the teacher wishes the director to consider. Both the LEA and the teacher may be represented by an attorney or other representative; (3) The meeting shall be recorded by the director of schools, and a copy shall be provided to the teacher upon request; (4) The director shall issue a written decision within ten (10) days from the date of the conference. The director may not impose any additional punishment beyond that described in the notice of suspension; and (5) The teacher, if dissatisfied with the decision of the director, may pursue appeal of the director's decision pursuant to ยง 49-5-513. 49-5-513. Judicial review. (a) A tenured teacher who is dismissed or suspended by action of the board pursuant to ยง 49-5-512(c)(3), or suspended by action of the director pursuant to ยง 49-5-512(d)(4), may petition for a writ of certiorari from the chancery court of the county where the teacher is employed. (b) The petition shall be filed within thirty (30) days from the receipt by the teacher of notice of the decision of the board. The petition shall state briefly the issues involved in the cause, the substance of the order of the board, or the respects in which the petitioner claims the order of the board is erroneous, and praying for an accordant review. The petition shall be addressed to the presiding chancellor and shall name as defendants the members of the board and such other parties of record, if such, as were involved in the hearing before the board.
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Employee Rights and Relations (c) The petitioner shall give bond for costs as in other chancery suits or oaths of paupers in lieu. (d) Upon the filing of the petition, the clerk and master shall immediately send, by registered return receipt mail, to the chair of the board, a notice of the filing of the petition and a certified copy of the petition. The clerk shall also send a similar notice to the last known post office address of each other party named as defendant. In lieu of notice by registered mail, subpoena to answer may be served personally on each defendant, as in other chancery cases. (e) The filing of the petition shall suspend the order of the board pending a decision by the chancellor, but the teacher shall not be permitted to return to teaching pending final disposition of the appeal. (f ) All defendants named in the petition desiring to make defense shall do so by answer, in which grounds of demurrer shall be incorporated, to the petition within thirty (30) days from the date of the filing of the petition, unless the time be extended by the court. Any other person who may be affected by the decision to be made by the court may, upon proper leave given, intervene and file an answer in the cause. Amendments may be granted as in other chancery procedures. (g) The cause shall stand for trial and shall be heard and determined at the earliest practical date, as one having precedence over other litigation, except suits involving state, county or municipal revenue. The review of the court shall be limited to the written record of the hearing before the board and any evidence or exhibits submitted at the hearing. Additional evidence or testimony shall not be admitted except as to establish arbitrary or capricious action or violation of statutory or constitutional rights by the board. (h) The chancellor shall reduce the chancellor's findings of fact and conclusions of law to writing and make them parts of the record. (i) Any party dissatisfied with the decree of the court may appeal as provided by the Tennessee rules of appellate procedure, where the cause shall be heard on the transcript of the record from the chancery court. 49-5-514. Merger of local with state tenure system. (a) (1) Should it be desired to incorporate any local teacher tenure system into the state system, the board having jurisdiction over the teachers under the local system shall publish in some newspaper of general circulation in the town or county in which the local tenure system is located a notice of its intent to apply for admission to the state teacher tenure system, and, in the notice, shall fix the date for a hearing thereon, which date shall not be less than ten (10) days after the first publication of the notice.
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Employee Rights and Relations (2) Upon the day fixed by the notice for the hearing, which hearing may be adjourned from time to time if deemed necessary, the board shall hear interested parties who shall have the right to appear in person or by counsel upon the advisability of the entry or merger into the state system. (3) After the local board of education concludes its hearing, the board shall conduct a referendum of the teachers within the local teacher tenure system, and if a majority of the teachers vote in favor of merging with the state system, then the board shall request the merger and shall forward a certified copy of the result of the referendum to the commissioner of education for consideration. (4) If the commissioner approves the merger, then the commissioner shall give proper notice of the merger and, at the end of ten (10) days from the giving of the public notice of acceptance, the local tenure system shall be merged with and become a part of the state teacher tenure system, and the members of the local tenure system shall thereupon be entitled to all the benefits of the state tenure system to the same extent as though they had been members of the state tenure system from its inception. (b) As used in this section: (1) "Board" means any county board of education in a county operating under a local teacher tenure act or any municipal board of education in a city operating under such act; and (2) "Local teacher tenure systems" means any teacher tenure system applicable only to a county or to a city or town and authorized by special act of the general assembly. 49-5-515. Establishment of system for teachers not previously covered. (a) The state board of education is authorized and directed to establish a system of tenure for teachers in schools and institutions under its jurisdiction. (b) The board shall promulgate and publish reasonable rules and regulations for the establishment of a tenure system for such teachers, and has the power to promulgate and publish the rules and regulations as are deemed reasonably necessary for the establishment of the tenure system, which shall include, but not be limited to, standards and requirements concerning: (1) The minimum qualifications of teachers eligible for tenure; (2) The types of tenure; (3) Leaves of absence;
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(4) Time of termination of tenure; (5) Transfers within the system; (6) Credit for time served in other school systems within the state; (7) Grounds and procedures concerning suspensions and dismissals; (8) Investigations; (9) Suspensions pending investigations; and (10) Other subjects deemed by the board to be reasonably related to teacher's tenure. (c) The rules and regulations shall be adopted by a formal resolution by a majority of the membership, and the resolution shall be signed by a majority of the members of the state board of education as certified by the chair and attested by the executive secretary of the board, and otherwise they shall be approved and filed in the manner required by the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. (d) After giving written notice of charges against any teacher, the board shall hold a hearing in the same manner and shall have the same powers as provided in ยง 49-5-512; provided, that where ยง 49-5-512 refers to the director of schools, for the purpose of this part, reference shall be made to the chair of the state board of education. (e) A teacher shall be entitled to a judicial review of the action of the board for the same purposes and in the same manner provided by ยง 49-5-513. (f ) As used in this section, "teacher" means any person employed by the state board of education in a fulltime position as an administrative officer or teacher in a school or other educational institution except a college or university; provided, that "teacher," does not apply to the principal or chief administrative officer of the school or institution. (g) No teacher under this section shall be guaranteed continuity of employment in a particular assignment or position.
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Ethical Behavior
Ethical Behavior What the Law Requires... What Your Constituents Deserve
T
hrough the years Tennessee has see its share of scandals involving elected politicians. The most recent being an investigation which was code named “Tennessee Waltz.” As a result, several elected officials, including one school board member lost their seats, were convicted of criminal activity and spent time in prison. In 2008, the General Assembly amended the “Comprehensive Governmental Ethics Reform Act of 2006,” which is codified in T.C.A. 8-17-101 et. seq. The original law required local governments to adopt ethical standards related to the acceptance of gifts and disclosure of conflicts of interest. With the exception of special school districts, boards of education and their employees fell under the standards adopted by their respective county or city legislative bodies. The General Assembly, with TSBA’s support, amended the law with SB 3024/HB 2544 (Public Chapter 898) to recognize local boards of education as separate government entities for the purpose of adopting their own ethical standards. The text of the law is included on pages 2.11-2.14. Boards of Education who hold themselves to even higher standards of ethical behavior will want to consider adopting the TSBA Boardsmanship Code of Ethics which may be found on pages 2.8-2.9. Adoption of this policy is one of the requirements boards must meet in order to qualify as a TSBA Board of Distinction.
Overview of the TSBA Model Code of Ethics Section 1. This section defines terms used in the code. The Ethics Reform Act requires school districts to provide for disclosure of “personal interests that impact or appear to impact” the discretion of officials and employees. Under the model code, a “personal interest” that must be disclosed publicly is defined as a financial interest of the official or employee or a financial interest of a spouse or child who lives in the same household with the official or employee. A school district may choose to define “personal interest” in another way that meets the requirements of the act. Section 2. This section deals with the disclosure of personal interests by persons whose duty it is to vote on school district matters. The Ethics Reform Act requires school districts to provide for “reasonable and systematic disclosure” of “personal interests that impact or appear to impact” the discretion of officials and employees. A school district may choose to develop language different from the TSBA model code to meet these requirements.
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Ethical Behavior Section 3. This section deals with matters where a vote is not involved but which require the exercise of discretion. Officials and employees must publicly disclose any personal interest that affects or would lead a reasonable person to believe it affects the person’s exercise or discretion. The disclosure is to be made on a disclosure form that is attached to the model code, and the form is to be filed with the district’s central office. The Ethics Reform Act requires counties to provide for “reasonable and systematic disclosure” of “personal interests that impact or appear to impact” the discretion of officials and employees. This section of the TSBA model code is one way to meet these requirements. Section 4. This section prohibits official and employees from accepting gifts under certain circumstances. The Ethics Reform Act requires school districts to provide “limits on and/or reasonable and systematic disclosure of gifts or other things of value received by official and employees that impact or appear to impact their discretion.” This model code is one option to meet this requirement; however, a school district may choose another method. Section 5. This section provides that the school board may create a School District Ethics Committee. The Ethics Reform Act does not contain any provisions regarding enforcement of the ethical standards or specific penalties, but instead provides that violations of ethical standards are to be enforced under existing law. While it is not required under the Ethics Reform Act, the model code sets up a mechanism for filing complaints of violations of the code. The formation of an ethics committee is at the complete discretion of the school district, however, as the Ethics Reform Act does not mandate its creation or the designation of any other local office to receive complaints. Appendix. This section lists and briefly summarizes most of the state laws currently in effect governing ethics in school districts. While the Ethics Reform Act does not require that these laws be included in your adopted ethical standards, officials and employees need to be made aware of these laws. It is also important to note that these state laws operate regardless of the code of ethics a school district adopts. Note: Portions of the TSBA Model Code of Ethics, its overview and instructions were developed or reproduced with the guidance of the County Technical Assistance Service Model Ethics Policy. Special thanks to the University of Tennessee for its assistance in this matter.
Adoption of Ethical Standards Adoption of the TSBA Model Code of Ethics is not required. You are free to adopt your own policy, but if you adopt something other than the model you must file the entire code with the Tennessee Ethics Commission. If you adopt the TSBA model with no changes, you may simply notify the Ethics Commission in writing that you have adopted the model code. Please note that all filing is with the Tennessee Ethics Commission, not TSBA.
School Law
5.2
Ethical Behavior After your ethical standards have been filed, any amendments or modifications must be filed with the Ethics Commission as soon as possible.
School Law
5.3
Ethical Behavior MODEL ETHICAL STANDARDS
CODE OF ETHICS ____________________ SCHOOL DISTRICT Section 1. Definitions. (1) “School district” means ___________ School District, which was duly created by a public or private act of the General Assembly; and which includes all boards, committees, commissions, authorities, corporations or other instrumentalities appointed or created by the school district or an official of the school district. (2) “Officials and employees” means and includes any official, whether elected or appointed, officer, employee or servant, or any member of any board, agency, commission, authority or corporation (whether compensated or not), or any officer, employee or servant thereof, of the school district. (3) “Personal interest” means, for the purpose of disclosure of personal interests in accordance with this Code of Ethics, a financial interest of the official or employee, or a financial interest of the official’s or employee’s spouse or child living in the same household, in the matter to be voted upon, regulated, supervised, or otherwise acted upon in an official capacity. Section 2. Disclosure of personal interest in voting matters. An official or employee with the responsibility to vote on a measure shall disclose during the meeting at which the vote takes place, before the vote and to be included in the minutes, any personal interest that affects or that would lead a reasonable person to infer that it affects the official’s or employee’s vote on the measure. In addition, the official or employee may, to the extent allowed by law, recuse himself or herself from voting on the measure. Section 3. Disclosure of personal interest in non-voting matters. An official or employee who must exercise discretion relative to any matter other than casting a vote and who has a personal interest in the matter that affects or that would lead a reasonable person to infer that it affects the exercise of the discretion shall disclose, before the exercise of the discretion when possible, the interest on the attached disclosure form and file the disclosure form with the school district’s central office. In addition, the official or employee may, to the extent allowed by law, recuse himself or herself from the exercise of discretion in the matter. Section 4. Acceptance of gifts and other things of value. An official or employee, or an official’s or employee’s spouse or child living in the same household, may not accept, directly or indirectly, any gift, money, gratuity, or other consideration or favor of any kind from anyone other than the school district that a reasonable person would TSBA Model Code of Ethics
School Law
5.4
Ethical Behavior MODEL ETHICAL STANDARDS understand was intended to influence the vote, official action or judgment of the official or employee in executing decision-making authority affecting the school district. It shall not be considered a violation of this policy for an official or employee to receive entertainment, food, refreshments, meals, health screenings, amenities, foodstuffs, or beverages that are provided in connection with a conference sponsored by an established or recognized statewide association of school board officials or by an umbrella or affiliate organization of such statewide association of school board officials. Section 5. Ethics Complaints. The school district may create a School District Ethics Committee (the “Ethics Committee”) consisting of three members who will be appointed to one-year terms by the Chairman of the Board of Education with confirmation by the board of education. At least two members of the committee shall be members of the board of education. The Ethics Committee shall convene as soon as practicable after its appointment and elect a chair and a secretary. The records of the Ethics Committee shall be maintained by the secretary and shall be filed in the office of the director of schools, where they shall be open to public inspection. Questions and complaints regarding violations of this Code of Ethics or of any violation of state law governing ethical conduct should be directed to the chair of the Ethics Committee. Complaints shall be in writing and signed by the person making the complaint, and shall set forth in reasonable detail the facts upon which the complaint is based. The School District Ethics Committee may investigate any credible complaint against an official or employee charging any violation of this Code of Ethics, or may undertake an investigation on its own initiative when it acquires information indicating a possible violation, and make recommendations for action to end or seek retribution for any activity that, in the Committee’s judgment, constitutes a violation of this Code of Ethics. If a member of the Committee is the subject of a complaint, such member shall recuse himself or herself from all proceedings involving such complaint. The Committee may: (1) refer the matter to the Board Attorney for a legal opinion and/or recommendations for action; (2) in the case of an official, refer the matter to the school board body for possible public censure if the board body finds such action warranted; (3) in the case of an employee, refer the matter to the official responsible for supervision of the employee for possible disciplinary action if the official finds discipline warranted; (4) in a case involving possible violation of state statutes, refer the matter to the district attorney for possible ouster or criminal prosecution; TSBA Model Code of Ethics
School Law
5.5
Ethical Behavior MODEL ETHICAL STANDARDS The interpretation that a reasonable person in the circumstances would apply shall be used in interpreting and enforcing this Code of Ethics. When a violation of this Code of Ethics also constitutes a violation of a personnel policy or a civil service policy, the violation shall be dealt with as a violation of the personnel or civil service provisions rather than as a violation of this Code of Ethics.
TSBA Model Code of Ethics
School Law
5.6
Ethical Behavior MODEL ETHICAL STANDARDS
____________ SCHOOL DISTRICT CODE OF ETHICS CONFLICT OF INTEREST DISCLOSURE STATEMENT Instructions: This form is for reporting personal interests required to be disclosed under Section 3of the Code of Ethics of this school district. Officials and employees are required to disclose personal interests in matters that affect or would lead a reasonable person to infer that it would affect the exercise of discretion of an official or employee. 1. Date of disclosure: ________________________________________________________ 2. Name of official or employee:_______________________________________________ 3. Office and position:_____________________________________________ 4. Description of personal interest (describe below in detail):
________________________________ Signature of official or employee
________________________________ Witness Signature ________________________________ Printed name of witness
TSBA Model Code of Ethics
School Law
5.7
Ethical Behavior
Tennessee School Boards Association Monitoring:
Review: Annually, in September
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41
Descriptor Term:
Boardsmanship Code of Ethics
Descriptor Code: Issued Date:
1.1061
Rescinds:
Issued:
The Board adopts these standards as recommended by the Tennessee School Boards Association as a guide to its members as they provide educational leadership for the youth of our state. ARTICLE I.
MY RELATIONS TO THE CHILDREN
Section 1.
I will at all times think in terms of “children first,” always determining other important things according to how they affect education and training of children.
Section 2.
I will seek to provide equal educational opportunities for all children regardless of ability, race, color, sex, creed or location of residence.
ARTICLE II.
MY RELATIONS TO MY COMMUNITY
Section 1.
I will endeavor to appraise fairly both the present and future educational needs of the community and to support improvements as finances permit.
Section 2.
I will represent at all times the entire school community and refuse to represent special interests or partisan politics.
Section 3.
I will endeavor to keep the community informed about the progress and needs of the schools.
ARTICLE III.
MY RELATIONS TO TEACHERS AND PERSONNEL
Section 1.
I will support the employment of those persons best qualified to serve as employees and insist on a regular and impartial evaluation of all staff.
Section 2.
I will support and protect personnel in performance of their duties.
Section 3.
I will not criticize employees publicly but will make such criticism to the director of schools for investigation and action if necessary.
Page 1 of 2
School Law
5.8
Ethical Behavior Effective Boardsmanship Standards 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49
ARTICLE IV.
1.1061
MY RELATIONS WITH OTHER BOARD MEMBERS
Section 1.
I will recognize that authority rests only with the Board in official meetings and that the individual member has no legal status outside of such meetings.
Section 2.
I will refuse to make promises as to how I will vote on a matter which should properly come before the Board as a whole.
Section 3.
I will make decisions only after full discussion of matters at a board meeting.
Section 4.
I will respect the opinion of other members and will accept the principle of “majority rule.”
ARTICLE V.
MY RELATIONS WITH THE DIRECTOR OF SCHOOLS
Section 1.
I will support full administrative authority as well as responsibility for the director of schools to properly discharge all professional duties.
Section 2.
I will support director of schools' accountability for working and requiring staff to work within the framework of policies set up by the Board.
Section 3.
I will refer all complaints and concerns to the director of schools.
ARTICLE VI.
MY RELATIONS TO MYSELF
Section 1.
I will inform myself about my duties and responsibilities and current educational issues by individual study and through participation in programs providing needed information, such as those sponsored by my state and national school boards associations.
Section 2.
I will avoid being placed in a position of conflict of interest, and will refrain from using my board position for personal or partisan gain.
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School Law
5.9
Ethical Behavior
Legal Reference Materials
School Law
5.10
Ethical Behavior Title 8 Public Officers And Employees Chapter 17 Ethical Standards for Officials and Employees 8-17-101. Legislative intent. It is the intent of the general assembly that the integrity of the processes of local government be secured and protected from abuse. The general assembly recognizes that holding public office and public employment is a public trust and that citizens of Tennessee are entitled to an ethical, accountable and incorruptible government. 8-17-102. Chapter definitions -- Application to jointly created instrumentalities, utility districts and school districts. (a) As used in this chapter, unless the context otherwise requires: (1) “Commission” means the Tennessee ethics commission; (2) “County” means a county, metropolitan or consolidated government, inclusive of any boards, commissions, authorities, corporations or other instrumentalities appointed or created by the county or an official of the county. Furthermore, for the purpose of this chapter, the county election commission shall be considered an instrumentality of county government; and the administrator of elections and other employees of the election commission shall be considered county employees. Likewise, for the purpose of this chapter, the county health department shall be considered a county department and its employees shall be considered county employees; (3) “Ethical standards” includes rules and regulations regarding limits on, and/or reasonable and systematic disclosure of, gifts or other things of value received by officials and employees that impact or appear to impact their discretion, and shall include rules and regulations regarding reasonable and systematic disclosure by officials and employees of their personal interests that impact or appear to impact their discretion. The term “ethical standards” does not include personnel or employment policies or policies or procedures related to operational aspects of governmental entities; (4) “Municipality” means an incorporated city or town, inclusive of any boards, commissions, authorities, corporations or other instrumentalities appointed or created by the municipality; and
School Law
5.11
Ethical Behavior (5) “Officials and employees” means and includes any official, whether elected or appointed, officer, employee or servant, or any member of any board, agency, commission, authority or corporation, whether compensated or not, or any officer, employee or servant thereof, of a county or municipality. (b) If a board, commission, authority, corporation or other instrumentality is created by two (2) or more local government entities, such creating entities shall, by amendment to the interlocal agreement or other agreement creating such joint instrumentality, designate the ethical standards that govern the jointly created instrumentality. (c) Utility districts shall be considered separate governmental entities and shall be governed by ethical standards established by the board of commissioners of the utility district in conformity with § 8-17-105(b). Water, wastewater and gas authorities created by a private act or under the general law shall be considered separate governmental entities and shall be governed by ethical standards established by the governing board of the water, wastewater or gas authority in conformity with § 8-17-105(b). (d) County, municipal and special school districts shall be considered separate governmental entities and shall be governed by ethical standards established by the board of education of the school district. 8-17-103. Adoption of ethical standards. (a) Not later than June 30, 2007, the governing body of each entity covered by this chapter shall adopt by ordinance or resolution, as appropriate, ethical standards for all officials and employees of such entity. To the extent that an issue covered by an ethical standard is addressed by a law of general application, public law of local application, local option law, or private act, any ethical standard adopted by a governing body shall not be less restrictive than such laws. (b) By resolution of the county legislative body, any county having a population of eight hundred thousand (800,000) or more, according to the 2000 census or any subsequent federal census, may elect to include all of its administrative officials and employees and all of its legislative officials and employees within the meaning and scope of the provisions of title 3, chapter 6, part 3, as if the county officials and employees were officials and employees of state government. Upon adopting the resolution on or before June 30, 2007, the county shall be deemed to be in compliance with the requirements of this part; provided, that the county shall periodically reimburse the Tennessee ethics commission for the commission’s increased costs arising from oversight and regulation of the county officials and employees.
School Law
5.12
Ethical Behavior 8-17-104. Standards open to public inspection -- Filing standards and amendments with ethics commission. Each entity covered by this chapter shall maintain, for public inspection, the ethical standards of such entity and shall cause a copy of the adopted standards to be filed with the ethics commission. Any amendments or other modifications to the ethical standards shall also be filed with the commission as soon as practical after adoption by the governing body. 8-17-105. Adoption of models of ethical standards. (a) The municipal technical advisory service (MTAS) for municipalities, the county technical assistance service (CTAS) for counties, and the Tennessee School Boards Association (TSBA) for school districts, in order to provide guidance and direction, shall disseminate models of ethical standards for officials and employees of those entities. The models shall be filed with the commission. Any municipality, county or school district that adopts the ethical standards for officials and employees of local government or school districts promulgated by MTAS, CTAS or TSBA is not required to file the policy with the commission but shall notify the commission in writing that the policy promulgated by MTAS, CTAS or TSBA was adopted and the date the action was taken. (b) (1) In order to provide guidance and direction to water, wastewater and gas authorities created by a private act or under the general law and to utility districts, the Tennessee Association of Utility Districts (TAUD) shall prepare a model of ethical standards for officials and employees of water, wastewater and gas authorities created by private act or under the general law and of utility districts. The model shall be submitted to the utility management review board for its review and approval pursuant to ยง 7-82-702(16). The utility management review board shall approve by order the TAUD model of ethical standards before the model may be adopted by any water, wastewater or gas authority created by a private act or under the general law or by any utility district. After the utility management review board approves the TAUD model, the TAUD model shall be filed with the commission. (2) The governing body of a water, wastewater or gas authority created by a private act or under the general law or of a utility district that adopts ethical standards for its officials and employees shall either adopt the TAUD model of ethical standards approved by the utility management review board or must adopt ethical standards that are more stringent than the TAUD model. If a water, wastewater or gas authority created by a private act or under the general law or a utility district adopts ethical standards that are different from and more stringent than the TAUD model, the more stringent ethical standards shall be submitted to the utility management review board which shall make a finding by order that the ethical standards adopted are more stringent than the TAUD model.
School Law
5.13
Ethical Behavior (3) Any water, wastewater or gas authority created by a private act or under the general law or any utility district that adopts the TAUD model of ethical standards is not required to file its ethical standards with the commission but shall notify the commission in writing that the TAUD model of ethical standards was adopted and the date that action was taken. (4) Any water, wastewater or gas authority created by a private act or under the general law or any utility district that does not adopt the TAUD model of ethical standards or ethical standards more stringent than the TAUD model shall be governed by the ethical standards established by the county legislative body of the county in which the water, wastewater or gas authority created by a private act or under the general law or the utility district has the largest number of customers.
8-17-106. Removal from office for failure to adopt ethical standards -- Violations of standards. (a) Members of a governing body of an entity covered by this chapter who fail to adopt ethical standards as provided in this chapter shall be subject to removal from office as provided in chapter 47 of this title. (b) Violations of ethical standards by officials or employees of entities covered by this chapter shall be enforced in accordance with provisions of existing law; provided, that no civil penalties for a violation of title 3, chapter 6, part 3 shall be imposed by the ethics commission on an employee of entities covered by this chapter. The ethics commission shall instead refer the commission’s findings and recommendations for appropriate action to the appropriate official with supervisory authority over the person.
Contact Information Bureau of Ethics and Campaign Finance 404 James Robertson Parkway, Ste. 104 Nashville, TN 37243 615-741-7959 ethics.counsel@tn.gov http://www.tennessee.gov/sos/tec/local_government.htm
School Law
5.14
Ethical Behavior
Conflict of Interest 12-4-101. Personal interest of officers prohibited. (a) (1) It is unlawful for any officer, committee member, director, or other person whose duty it is to vote for, let out, overlook, or in any manner to superintend any work or any contract in which any municipal corporation, county, state, development district, utility district, human resource agency, or other political subdivision created by statute shall or may be interested, to be directly interested in any such contract. Directly interested means any contract with the official personally or with any business in which the official is the sole proprietor, a partner, or the person having the controlling interest. Controlling interest includes the individual with the ownership or control of the largest number of outstanding shares owned by any single individual or corporation. The provisions of this subdivision (a)(1) shall not be construed to prohibit any officer, committee person, director, or any person, other than a member of a local governing body of a county or municipality, from voting on the budget, appropriation resolution, or tax rate resolution, or amendments thereto, unless the vote is on a specific amendment to the budget or a specific appropriation or resolution in which such person is directly interested. (2) (A) Subdivision (a)(1) shall also apply to a member of the board of directors of any not-for-profit corporation authorized by the laws of Tennessee to act for the benefit or on behalf of any one (1) or more counties, cities, towns and local governments pursuant to the provisions of title 7, chapter 54 or 58. (B) Subdivision (a)(2)(A) do not apply to any county with a metropolitan form of government and having a population of four hundred thousand (400,000) or more, according to the 1980 federal census or any subsequent federal census. (b) It is unlawful for any officer, committee member, director, or other person whose duty it is to vote for, let out, overlook, or in any manner to superintend any work or any contract in which any municipal corporation, county, state, development district, utility district, human resource agency, or other political subdivision created by statute shall or may be interested, to be indirectly interested in any such contract unless the officer publicly acknowledges such officer’s interest. Indirectly interested means any contract in which the officer is interested but not directly so, but includes contracts where the officer is directly interested but is the sole supplier of goods or services in a municipality or county. (c) (1) Any member of a local governing body of a county or a municipality who is also an employee of such county or municipality and whose employment predates the member’s initial election or appointment to the governing body of the county or municipality may vote on matters in which the member has a conflict of interest if the member informs the governing body immediately prior to the vote as follows:
School Law
5.15
Ethical Behavior “Because I am an employee of (name of governmental unit), I have a conflict of interest in the proposal about to be voted. However, I declare that my argument and my vote answer only to my conscience and to my obligation to my constituents and the citizens this body represents. The vote of any such member having a conflict of interest who does not so inform the governing body of such conflict shall be void if challenged in a timely manner. As used in this subdivision (c)(1), timely manner means during the same meeting at which the vote was cast and prior to the transaction of any further business by the body.� (2) Any member of a local governing body of a county or a municipality who is also an employee of such county or municipality and whose employment began on or after the date on which the member was initially elected or appointed to serve on the governing body of the county or municipality shall not vote on matters in which the member has a conflict of interest. (3) (A) In the event a member of a local governing body of a county or a municipality has a conflict of interest in a matter to be voted upon by the body, such member may abstain for cause by announcing such to the presiding officer. (B) (i) Any member of a local governing body of a municipality who abstains from voting for cause on any issue coming to a vote before the body shall not be counted for the purpose of determining a majority vote. (ii) This subdivision (c)(3)(B) shall in no way be construed to apply to any county having a metropolitan form of government and having a population in excess of five hundred thousand (500,000), according to the 1990 federal census or any subsequent federal census. (d) The provisions of this section shall apply to a member of the board of directors or officer of any nonprofit corporation required under 8-44-102(b)(1)(E) to conduct all meetings of its governing body as open meetings.
School Law
5.16