TEXT OF LAWSUIT FILED BY SCHOOLS AGAINST THE STATE OF TENNESSEE

¡N THE CHANCERY COURT FOR DAVIDSON COUNTY. TENNESSEE
V
HAMILTON COUNTY BOARD
OF EDUCATION;
BRADLEY COUNTY BOARD
OF EDUCATION;
McMINN COUNTY BOARD
OF EDUCATION;
MARION COUNTY BOARD
OF EDUCATION;
GRUNDY COUNTY BOARD
OF EDUCATION:
COFFEE COUNTY BOARD
OF EDUCATION; and
POLK COUNTY BOARD
OF EDUCATION,
Plaintiffs;
WILLIAM HASLAM, in his official
capacity as the GOVERNOR OF
TENNESSEE; RON RAMSEY, in his
official capacity as the SPEAKER OF
THE TENNESSEE SENATE; BETH
HARWELL, in her official capacity
as the SPEAKER OF THE TENNESSEE
HOUSE OF REPRESENTATIVES;
CANDICE MCQUEEN, in her
official capacity as TENNESSEE
COMMISSIONER OF EDUCATION;
B. FIELDING ROLSTON, MIKE
EDWARDS, ALLISON CHANCEY,
LONNIE ROBERTS, CAROLYN
PEARRE, WENDY TUCKER,
LILLIAN HARTGROVE, CATO JOHNSON,
and WILLIAM TROUTT in their official
capacities as MEMBERS OF THE
TENNESSEE BOARD OF EDUCATION
Defendants.
COMPLAINT FOR DEC AND INJUNCTIVE RELIEF
NO
NOW COME the Plaintiffs, by and through counsel, and allege that the State of
Tennessee has breached its duty under the Tennessee Constitution to provide a system
of free public education for the children of this State and has instead created a system
that ímpermissibly shifts the cost of education to local boards of education, schools,
teachers and students, resulting in substantially unequal educational opportunities
across the State and even within the Plaintiffs’ counties. In support of these allegations,
the Plaintiffs would show this Court as follows:
1. Each of the Plaintiffs is a local board of education existing pursuant to
T.C.A. S 49-1 -102(c) for the purpose of operating a local public school system within its
own county. Each local board of education brings this action on behalf of itself, the
teachers whom it employs, and the students whom it educates.
2. The Defendants are officials of the State of Tennessee charged with the
constitutional and statutory obligation of providing students in Tennessee with a free
public education. ln particular, William Haslam is the Governor of the State of
Tennessee and has both the constitutional and statutory obligation to enforce the laws
of this State. Ron Ramsey and Beth Harwell are the Speakers of the Tennessee
Senate and the Tennessee House of Representatives, respectively, whose legislative
chambers have the responsibility to fund Tennessee’s system of public education.
Candice McQueen is the Commissioner of Education and has the primary responsibility
of formulating policies and regulations for consideration by the State Board of
Education. B. Fielding Rolston, Mike Edwards, Allison Chancey, Lonnie Roberts,
Carolyn Pearre, Wendy Tucker, Lillian Hartgrove, Cato Johnson, and William Troutt are
members of the Tennessee State Board of Education and have the authority under
T.C.A. S 49-1-102(a) to promulgate rules and regulations establishing the standards of
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operations for public schools throughout the State. The State Board of Education also
has the authority under T.C.A. S 49-3-305(a) to establish rules and regulations
governing the funding of Tennessee’s public schools.
3. This is an action brought pursuant to the Tennessee Declaratory
Judgments Act, T.C.A. S 29-1 4-101 ef seg., in which the Plaintiffs ask this Court to find
and declare that the State has breached its duty under the education clause of the
Tennessee Constitution, Article Xl, Section 12, inasmuch as it has failed to provide
Tennessee’s students with a system of free public education; that the State’s system of
financing public education violates the equal protection clauses of the Tennessee
Constitution, Article l, Section 8, and Article Xl, Section 8, inasmuch as the State has
not provided a free education to students, compelling schools in comparatively more
affluent communities to shift these costs to students and their parents and schools in
less affluent communities to cut services or to do without educational opportunities; that
the State is violating T.C.A. S 49-1 -102(a) inasmuch as the State has failed to
implement its own laws calculated to provide for an equitable level of educational
funding across the State; and that the State has violated Article ll, Section 24 of the
Tennessee Constitution by imposing a series of unfunded mandates upon the
communities of this State, all of which have impaired the abilities of the Plaintiffs to fulfill
their statutory obligations to the children of their respective counties.
4. lnasmuch as this is an action against the State of Tennessee, venue is
proper before this Court pursuant to T.C.A. S 4-4-104 and T.C.A. S 20-4-101 .
SCHOOL FUNDING LITIGATION
5. ln 1993, in the case of Tennessee Small School Systems v. McWherter et
al., 851 S.W.2d 139 (Tenn. 1993), the Tennessee Supreme Court held that the
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Tennessee Constitution provides students in Tennessee with a fundamental right to a
free public education. This fundamental right includes, at a minimum, "the opportunity
to acquire general knowledge, develop the powers of reasoning and judgment, and
generally prepare intellectually for a mature life." ld. at 150-51. The Supreme Court
also found that this constitutional right is an enforceable standard that compels the
General Assembly to design and maintain a system of free public education. ld. at 151.
6. Additionally, the Supreme Court held that the General Assembly may not
shift its constitutional responsibility to provide a statewide system of free public
education to local communities without violating the equal protection clauses of the
Tennessee Constitution. ld. at 154-55. The Court specifically found that the State’s
then-existing system of funding education was heavily dependent upon the ability and
desire of local governments to augment the State’s own funding effort such that there
were wide disparities across the State among the educational opportunities available to
different children. ld. at 155-56.
7. ln 1992, while Tennessee Small School Svstems v. McWherter et al. was
pending, the General Assembly enacted the Basic Education Program (the BEP). The
BEP was the State’s first comprehensive effort to measure the true cost of operating a
system of public education in Tennessee and to spread those costs equitably across the
State based upon a local government’s ability to share these costs. The BEP attempted
to determine these costs by identifying 42 separate cost components. The BEP also
created a Review Committee whose task it was to determine the actual cost of these 42
different components in each of the local boards of education and to make
recommendations to the State Board of Education, the Commissioner of Education, the
Senate, and the House of Representatives regarding funding.
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8. ln 1995, the Tennessee Supreme Court once again heard Tennessee
Small School Systems v. McWherter et al , 894 S.W .2d 734 (Tenn. 1995), this time
focusing on whether the BEP fulfilled the General Assembly’s constitutional duty to
provide a system of free public education and to fund this system in a way that provided
substantially equal opportunities. The Supreme Court noted favorably that, if fully
implemented, the BEP would fund 75o/o of the school systems’ classroom costs and
50% of its non-classroom support costs. ld. at 737.
9. While recognizing the merits of the BEP, the Supreme Court nevertheless
noted one constitutionally significant defect. Although the BEP had taken into account
dozens of different cost components that local boards of education confront in operating
their school systems, the BEP did not take into account what the Supreme Court held to
be "the most important component of any education plan or system," the cost of
teachers’ compensation and benefits. ld. at 738. The Supreme Court therefore ruled
that "the failure to provide for the equalization of teachers’ salaries according to the BEP
formula puts the entire plan at risk realistically and, therefore, legally." ld.
10. Subsequently, in 2OO2, the Tennessee Supreme Court heard Tennessee
Small School Svstems v. McWherter et al., 91 S.W.3d 232 (Tenn. 2002), a third time.
The Supreme Court once again found that the State had failed to provide adequately for
the cost of teachers’ salaries and to equalize them across the State. ld. at 240-41.
Curiously, the State had not amended the BEP to include the cost of employing
teachers but instead had enacted T.C.A. S 49-3-366, which was a one-time attempt to
equalize teachers’ salaries. This salary equity plan, however, did not investigate the
actual costs that school systems were incurring in employing teachers, and it did not
attempt to equalize these costs across the State. Indeed, the Supreme Court found that
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the GeneralAssembly had actually ignored the recommendations of its own BEP
Review Committee. The Supreme Court therefore noted prophetically that "whatever
the average salary may have been in 1998-1999, it is clear that the target salary in [the
State’sl equity plan bears no relationship to the current, actual cost of providing
teachers as this opinion is written in 2002, leaving a gap that will widen with each
passing year." ld. at240.
THE BEP 2.0
11. ln 2007, the General Assembly amended its Basic Education Program to
include the cost of teachers within the funding formula. The General Assembly further
provided that the cost of these positions would be adjusted from time to time to track the
recommendations of the Review Committee.
12. These changes, however, were to be phased in with funds that might be
made available through the general appropriations act. Apart from a one-time
adjustment that did not close the funding gap, fhese funds have never been
appropriafed, as a consequence of which the funding gap of approximately $3,800 per
teacher per year that existed in 2002 is now approximately $10,000 per teacher per
year. ln total, fhe Sfafe’s funding formula underestimates the cosf of teachers’sa/anes
by approximately $532 million.
13. Additionally, despite the stated intention of covering the costs of teachers
in the BEP, the State has never made provision for the actual cost of teachers’ health
insurance. Although local boards of education employ teachers for an entire year, the
State only allows for ten months’ of insurance coverage. As a consequence, fhe Sfafe’s
fundíng formula underestimates the cosf of teachers’ insurance by approximately $64
million.
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14. Furthermore, while the BEP formula presumes that the State will pay 75o/o
of classroom costs, it presently pays only 70o/o of these costs, resulting in an annual
shortfall of approximately $134 million even before taking into consideration that the
State already uses artificially low figures associated with the cost of operating the
school system.
15. Meanwhile, pursuant to its statutory duty under T.C.A. S 49-1-302(4XB)
and T.C.A. S 49-3-351(a), the BEP Review Committee has consistently made a number
of recommendations to the State Board of Education, the Commissioner of Education,
and both Houses of the Tennessee General Assembly designed to fund the true cost of
operating Tennessee’s system of public education. The State, however, has simply
ignored the recommendations of the BEP Review Committee.
16. Most recently, on November 1,2014, the BEP Review Committee issued
a report finding the BEP formula failed to estimate accurately a local board of
education’s cost of insuring its teachers; failed to utilize the actual salary costs a local
board of education incurs in employing its teachers; failed to provide the requisiteTSo/o
of classroom expenses set forth under Tennessee law; used too high a class size ratio
in generating the number of BEP-funded instructional positions; failed to provide
necessary costs associated with professional development and mentoring of teachers;
failed to fund school nurses and technology coordinators; failed to provide adequate
funding for teaching materials and supplies; failed to account for the increased use of
technology within school systems; failed to account for the cost of inflation as related to
a local board of education’s technology costs; and failed to fund necessary positions
associated with the increased use of technology. ln total, the BEP Review Committee
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concluded that the General Assembly is underfunding education in Tennessee by
hundreds of millions of dollars.
EDUCATION REFORM EFFORTS
17. As part of its constitutional duty to establish an excellent system of public
education for Tennessee’s children so that, upon graduation from the State’s public
schools, they might function effectively in the modern economy, the State has been
pursuing education reform. As part of these reform efforts, the State has adopted
rigorous academic standards for its students and has created a system of accountability
measures designed to assess the extent to which local boards of education are
achieving these academic standards.
18. ln pursuit of these standards, the State has essentially rewritten much of
the curriculum that Tennessee’s teachers have used for many years. Along with this
new curriculum, teachers are challenged to use different pedagogy to spur their
students’ critical thinking skills. This higher order thinking, as distinct from rote
knowledge, is essential for Tennessee students to function in the 21st century economy.
19. Similarly, the State has established a series of tests, intended as
accountability measures, to track the students’ progress and to hold local boards of
education accountable for student achievement. Students are expected to take these
tests online to provide for quick feedback to the teachers and the local boards of
education.
20. As an essential component of this education reform, the State has also
required local boards of education and their teachers to implement a program known as
Response to lntervention (RTl). This program, which is excellent pedagogy, requires
local boards of education and their teachers to spend extra time with students who are
I
slow to grasp core concepts. Once a teacher identifies a child as having difficulty with
the class, the school system is to put the child through a series of assessments and to
provide him or her with up to 120 minutes of additional, more intensive instruction per
week.
THE FINANCIAL DILEMMA
21. While these higher academic standards and their accompanying
accountability measures are sound educational policy, they exacerbate the financial
needs of an already strained system of public education. For example, although the
State’s new curriculum now places a premium upon creative means of conveying
instruction to students, the General Assembly has not increased the allowance to
classroom teachers for the purchase of classroom materials. Similarly, even though the
State now requires local boards of education to assess their students through various
online tests, the State has made no allowance for the purchase of sufficient digital
devices so students can take these tests. With regard to RTl, which requires local
boards of education to assess struggling students and to provide additional instruction
to them, the State has made no allowance for the purchase of the assessment materials
or the personnel costs associated with the additional hours of instruction the local
boards of education now owe to eligible students.
22. These new demands on local boards of education are in addition to the
financial difficulties they already face. Thus, the funding gap is magnified, forcing local
boards of education, regardless of where they are located, to take drastic steps to meet
the financial pressures created by the General Assembly’s failure to fund the true cost
of public education.
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23. ln comparatively more affluent communities, parents are often expected to
pay hundreds of dollars in fees as part of enrolling their children in nominally free public
schools. (As a tacit admission that some schools have become dependent upon fees,
the State Board of Education has even promulgated rules governing the fees that local
boards of education may charge for attending what should be the free public schools.)
Later in the year, parents may be expected to participate in fundraising activities or to
solicit donations from localfoundations. (Again, as a tacit admission that some schools
have become dependent upon fundraising, the GeneralAssembly has enacted statutes
governing school support organizations.) These outside funds defray the cost of
operating the schools so that school administrators may be able to hire teachers to
teach classes, hire assistants who provide intervention, purchase electronic devices for
use in student assessment, and othen¡vise meet the financial needs not covered by the
State.
24. ln less affluent communities, sometimes within the same county, there are
insufficient resources available to operate a school. In the absence of adequate funds
to provide a free public education to their students, and lacking the financial capacity
within the community to request the payment of school fees or to solicit fundraising or
charitable donations, teachers themselves oftentimes contribute hundreds of dollars of
their own money and volunteer their own time to meet the needs of their students. ln
other situations, school administrators have had to take drastic steps such as cutting
basic services to the detriment of educational opportunities available to children.
COUNT ONE: THE EDUCATION CLAUSE
25. Article Xl, Section 12 of the Tennessee Constitution provides in material
part that "the General Assembly shall provide for the maintenance, support and
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eligibility standards of a system of free public schools." This provision of the Tennessee
Constitution creates for Tennesseans a fundamental right to a free public education that
is calculated, at a minimum, to provide students with the opportunity to acquire general
knowledge, to develop the powers of reasoning and judgment, and generally to prepare
students intellectually for a mature life.
26. While the General Assembly has adopted educational standards that
satisfy the substantive aspect of the education clause, it has failed to provide a system
of free public education. To the contrary, the present system has impermissibly shifted
the burden of financing public education to the students and parents themselves or,
alternatively, to the teachers who work within the system. There is no compelling
interest that justifies the State’s failure to provide Tennesseans with their fundamental
right to a free public education.
27. The General Assembly has been aware of its obligation to fund a system
of free public education across the State for more than 20 years and yet has been
deliberately indifferent to its constitutional duty. ln view of the General Assembly’s
persistent failure to provide Tennesseans with this fundamental right, this Court must
order the State to fund the true cost of public education with all deliberate speed.
COUNT TWO: EQUAL PROTECTION OF THE LAW
28. Article l, Section 8 and Article Xl, Section 8 of the Tennessee Constitution,
read together, guarantee equal privileges for all similarly situated Tennesseans. As
applied to the right to receive a free public education, these constitutional provisions
require that students across Tennessee receive substantially equal educational
opportunities.
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29. Since 1988, when the State’s funding of education was first challenged,
the State has failed to take meaningful steps toward providing substantially equal
educational opportunities for its students. Although it created the BEP Review
Committee for the purpose of identifying the true cost of operating a system of public
education, and although the Review Committee has consistently made
recommendations to the State regarding adjustments to the State’s funding formula and
other steps the State should take to fund education in Tennessee, the State has
consistently ignored these recommendations. As a result, the State’s funding formula
fails to account for the true cost of educating students in Tennessee.
30. Although the State’s failure to fund education was readily apparent prior to
the recent educational reform efforts, these reform measures have only exacerbated the
problem. The State has imposed new requirements and standards on local boards of
education but has not allocated any funds to defray these costs.
31. Accordingly, schools in those communities with the resources and desire
to absorb these costs have done so whereas schools in other communities, sometimes
within the same county, have had to do without basic services. Neither alternative is
appropriate in a State that recognizes a free public education as a fundamental right.
32. ln view of the data that the BEP Review Committee has collected since
1992 to identify the true cost of educating Tennessee’s students, and in view of the wellconsidered
recommendations that the BEP Review Committee has presented to the
State regarding the funding of public education in Tennessee, there is no rational basis
for the General Assembly to have refused to fund these recommendations.
33. Consequently, given the State’s persistent refusal to establish a system of
public education with substantially equal educational opportunities across the State, this
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Court must order the State to implement the present recommendations of the BEP
Review Committee with all deliberate speed and to act upon additional
recommendations from the BEP Review Committee regarding the cost of the State’s
education reforms upon local boards of education.
GOUNT THREE: VIOLATION OF T.G.A S 49-1-102(a)
34. T.C.A. S 49-1 -102(a) provides in material part that "the system of public
education in the State shall be governed in accordance with laws enacted by the
General Assembly and under policies, standards, and guidelines adopted by the State
Board of Education that are necessary for the proper operation of public education in
Kindergarten through Grade 12 (K-12)."
35. The State, however, has ignored its own laws governing the operation of
Tennessee’s public schools. For example, T.C.A. S 49-3-307(a) provides that the State
is to include in its BEP appropriations a number of cost components in its funding
formula. Additionally, this subsection requires that the State fund 75o/o of classroom
costs. To date, however, the General Assembly has failed to include a number of these
components and is funding only 7}o/oof the classroom costs, resulting in a funding
shortfall of approximately $134 million.
36. Furthermore, T.C.A. S 49-3-307(b) provides that the State was to begin
phasing in compliance with these components following the adoption of Chapter 369 of
the Public Acts of 2007. To date, it has taken no steps to phase in these components,
resulting in additionalfunding shortfalls of approximately $600 million.
37. The State’s failure to follow its own laws is irrational and arbitrary, and this
failure is an abdication of the General Assembly’s constitutional duty to provide for a
13
system of free public education. Accordingly, this Court should direct the State to follow
the law and fund the schools according to its own policies and statutes.
COUNT FOUR: UNFUNDED MANDATES
38. Article ll, Section 24 ot the Tennessee Constitution provides in material
part that "no law of general application shall impose increased expenditure
requirements on cities or counties unless the General Assembly shall provide that the
State share in the cost."
39. Since the amendments to the BEP in 2007, not only has the State failed to
implement its own funding statute but also the State has adopted increasingly rigorous
academic standards for Tennessee’s students and accountability measures for local
boards of education. While these standards are entirely appropriate for any Tennessee
student who hopes to compete in the 21tt century economy, the General Assembly has
failed to provide any funds to offset the costs a local board of education must incur in
order to comply with the State’s standards.
40. The State’s failure to make sufficient provision for the cost of its education
reforms is fundamentally unfair to local communities and the students of Tennessee,
and this Court should direct the State to shoulder the burden of funding these reforms.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the Plaintiffs pray for relief as follows:
1. That this Court find and declare that the General Assembly’s present
system of funding education violates Article Xl, Section 12 of the Tennessee
Constitution inasmuch as it does not provide Tennesseans with a free public education.
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2. That this Court find and declare that the General Assembly’s failure to
identify and fund the true cost of educating students in Tennessee fails to provide
Tennesseans with substantially equal educational opportunities.
3. That this Court, recognizing that the GeneralAssembly is violating the
fundamental right of Tennesseans to enjoy a free public education, and that the present
system of financing fails to guarantee substantially equal educational opportunities
across the State, direct the General Assembly to appropriate sufficient funds to
implement the recommendations of the BEP Review Committee dated November 1,
2014, with all deliberate speed;
4. That this Court, in view of the General Assembly’s having established
rigorous education standards as part of its duty under Article Xl, Section 12 of the
Tennessee Constitution, but recognizing that the General Assembly has failed to
account for the costs associated with pursuing these high education standards, direct
the General Assembly to include the cost components associated with pursuing these
measures in the BEP formula;
5. That costs in this matter be taxed against the Defendants; and
6. For such further general and equitable relief as this Court may deem just
and proper.
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Respectfully submitted,
LEITNER, WILLIAMS, DOOLEY & NAPOLITAN,
PLLC
BY
D. SCOTT BENNETT – TNBPR: 01 5988
MARY C. DECAMP – TNBPR:027182
Attorneys for Plaintiffs
Tallan Building, Suite 500
200 West M.L. King Blvd.
Chattanooga, TN. 37402
Telephone : (an) 265-021 4
Telecopie r: (423) 266-5490
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