Shelby County Board Of Education v. Memphis City Board of Education et al

Filing 459

ORDER. Signed by Judge Samuel H. Mays, Jr on 09/27/2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

BOARD OF EDUCATION OF SHELBY
COUNTY, TENNESSEE, et al.,

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Plaintiffs,
v.
MEMPHIS CITY BOARD OF
EDUCATION, et al.,
Defendants.

THE BOARD OF COUNTY
COMMISSIONERS OF SHELBY
COUNTY, TENNESSEE,

No. 11-2101

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Third-Party Plaintiff,
v.
ROBERT E. COOPER, JR., et al.,
Third-Party Defendants.

ORDER

The original Complaint in this matter was filed by the
Board

of

Education

of

Shelby

County,

County Board”) on February 11, 2011.

Tennessee

(ECF No. 1.)

(the

“Shelby

On June 26,

2012, Third-Party Plaintiff the Board of County Commissioners of
Shelby County, Tennessee (the “Commissioners”) moved to file a

Third-Party

Complaint

for

declaratory

relief,

permanent

preliminary injunctive relief, and an expedited hearing.
No. 288.)

and
(ECF

The Commissioners allege that Chapter 905 and Chapter

970 of the Tennessee Public Acts of 2012 and Chapter 1, Section
3 of the Tennessee Public Acts of 2011 violate the Fourteenth
Amendment to the Constitution of the United States and Article
11,

Sections

Tennessee.

8

and

9

of

the

Constitution

of

the

State

of

The Third-Party Complaint names as Defendants Robert

E. Cooper in his official capacity as Attorney General of the
State of Tennessee; Tre Hargett in his official capacity as
Secretary of State of the State of Tennessee; Mark Goins in his
official

capacity

as

Coordinator

Department

of

State:

Division

Department

of

Education;

and

of
of

Elections;

Kevin

Huffman

Tennessee

the

Elections;

the

Tennessee

in

his

official

capacity as Commissioner of the State of Tennessee Department of
Education

(collectively,

Election Commission.
Commissioners‟

the

“State”);

and

the

Shelby

County

On July 5, 2012, the Court granted the

motion.

(ECF

No.

290.)

Complaint was entered on July 5, 2012.

The

Third-Party

(ECF No. 305.)

On July 9, 2012, the Court entered an order allowing the
City

of

Germantown,

the

Town

of

Collierville,

the

City

of

Bartlett, and the City of Lakeland to intervene as Defendants.
(ECF No. 293.)

On July 12, 2012, the Court granted an oral

motion allowing the City of Millington and the Town of Arlington
2

to intervene and align with the other intervening Defendants
(collectively, the “Municipalities”).

On July 11, 2012, the

Court entered an order allowing the City of Memphis and the
Memphis

City

Council

(collectively,

the

Plaintiffs”) to join as Third-Party Plaintiffs.

“Memphis

City

(ECF No. 304.)

On July 12, 2012, the Court held a hearing and denied the
Commissioners‟ request for a preliminary injunction.

On July

13, 2012, the Court bifurcated the Commissioners‟ Tennessee and
United States constitutional claims.
The Commissioners filed an Amended Complaint on August 14,
2012.

(ECF No. 358.)

The Commissioners moved to file a Second

Amended Complaint on August 16, 2012.

(ECF No. 359.)

21, 2012, the Court granted that motion.

On August

(ECF No. 370.)

Second Amended Complaint was entered on August 22, 2012.
No. 371.)
2012.

The
(ECF

The Third Amended Complaint was entered on October 5,

(ECF No. 429) (the “Third Am. Compl.”).)

A trial was held on September 4 and 5, 2012, at which the
Court received proof in the form of testimony and exhibits and
heard oral arguments.

On October 4, 2012, all parties except

the State filed proposed findings of fact and conclusions of
law.

(See Memphis Pls.‟ Findings of Fact and Conclusions of

Law,

ECF

No.

420;

Commissioners‟

Findings

of

Fact

and

Conclusions of Law, ECF No. 421; The Municipalities‟ Findings of
Fact and Conclusions of Law, ECF No. 422.)
3

On October 5, 2012,

the State filed proposed findings of fact and conclusions of law
and adopted portions of the Municipalities‟ findings of fact and
conclusions of law.

(ECF No. 425; 427.)

The Court makes the

following findings of fact and conclusions of law and orders the
following relief.
I.

Background

In 1869, the State of Tennessee granted the Memphis City
Board of Education a charter to operate a public school system
in Memphis.

(August 8, 2011 Order 5-6, ECF No. 243.) (the

“August 8 Order.”)

From 1869 to 2010, Memphis City Schools grew

to become the largest school system in Tennessee and the twentythird largest public school system in the United States.
3.)

It served approximately 105,000 students in 209 schools.

(Id.)
7.0%

(Id.

The

student

Caucasian,

nationalities.

demographics

5.9%

(Id.)

Hispanic,

were

85.7%

African-American,

and

1.4%

other

races

and

Memphis City Schools owned land valued at

$34,699,701, buildings and improvements valued at $802,832,197,
and machinery and equipment valued at $54,694,705.

(Id. 3-4.)

Memphis City Schools had approximately 16,000 full and part-time
staff, including more than 7,000 teachers.

(Id. 4.)

The City of Memphis is located in Shelby County, Tennessee.
The Shelby County Board operated the Shelby County Schools, a
separate

school

system

that

Shelby County outside Memphis.

included
(Id. 4.)
4

all

public

schools

in

Shelby County Schools

had more than 48,000 students and was the fourth largest school
system in Tennessee.

(Id.)

The student demographics were 55.2%

Caucasian, 36.1% African-American, 4.0% Hispanic, 0.4% Native
American, and 4.3% Asian/Pacific Islander.

(Id.)

Shelby County

Schools had 51 schools and more than 5,200 employees.

(Id.)

On December 20, 2010, the Memphis Board of Education (the
“Memphis

City

Board”)

voted

to

dissolve

the

Charter

of

the

Memphis City Schools under Chapter 375 of the Private Acts of
1961.

(Id. 4.)

When the Memphis City Board adopted its December 20, 2010
resolution, Tennessee Code Annotated § 49-2-502(a) provided in
its entirety that:
The
school
board,
school
commissioners,
school
trustees or other duly constituted administrative
officials
of
any
special
school
district
are
authorized
and
empowered
to
transfer
the
administration of the schools in the special school
district to the county board of education of the
county in which the special school district is
located. Before a transfer is effectuated, however, a
referendum shall first be conducted on the subject,
and the school system of the special school district
shall not be transferred to the county unless a
majority of the voters who cast votes in the
referendum vote in favor of the transfer.
The
referendum shall be held by the county election
commission when requested by the school board of the
special school district, and the expenses of the
election shall be paid from the funds of the special
school district.
Tenn. Code Ann. § 49-2-502(a) (2009).

5

On January 19, 2011, the Shelby County Election Commission
scheduled a referendum for City of Memphis voters that was held
on March 8, 2011.

(August 8 Order 7.)

The referendum posed the

question, “Shall the Administration of the Memphis City School
System, a Special School District, be Transferred to the Shelby
County

Board

of

Education?”

(Id.)

The

voters

answered

affirmatively.
On January 27, 2011, the Shelby County Board discussed the
combination of its schools with Memphis City Schools.

(Id.)

The Board adopted a resolution stating in part, “NOW THEREFORE,
BE

IT

RESOLVED

UNANIMOUSLY

THAT

OPPOSSES

THE
[sic]

SHELBY
THE

COUNTY

TRANSFER

BOARD
OF

THE

OF

EDUCATION

MEMPHIS

SCHOOL SYSTEM TO THE SHELBY COUNTY BOARD OF EDUCATION.”

CITY

(Id.)

On February 10, 2011, the Memphis City Council passed a
resolution approving the surrender of the Memphis City Schools‟
charter and dissolving the Memphis “special school district.”
(Id. 8.)

The resolution stated, in relevant part:

NOW, THEREFORE BE IT RESOLVED, by the Memphis City
Council that the Resolution of the Board of Education
of the Memphis City Schools to surrender its Charter
and dissolve the Memphis special school district is
hereby accepted and approved, effective immediately,
and a transition thereafter to be implemented in
accordance with the plan of dissolution hereinafter
set forth.
BE IT FURTHER RESOLVED, that the Comptroller of the
City is directed certify [sic] this Resolution and
plan of dissolution and the Mayor is directed to cause
to be filed with the Tennessee Secretary of State a
6

certified copy of this Resolution
dissolution on February 11, 2011.

and

plan

of

(August 8 Order 8-9.)
The Tennessee General Assembly adopted and, no later than
noon on February 11, 2011, the Governor of Tennessee signed and
dated Chapter 1 of the Tennessee Public Acts of 2011.

(Id. 9.)

The signed and dated bill was delivered to the Senate Engrossing
Clerk‟s office at approximately 1:00 p.m. on February 11, 2011,
and subsequently taken to the Tennessee Secretary of State‟s
office for entry.

(Id.)

Chapter 1 amended Tennessee Code Annotated § 49-2-502 to
require that:
Notwithstanding the provisions of subsection (a) or
any other law to the contrary, if the proposed
transfer of the administration of the schools in the
special school district to the county board of
education would result in an increase in student
enrollment within the county school system of one
hundred percent (100%) or more, and if a majority of
the voters who cast votes in the referendum vote in
favor of the transfer; then a comprehensive transition
plan shall be developed, and the transfer shall take
effect at the beginning of the third, full school year
immediately following certification of the election
results.
Tenn. Code Ann. § 49-2-502(b)(1).
Chapter 1 provides that the comprehensive transition plan
is to be developed by a transition planning commission:
(2) The comprehensive transition plan shall be
developed by a transition planning commission. The
transition plan shall consider and provide for each of
the matters set forth in § 49-2-1201(i) and § 49-27

1204. Prior to its implementation, the transition plan
shall be submitted to the department of education for
review
and
comments.
The
transition
planning
commission shall consist of twenty-one (21) members,
as follows:
(A) The county mayor, the chair of the county
board of education and the chair of the board of
education of the special school district shall
serve as ex officio members of the commission;
(B) The county mayor, the chair of the county
board of education and the chair of the board of
education of the special school district shall
each appoint five (5) competent citizens to serve
as members of the transition planning commission;
and
(C) The governor, the speaker of the senate and
the speaker of the house of representatives shall
jointly appoint three (3) competent citizens to
also
serve
as
members
of
the
transition
commission.
Tenn. Code Ann. § 49-2-502(b)(2).
Chapter 1 also eliminates restrictions on municipal school
districts and special school districts:
(3) From and after the effective date of the transfer
of the administration of the schools in the special
school district to the county board of education, the
restrictions imposed on the creation of municipal
school districts, in § 6-58-112(b), and special school
districts, in § 49-2-501(b)(3), shall no longer apply
in such county.
Tenn. Code Ann. § 49-2-502(b)(3).

Chapter 1 took effect on

becoming law and applies to any proposed § 49-2-502 transfer
pending on or after that date.
On

February

11,

2011,

the

Shelby

County

Board

filed

a

complaint seeking declaratory relief related to the merger of
8

the Memphis City and Shelby County Schools.

(ECF No. 1.)

After

holding a hearing on May 12 and 13, 2011, the Court concluded
that Sections 1 and 2 were constitutional.

The Court concluded

that the transfer of administration of the Memphis City Schools
to the Shelby County Board would take effect in August, 2013.
The Court withheld ruling on the constitutionality of Section 3,
reasoning that whether Section 3 “is unconstitutional is not
properly

before

the

Court.

Although

the

parties

have

not

briefed the issue, any harm resulting . . . would not occur
until an attempt was made to create a municipal school district
or special school district.”

(August 8 Order 61.)

On September 28, 2011, the Court entered a consent decree
providing

that

“effective

October

1,

2011,

the

Memphis

and

Shelby County school systems will be governed by the Shelby
County Board of Education.”

(ECF No. 262.)

The transition

period was scheduled to be completed by the beginning of the
2013-14 school year.
In

March

2012,

five

of

the

six

Municipalities

passed

ordinances requesting that the Shelby County Election Commission
hold referenda to authorize the formation of municipal school
districts.

(Third Am. Compl. ¶ 35.)

On March 20, 2012, the

Tennessee Attorney General issued an opinion that the proposed
referenda would violate Chapter 1 because “the establishment of
a municipal school system . . . can only be undertaken by a
9

municipality
complete.”

in

Shelby

County

once

the

transition

period

is

Tenn. Op. Att‟y Gen. No. 12-39, 2012 Tenn. AG LEXIS

41, at *9 (Mar. 5, 2012).

The Shelby County Election Commission

voted, on March 21, 2012, to deny the Municipalities‟ requests
to hold referenda.
The

(Third Am. Compl. ¶ 37.)

general

municipality

law

that

in

does

Tennessee

not

is

operate

a

that

“[a]n

school

existing

system

or

a

municipality incorporated after May 19, 1998, may not establish
a school system.”
2012,

the

relating

Tenn. Code Ann. § 6-58-112(b)(1).

Tennessee

to

General

municipal

Assembly

school

considered

districts

and

the

legislation
transfer

special school districts under Public Chapter 1.
Compl. ¶ 38.)

In early

of

(Third Am.

On May 9, 2012, the Governor of Tennessee signed

Public Chapter 905, and it became law.

(Id. ¶ 47.)

On May 15,

2012, the Governor signed Public Chapter 970, and it became law.
(Id. ¶ 41.)
Chapter

970

amended

§

6-58-112(b)

and

provides,

in

relevant part:
From and after the effective date of the transfer of
the administration of the schools in a special school
district to the county board of education pursuant to
§ 49-2-502(b), the restrictions imposed by § 6-58112(b)(1) on creation of municipal school districts no
longer apply within such county.
Chapter

905

establishes

criteria

schools:

10

for

creating

municipal

(a)

If a municipality is located within any county in
which a transition planning commission has been
created pursuant to § 49-2-502(b); and if the
municipality is authorized by its charter, as set
forth by statute or private act, to operate a
city school system; and if the proposed city
school system would possess a student population
of
sufficient
size
to
comply
with
state
requirements; then the governing body of the
municipality may request the county election
commission to conduct a referendum pursuant to §
49-2-106; however, if a special election is
requested, then the municipality shall pay the
costs of the election.

(b)

If a majority of the voters participating in the
referendum elect to raise local funds to support
the proposed city school system, then the
governing body of the municipality shall, by
ordinance, establish a city board of education in
compliance with § 49-2-201; however, there shall
be not less than three (3) nor more than eleven
(11) members, and the members may be elected in
the same manner, either from districts or at
large, or a combination of both, used to elect
members
of
the
governing
body
of
the
municipality. In order to comply with the § 49-2201 requirement for staggered four-year terms,
the governing body of the municipality shall
establish initial terms that vary in length;
however, all subsequently elected members, other
than members elected to fill a vacancy, shall be
elected to four-year terms. If a special election
is requested to elect members of the initial
board of education, then the municipality shall
pay the costs of the election. The members shall
take office on the first day of the first month
following certification of the election results.

(c)

The initial board of education shall plan and
manage the formation of the new city school
system
and,
subsequently,
shall
manage
and
operate the system when student instruction
commences. The board shall possess all powers and
duties granted to or required of boards of
education as set forth by § 49-2-203 or other
statute,
including,
but
not
limited
to,
11

employment of a full-time director of schools and
other personnel; and construction, acquisition,
lease,
or
modification
of
buildings
and
facilities.
(d)

Upon the commissioner's determination of the new
city
school
system's
general
readiness
to
commence student instruction, city schools shall
open between August 1 and the first Monday
following Labor Day; however, in no event shall
the city schools open prior to the effective date
of the transfer of the administration of the
schools in the special school district to the
county board of education pursuant to § 49-2502(b).

Tenn. Code. Ann. § 49-2-203(a).

A school system will possess a

student population of sufficient size under subdivision (a) if
it has a scholastic population within its boundaries that will
assure an enrollment of at least 1,500 pupils in its public
schools.

Tenn. Comp. R. & Regs. 0520-01-08.01.

Under the authority granted by Chapter 1, Chapter 905, and
Chapter

970,

the

Municipalities

held

referenda

on

August

2,

2012, to authorize the creation of municipal school districts.
(Third Am. Compl. ¶¶ 53-54.)

A majority of the voters in each

municipality approved the creation of the districts.

(Id. ¶

54.)
II.

Jurisdiction

The Court‟s August 8, 2011 Order sets out the basis for
subject-matter
Complaint.

jurisdiction

over

the

February

11,

2011

(See August 8 Order 27.) (“Because the Shelby County

Board of Education asserts a right to relief under 42 U.S.C. §
12

1983 for these alleged constitutional violations [], the Court
has

federal

question

jurisdiction

over

the

Board‟s

claims.”)

The Court exercised supplemental jurisdiction over the Shelby
County Board‟s state-law claims and the state-law counterclaims
brought by the Commissioners.

(Id. 28, 41.)

The Third Amended Complaint alleges jurisdiction under 28
U.S.C. § 1331 and 28 U.S.C. § 2201.

(Third Am. Compl. ¶ 15.)

It also alleges federal question jurisdiction under 42 U.S.C. §
1983.

(Id. ¶¶ 111-62.)

The Commissioners bring suit on behalf

of the school children of Shelby County, alleging a deprivation
of their Equal Protection rights under the Fourteenth Amendment.
(Id.

¶¶

65-81.)

The

Commissioners

seek

a

declaration

that

Section 3 of Public Chapter 1, Public Chapter 905, and Public
Chapter

970

unconstitutional
Constitutions.

(collectively,
under

the

(Id. at 37.)

the
United

“School
States

Acts”)
and

are

Tennessee

They also seek an injunction to

prevent the implementation of the School Acts.

(Id.)

Under the Declaratory Judgment Act, 28 U.S.C. § 2201, “[i]n
a case of actual controversy within its jurisdiction . . . any
court of the United States, upon the filing of an appropriate
pleading, may declare the rights and other legal relations of
any interested party seeking such declaration, whether or not
further relief is or could be sought.”

28 U.S.C. § 2201(a).

“The Declaratory Judgment Act does not create an independent
13

basis

for

federal

subject

matter

jurisdiction.”

Heydon

v.

MediaOne of Se. Mich., Inc., 327 F.3d 466, 470 (6th Cir. 2003)
(citations

omitted).

“The

Act

discretion to fashion a remedy.”

only

provides

courts

Id. (citation omitted).

with
“A

federal court accordingly „must have jurisdiction already under
some other federal statute‟ before a plaintiff can „invok[e] the
Act.‟”

Davis v. United States, 499 F.3d 590, 594 (6th Cir.

2007) (quoting Toledo v. Jackson, 485 F.3d 836, 839 (6th Cir.
2007)).
“A district court has subject matter jurisdiction over any
civil action „arising under the Constitution, laws, or treaties
of the United States.‟”

Id. (quoting 28 U.S.C. § 1331).

“A

claim arises under federal law when the plaintiff‟s statement of
his own cause of action shows that it is based upon federal laws
or the federal Constitution.”

Id. (quoting Cobb v. Contract

Transp., Inc., 452 F.3d 543, 548 (6th Cir. 2006)).

“A complaint

arises under federal law if it . . . states a federal cause of
action.”

Ohio ex rel. Skaggs v. Brunner, 629 F.3d 527, 530 (6th

Cir. 2010) (citing Mikulski v. Centerior Energy Corp., 501 F.3d
555, 560 (6th Cir. 2007) (en banc)).

“To determine whether a

claim arises under federal law, a court, under the well-pleadedcomplaint

rule,

complaint.”
Co.,

491

generally

looks

only

to

the

plaintiff‟s

Gentek Bldg. Prods., Inc v. The Sherwin-Williams

F.3d

320,

325

(6th

Cir.
14

2007)

(internal

citation

omitted); see also Williams v. Union Capital Mortg. Corp., No.
1:11CV2435, 2012 U.S. Dist. LEXIS 90492, at *5 (N.D. Ohio June
29, 2012).
Count Three of the Third Amended Complaint alleges that the
“Shelby County Municipal School Acts will result in a return to
more racially segregated schools in Shelby County in violation
of the Fourteenth Amendment Equal Protection Guarantees and 42
U.S.C. § 1983, et. seq.”

(Third Am. Compl. ¶ 112.)

Creating a

predominantly African-American school system allegedly “robs the
children of Shelby County of the right to be educated in a
racially

integrated

system

and

requires

the

Shelby

County

Commission to fund schools that are de facto segregated as the
schools

of

Shelby

County

[were]

before

Brown

v.

Board

of

Education [] forced integration of the Shelby County Schools.”
(Id. ¶ 126) (emphasis in original.)

Because the Commissioners

bring suit under § 1983 to enforce the Equal Protection rights
of Shelby County school children, the Court has federal question
jurisdiction.
&

Davidson

104970,

at

See, e.g., Spurlock v. Metro. Gov‟t of Nashville

Cnty.,
*3

No.

(M.D.

3:09-cv-00756,
Tenn.

July

27,

2012

U.S.

2012)

(a

Dist.
§

LEXIS

1983

suit

challenging a school board‟s re-zoning plan under the Fourteenth
Amendment raises a federal question).
The

Court

Commissioners‟

has

state-law

supplemental
claims
15

jurisdiction

because

they

over

“derive

the

from

a

common nucleus of operative fact” and “form part of the same
case or controversy” as the claims over which the Court has
original jurisdiction.

Harper v. AutoAlliance Int‟l, Inc., 392

F.3d 195, 209 (6th Cir. 2004) (internal citations omitted); see
also 28 U.S.C. § 1367(a).
III. Justiciability
“Article
courts

to

III

of

the

adjudicating

Constitution

actual

„cases‟

confines
and

the

federal

„controversies.‟”

Nat‟l Rifle Ass‟n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir.
1997) (quoting U.S. Const. art. III, § 2).

“In an attempt to

give meaning to Article III‟s „case or controversy‟ requirement,
the

courts

have

developed

a

series

of

principles

termed

„justiciability doctrines.‟”

Id.

“The Article III doctrine

that

have

„standing‟

requires

a

litigant

to

to

invoke

the

jurisdiction of a federal court is perhaps the most important.”
Id. (citing Allen v. Wright, 468 U.S. 737, 750 (1984)).

“A

second

is

doctrine

ripeness.”

that

„cluster[s]

about

Article

III‟

Id. at 280 (quoting Vander Jagt v. O‟Neill, 699 F.2d

1166, 1178-79 (D.C. Cir. 1982)).

“Third, the Supreme Court has

stressed that the alleged injury must be legally and judicially
cognizable
resolution.”

and

that

the

issues

must

be

fit

for

judicial

Id. (internal citation omitted).

When a plaintiff seeks a declaratory judgment, a court must
ask three questions: (1) whether the plaintiff has standing, (2)
16

“whether a particular challenge is brought at the proper time
and is ripe for pre-enforcement review” through a declaratory
judgment,
judicial

and

(3)

“whether

decision.”

the

Id.;

see

issue
also

currently

Mich.

is

State

fit

for

Chamber

of

Commerce v. Austin, 788 F.2d 1178, 1181-82 (6th Cir. 1986) (a
party

seeking

a

declaratory

judgment

must

have

standing

and

demonstrate that the controversy is ripe for decision before the
action is justiciable).

“Basically, the question in each case

is whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.”
Chamber

of

Commerce,

788

F.2d

at

1181

Mich. State

(quoting

Golden

v.

Zwickler, 394 U.S. 103, 108 (1969)).
A.

Standing

“Standing to bring suit must be determined at the time the
complaint

is

filed.”

Smith

v.

Jefferson

Cnty.

Bd.

of

Sch.

Comm‟rs, 641 F.3d 197, 206 (6th Cir. 2011) (en banc) (citation
omitted).

“A

plaintiff

must

meet

both

constitutional

prudential requirements to establish individual standing.”

and
Id.

(citation omitted).
1. Constitutional Requirements
The

Sixth

Circuit

has

stated

the

minimum

constitutional

standards for individual standing under Article III:
17

a plaintiff must show (1) it has suffered an “injury
in fact” that is (a) concrete and particularized and
(b)
actual
or
imminent,
not
conjectural
or
hypothetical; (2) the injury is fairly traceable to
the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180-81 (2000)); accord Fednav, Ltd.
v. Chester, 547 F.3d 607, 614 (6th Cir. 2008).
A

threshold

Commissioners,

as

constitutional
a

political

question

subdivision

is
of

whether
the

State

the
of

Tennessee, have standing to sue the Municipalities and the State
officers and departments under 42 U.S.C. § 1983.

Section 1983

provides a right of action against any person who deprives a
citizen

or

immunities

other
secured

person

of

by

Constitution”

the

“any

rights,

privileges,

while

acting

or

“under

color of any statute, ordinance, regulation, custom or usage” of
a

state

or

territory.

As

a

general

rule,

“political

subdivisions cannot sue the state of which they are part under
the

United

States

Constitution.”

Greater

Heights

Acad.

v.

Zelman, 522 F.3d 678, 680 (6th Cir. 2008).
A municipal corporation, “in its own right, receives no
protection from the Equal Protection or Due Process Clauses visà-vis

its

creating

state.”

South

Macomb

Disposal

Auth.

v.

Washington, 790 F.2d 500, 505 (6th Cir. 1986) (emphasis added)
(citations

omitted);

see

also
18

City

of

Moore,

Oklahoma

v.

Atchison, Topeka & Santa Fe Ry. Co., 699 F.2d 507, 511-512 (10th
Cir. 1983) (“[P]olitical subdivisions of a state lack standing
to challenge the validity of a statute on Fourteenth Amendment
grounds.”).

Because corporations, both public and private, “are

not „citizens‟ within the meaning of the Fourteenth Amendment,
they can never assert the denial of privileges and immunities
under section 1983.”
citations

South Macomb, 790 F.2d at 503-04 (internal

omitted).

subdivisions

“is

a

The
matter

relationship
of

state

Amendment protections do not apply.”

between

concern;
Id.

political

the

Fourteenth

Federal courts do not

“adjudicate what is essentially an internal dispute between two
local

government

entities,

one

of

which

is

asserting

unconstitutional conduct on the part of the other.”

Id. at 507

n.1 (Engel, J., concurring).
This Circuit has recognized that there “may be occasions in
which a political subdivision is not prevented, by virtue of its
status

as

a

subdivision

of

the

state,

from

constitutionality of state legislation.”

challenging

Id. at 504.

the

Although

a political subdivision is prohibited from asserting its own
rights

under

§

1983,

it

may

bring

suit

on

behalf

of

third

parties with whom the subdivision shares a “close relationship.”
See Akron Bd. of Educ. v. State Bd. of Educ., 490 F.2d 1285,
1289

(6th

Cir.

superintendent

1974)

had

(a

standing

board

of

education

based

on

“a

19

close

and

school

relationship

between the plaintiffs who seek to bring an action and the class
of

persons

whose

violated”).
behalf

The Commissioners

of

County.”

constitutional

“the

citizens

rights

seek

and

the

are

claimed

to

be

to bring this action on
schoolchildren

of

Shelby

(Third Am. Compl. ¶ 66.)

In Akron Bd. Of Educ., plaintiffs challenged the transfer
of

a

neighborhood

in

a

plurality

African-American

district to an adjacent all-white district.

school

Id. at 1287.

The

plaintiffs alleged that the transfer would compel them “to take
action

in

violation

of

constitutionally

and

statutorily

protected rights of children in the Akron City School District.”
Id.

The Sixth Circuit concluded that the Akron City School

District had suffered a distinct injury.

Id.

In addition to

their “close relationship” to Akron‟s students, plaintiffs had
standing to protect themselves from the threat of liability for
facilitating
districts.

the

implementation

of

unconstitutional

school

Id. at 1290.

The Commissioners are elected to represent Shelby County as
a whole.

The Tennessee General Assembly has vested them with

the authority to appropriate county education funds.
ex

rel.

Weaver

Facilitating

v.

and

Ayers,
funding

756

S.W.2d

allegedly

217,

225

See State

(Tenn.

unconstitutional

1988).
school

districts could “subject plaintiffs to being defendants in a
suit to restrain conduct which they appear to abhor and which
20

they avow to be unconstitutional.”

Akron Bd. of Educ., 490 F.2d

at 1290; see also Bd. of Educ. v. Allen, 392 U.S. 236, 241 n.5
(1968) (“Believing § 701 to be unconstitutional, they are in the
position of having to choose between violating their oath and
taking a step – refusal to comply with § 701 – that would likely
bring their expulsion from office and also a reduction in state
funds for their school districts.”).

The Sixth Circuit has

recognized that state and local authorities can be “held jointly
responsible . . . for segregated conditions in local schools,
where

the

state

officials

had

shown

„consistent

inaction

in

preventing increased segregation‟ and had consistently provided
funding and other assistance.”
Ferndale,

Mich.,

577

F.2d

United States v. School Dist. of
1339,

1347-48

(6th

Cir.

1978)

(emphasis added) (quoting Oliver v. Michigan State Bd. of Ed.,
508 F.2d 178, 186-87 (6th Cir. 1974)).
The

Commissioners

alleging

conduct

unconstitutional.

they
An

could

be

abhor

forced

and

order

that

to

defend

they

declaring

the

an

believe
School

action
to

be
Acts

unconstitutional and issuing an injunction would alleviate the
risk

of

action

against

the

Commissioners

and

the

threat

of

liability for facilitating and funding unconstitutional school
districts.

The Commissioners have suffered an injury-in-fact

that is concrete and particularized.

That injury is imminent

and not conjectural in that the Municipalities are proceeding to
21

establish their own school districts.

The injury is fairly

traceable to that action and would be redressed by a favorable
decision.
2.
The

Prudential Requirements

Commissioners

requirements.

also

satisfy

prudential

standing

As stated by the Sixth Circuit:

A plaintiff must also meet the following prudential
requirements for standing developed by the Supreme
Court. First, a “plaintiff generally must assert his
own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of
third parties.”
Second, a plaintiff must present a
claim that is “more than a generalized grievance.”
Finally, the complaint must “fall within „the zone of
interests to be protected or regulated by the statute
or constitutional guarantee in question.‟”
Smith, 641 F.3d at 206 (citations omitted).
The first prudential requirement ordinarily bars a party
from

asserting

standing

constitutional rights.

to

vindicate

a

third

party‟s

Id. at 208 (citing Barrows v. Jackson,

346 U.S. 249, 255 (1953)).

However, the “salutary rule against

third-party standing is not absolute.”
Tesmer, 543 U.S. 125, 129 (2004)).

Id. (citing Kowalski v.
“The rule „should not be

applied where its underlying justifications are absent.‟”

Id.

(citing Singleton v. Wulff, 428 U.S. 106, 114 (1976)).

The

Supreme Court has considered “two factual elements” in deciding
whether to apply the rule:
The first is the relationship of the litigant to the
person whose right he seeks to assert.
If the
22

enjoyment of the right is inextricably bound up with
the activity the litigant wishes to pursue, the court
at least can be sure that its construction of the
right is not unnecessary in the sense that the right‟s
enjoyment will be unaffected by the outcome of the
suit.
Furthermore, the relationship between the
litigant and the third party may be such that the
former is fully, or very nearly, as effective a
proponent of the right as the latter.
Id. (quoting Singleton, 428 U.S. at 114-15).

“Elsewhere, the

Court

that

has

described

this

test

as

requiring

the

party

asserting the right has a close relationship with the person who
possesses

the

right,

and

that

there

is

a

hindrance

possessor‟s ability to protect his own interests.”

to

the

Id. (quoting

Kowalski, 543 U.S. at 130) (internal quotation marks omitted);
see also Akron Bd. of Educ., 490 F.2d at 1289.
The Commissioners allege that they have “obligations, under
both

state

and

federal

law,

to

facilitate

the

free

public

education of school age children residing” in Shelby County.
(Third Am. Compl. ¶ 67.)
County

Municipal

School

“If allowed to stand, the Shelby
Acts

will

enable

demographically

homogenous Municipalities to segregate the children of Shelby
County into as many as seven different school districts.”
¶ 68.)

(Id.

The Commissioners allege that the operative effect of

the School Acts would diminish the school children of Shelby
County‟s opportunity to attend integrated schools.
71.)

(Id. ¶¶ 70-

The Commissioners allege that the Supreme Court of the

United States has “deemed this diminished ability to receive an
23

education in a racially integrated school to be „one of the most
serious injuries recognized in our legal system.‟”

(Id. ¶ 71)

(quoting Allen, 468 U.S. at 756.)
The Commissioners were originally a defendant in this case.
The Shelby County Board was a plaintiff.

In its August 8 Order,

the Court concluded that the Shelby County

Board, which has

elected not to pursue a claim in this case, was authorized to
assert the rights of school children in its system because it
had “obligations under both state and federal law to provide a
free public education to the school age children who currently
reside in the boundaries of the City of Memphis. . . . Those
obligations give it a close relationship with the interests of
Memphis schoolchildren who possess the rights the Shelby County
Board [] seeks to assert.”

(August 8 Order 52.)

There are differences between a local school board and a
county legislative body under Tennessee law; the “„two entities
have separate, origins, functions, and management.‟”

See Hill

v. McNairy Cnty., No. 03-1219-T, 2004 U.S. Dist. LEXIS 970, at
*4-5 (W.D. Tenn. Jan. 15, 2004) (quoting Rollins v. Wilson Cnty.
Gov‟t, 154 F.3d 626, 630 (6th Cir. 1998) (“Under Tennessee law,
the school systems are separate from the county governments.”).
“The board of commissioners has no supervisory authority over
the board of education,” but the Tennessee General Assembly has
“manifestly vested the authority to appropriate funds for county
24

purposes

(including

education)”

in

the

Commissioners

alone.

Ayers, 756 S.W.2d at 225.
Although local school systems and county governments “have
separate origins and functions and the management of each is
autonomous of the other, interaction between the two entities is
a necessity.”

Putnam Cnty. Educ. Ass‟n v. Putnam Cnty. Comm‟n.,

No. M2003-03031-COA-R3-CV, 2005 Tenn. App. LEXIS 450, at *17
(Tenn. Ct. App. Aug. 1, 2005).

“This is because the county

controls the purse strings, and it is not compelled to provide
the

funding

supervision

requested
and

by

control

the

of

the

schools
county,

system,
the

while

employment

the
of

teachers, the fixing of salaries, and erecting of buildings is
vested

in

the

county

(citation omitted).

board

of

education.”

Id.

at

*17-18

“[T]ension – if not litigation – occurs

when the county refuses to adopt the budget proposed by the
school system.”

Id. at *18.

The closeness between the Commissioners and Shelby County
school children is “a matter of degree rather than of legal
principle.”
the

See Akron Bd. of Educ., 490 F.2d at 1289.

responsibilities

commissions

are

of

separate,

boards

of

Tennessee

education
law

Although

and

acknowledges

county
that

educating children is a collaboration between administrative and
financial bodies.

See Putnam Cnty. Comm‟n., 2005 Tenn. App.

LEXIS 450, at *17 (“[I]nteraction between the two entities is a
25

necessity.”).

The

Commissioners‟

funding

obligations

under

Tennessee law make them an “immediate object” of the creation of
municipal school districts.
1290.
the

See Akron Bd. of Educ., 490 F.2d at

Given that the Sixth Circuit has found that an injury to

purse

is

sufficient

to

establish

a

“close

relationship”

between a school board and its students, the controller of that
purse also has standing to protect the rights of students.

See

id., at 1289 (“But in our instant case, not only are children
transferred,

but

tax

dollars

otherwise

Board are transferred too.”).

due

the

Akron

School

“The Supreme Court „has found an

adequate “relation” . . . when nothing more than a buyer-seller
connection was at stake.‟”
Kowalski,

543

U.S.

at

Smith, 641 F.3d at 208 (quoting
139)

(Ginsburg,

J.,

dissenting)

(collecting cases).
The

relationship

between

the

Commissioners

and

Shelby

County school children is “such that the former is fully, or
very

nearly,

latter.”

Id.

separate

from

as

effective

proponent

of

the

right

as

the

Under the School Acts, the Municipalities may
the

school districts.
school

a

districts

Compl. ¶ 122-23.)

Shelby

County

Schools

and

form

municipal

The Commissioners allege that the resulting
would

be

racially

homogeneous.

(Third

Am.

The Commissioners bring this action to ensure

that students “receive an adequate education in an integrated
school system, as mandated by the Fourteenth Amendment of the
26

United States Constitution, as interpreted by the United States
Supreme Court in Brown v. Bd. of Educ., 347 U.S. 483 (1954).”
(Id. ¶ 65.)

The Commissioners are an effective proponent of the

rights of Shelby County school children.
The school children of Shelby County face hindrances in
pursuing their own claims.

The Municipalities have voted to

approve municipal schools that would open in August, 2013.

The

“minimal present impact” of the School Acts “would be much less
likely to come to the attention of [] parents or arouse their
concern” than it would the Commissioners‟.
Educ., 490 F.2d at 1295.

See Akron Bd. of

If jurisdiction is refused “in a

precedent-setting case because the potential litigants, alert to
the possible constitutional abuse, are denied standing, quite a
bit of the unconstitutional camel may be in the tent before the
tent‟s less alert occupants are awakened.”
County

school

litigation
Acts.

children

and

also

uncertainty

face

over

the

the

Id. at 1290.
substantial

operation

of

Shelby

costs
the

of

School

Burdensome litigation costs have been cited by the Sixth

Circuit as a “systemic practical challenge[]” to filing suit.
See Smith, 641 F.3d at 209 (characterizing Powers v. Ohio, 499
U.S. 400, 414 (1991)).
Given

the

costs

and

uncertainties,

Shelby

County

school

children are not in a position to address the operation of the
School Acts.

The strong probability is that the children would
27

not be heard or, if heard, could not command the resources to
prosecute their cause effectively.

They

would be unable to

vindicate their federal constitutional rights in federal court.
The Commissioners also present claims that are “more than a
generalized grievance.”

See id. at 206.

Their claims are based

on the alleged racial effects of the School Acts.

The Sixth

Circuit has concluded that state subdivisions may bring suit to
vindicate the Equal Protection rights of school children.
Akron Bd. of Educ., 490 F.2d at 1290.

See

The Commissioners satisfy

the second prudential requirement of standing.
The
interests

Commissioners‟
to

be

claims

protected

or

“fall

within

regulated

constitutional guarantee in question.‟”

by

„the
the

zone

of

statute

or

Smith, 641 F.3d at 206

(quoting Valley Forge Christian Coll. v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 475 (1982)).
The Commissioners satisfy the third prudential requirement of
standing.
3.

Standing of the Memphis City Plaintiffs

“[T]he presence of one party that has standing to bring a
claim

suffices

to

make

identical

claims

parties to the same lawsuit justiciable.”

brought[]

by

other

See 1064 Old River

Rd., Inc. v. City of Cleveland, 137 F. App‟x 760, 765 (6th Cir.
2005); see also Clinton v. City of New York, 524 U.S. 417, 431
(1998) (“Because both the City of New York and the health care
28

appellees

have

standing,

appellee

unions

also

we

have

need

not

standing

consider

to

whether

sue.”).

The

the

claims

brought by the Memphis City Plaintiffs are identical to those
brought by the Commissioners.

The Commissioners have standing.

The Memphis City Plaintiffs have standing.
B.
“The

Ripeness

ripeness

themselves

in

adjudication.”

doctrine

abstract

prevents

courts

disagreements‟

from

„entangling

through

premature

Miller v. City of Cincinnati, 622 F.3d 524, 532

(6th Cir. 2010) (quoting Grace Cmty. Church v. Lenox Twp., 544
F.3d

609,

615

(6th

Cir.

2008)).

“Ripeness

separates

those

matters that are premature because the injury is speculative and
may never occur from those that are appropriate for the court‟s
review.”

Magaw, 132 F.3d at 280.

To determine whether a case is ripe, courts consider three
factors:
(1) the likelihood that the harm alleged by the
plaintiffs will ever come to pass; (2) whether the
factual record is sufficiently developed to produce a
fair adjudication of the merits of the parties‟
respective claims; and (3) the hardship to the parties
if judicial relief is denied at this stage in the
proceedings.
Miller, 622 F.3d at 532 (quoting Grace Cmty. Church, 544 F.3d at
615).

The

Sixth

Circuit

has

also

described

the

test

for

ripeness as “ask[ing] two basic questions: (1) is the claim
„fit[] . . . for judicial decision‟ in the sense that it arises
29

in a concrete factual context and concerns a dispute that is
likely to come to pass? and (2) what is „the hardship to the
parties of withholding court consideration‟?”

Warshak v. United

States, 532 F.3d 521, 525 (6th Cir. 2008) (en banc) (quoting
Abbott

Laboratories

v.

Gardner,

387

U.S.

136,

149

(1967));

accord Stolt-Nielsen S.A. v. AnimalFeeds Int‟l Corp., 130 S. Ct.
1758,

1767

n.2

(2010)

(“In

evaluating

a

claim

to

determine

whether it is ripe for judicial review, we consider both „the
fitness of the issues for judicial decision‟ and „the hardship
of

withholding

Hospitality

court

Ass‟n

v.

consideration.‟”
Dep‟t

of

(quoting

Interior,

538

Nat‟l

U.S.

Park

803,

808

(2003))).
“„Ripeness is more than a mere procedural question; it is
determinative of jurisdiction.‟”

River City Capital, L.P. v.

Bd. of Cnty. Comm‟rs, 491 F.3d 301, 309 (6th Cir. 2007) (quoting
Bigelow v. Mich. Dep‟t of Natural Res., 970 F.2d 154, 157 (6th
Cir.

1992)).

subject

“„If

matter

dismissed.‟”
deficiency
parties.‟”

a

claim

is

jurisdiction

unripe,

and

the

federal

courts

complaint

Id. (quoting Bigelow, 970 F.2d at 157).

may

be

raised

sua

sponte

if

not

raised

lack

must

be

“„This
by

the

Bigelow, 970 F.2d at 157 (quoting S. Pac. Transp.

Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990)).
In

the

Court‟s

August

8

Order,

the

Court

stated

that

whether Section 3 of Chapter 1 of the Public Acts of 2011, which
30

provides for new school districts, “is constitutional is not
properly

before

the

Court.

[A]ny

harm

resulting

from

the

addition of this sub-section would not occur until an attempt
was made to create a municipal school district or special school
district.

Nothing in the record suggests that such an attempt

has been made or will be made in the future.
on

contingent

future

events.”

(August

8

Any harm depends
Order

61.)

The

contingencies of August 8, 2011, have become reality.
Chapter 905 provides the procedural mechanism for creating
municipal school districts.

Chapter 970 suspends Tennessee‟s

general prohibition on municipal school districts in counties in
which a transition of administration has become effective.
Municipalities

have

begun

the

creation

districts under Chapters 905 and 970.

of

municipal

The

school

They have conducted local

referenda under Chapter 905, and the voters have approved the
creation of municipal school districts.

The factual record has

been fully developed by the parties, and the Court has conducted
a trial.

Withholding a determination until a later date would

cause uncertainty about the validity of municipal school systems
that would create a hardship to the Commissioners and to the
Municipalities.
C.
The

Fitness

claims

requirement.

presented

in

this

case

See Magaw, 132 F.3d at 290.
31

satisfy

the

fitness

The alleged injuries

are legally and judicially cognizable.

The Commissioners and

the Memphis City Plaintiffs have alleged invasions of legally
protected interests that are traditionally thought to be capable
of resolution through the judicial process and are currently fit
for

judicial

review.

See

id.

The

factual

record

is

sufficiently developed to produce a fair adjudication of the
merits of the claims presented.

Brown & Williamson Tobacco

Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983); see also Magaw, 132
F.3d at 290.
concern

a

The claims arise in a concrete factual context and
dispute

that

has

already

arisen.

The

fitness

requirement is satisfied.
IV.

Facts

Before Memphis City Schools surrendered its charter, it was
one of fifteen special school districts in Tennessee.
Dr.

Swanson

2l;

see

also

Tr.

Exs.

3,

23.)

Those

(Rep. of
fifteen

districts operated in eight counties: Shelby, Gibson, Carroll,
Scott,

Henry,

Marion,

Wilson,

and

Williamson

Counties.

All

other Tennessee counties were served by a combination of county
and municipal school districts.

(Tr. Exs. 3, 23.)

At trial on September 4 and 5, 2012, the parties offered
proof about the applicability of

the School Acts to Gibson,

Carroll, Marion, Wilson, Williamson, Henry, and Scott Counties.
The proof addressed three principal issues: 1) whether Gibson
and

Carroll

Counties

fall

under
32

the

School

Acts;

2)

the

possibility of any municipality in any of the seven counties
other than Shelby falling under Chapter 905 and Chapter 970; and
3) the intent of the Tennessee General Assembly in passing the
School Acts.
The Commissioners and the Memphis City Plaintiffs offered
the expert testimony of Dr. David Swanson.

The Court accepted

Dr. Swanson as an expert qualified to render opinions in the
field of “population forecasting.”

(Trial Tr. 115:5-7.)

A

“forecast” is defined “as the projection that is most likely to
provide

an

accurate

prediction

As

it

enrollment.

such,

of

the

future

represents

a

population

specific

or

viewpoint

regarding the validity of the underlying data and assumptions.”
(Rep. of Dr. Swanson 3.)
Dr. Swanson performed two tasks.
school-age
Wilson,

population

Marion,

Henry,

115:13-15; 129:8-11.)

(ages

5-18)

and

First, he forecast the

and

Williamson

enrollment
Counties.

of

Scott,

(Trial

Tr.

In addressing those five counties, he

determined whether the school-age population and/or enrollment
in each special schools district would increase in the future to
a level that would equal or exceed the forecasted enrollment of
its county school system.
Dr.

Swanson

forecast

(Id. 115:24-25; 116:1-9.)
the

school-age

populations

enrollments in eight municipalities in Carroll County.
115:16-17.)

Second,
and/or
(Id.

Dr. Swanson did not perform population forecasts
33

for Gibson County because “it has no county school system and,
as such, appears not to meet the requirements of Public Chapter
1.”

(Rep. of Dr. Swanson 1.)
The Municipalities offered Dr. Michael Hicks as an expert

in population forecasting.
voir

dire,

the

Court

(Trial Tr. 209:25-210:1.)

rejected

Dr.

Hicks

as

an

After

expert

in

population forecasting and recognized him as an expert in the
field of “regional economics.”

(Id. 217:2-11; 230:13-16.)

Gibson County was the focus of the parties‟ proof about the
applicability of Chapter 905.
Tennessee

and

is

part

Statistical Area.

of

Gibson County is located in West
the

Jackson-Humboldt

Metropolitan

Its population was 49,683 as of the 2010

decennial

census.

Bradford,

Dyer,

Gibson

Gibson,

County

Kenton,

Yorkville, Humboldt, and Milan.

has

ten

Medina,

municipalities:

Rutherford,

Trenton,

(Third Am. Compl. ¶ 90.)

The

two largest municipalities are Humboldt, which has a population
of 8,452, and Milan, which has a population of 7,851.

(Tr. Ex.

48.)
Gibson County has not operated a county school system since
1981,
School

when

a

Private

District

Act

(“Gibson

created
County

the

Gibson

SSD”).

County

See

Special

Humboldt

v.

McKnight, No. M2002-02639-COA-R3-CV, 2005 Tenn. App. LEXIS 540,
at *2 (Tenn. Ct. App. Aug. 25, 2005).
currently

served

by

one

municipal
34

All K-12 students are

school

district

and

four

special school districts.

Id. at *5; see also Third Am. Compl.

¶ 91.

The four special school districts are: Bradford Special

School

District

(“Bradford

SSD”),

which

serves

543

students;

Milan Special School District (“Milan SSD”), which serves 2,087
students; Trenton Special School District (“Trenton SSD”), which
serves 1,337 students and Gibson County SSD, which serves 3,586
students.

(Tr. Ex. 4.)

Gibson County is the only county in

Tennessee in which all students are served by a combination of
special school districts and a municipal school district.

(Tr.

Exs. 3, 23.)
Gibson
system,

County

which

is

exempt

Tennessee

from

Code

operating

Annotated

§

a

county

school

49-2-501(b)(2)(C)

generally requires.

See McKnight, 2005 Tenn. App. LEXIS 540, at

*2,

Dep.

*6;

(see

also

Of

Mary

Sneed

County does not operate a school system).

Reel

8:17-23)

(Gibson

When the Private Act

created the Gibson County SSD, “Gibson County, in effect, went
out of the education business since no students were left to
serve.”

McKnight, 2005 Tenn. App. LEXIS 540, at *7.

Gibson

County‟s exemption lasts so long as all students in the county
are served by a municipal or special school district.
*2.

Id. at

Since 1981, Gibson County has not “operated or administered

a school system,” but the Gibson County Board of Education has
appointed members.

Id. at *7.

The Gibson County Board of

Education has no “operational components of education,” receives
35

no

funding

for

education,

and

the

county

has

changed

its

property tax rate to reflect the elimination of funding for
education.

Id.

superintendent.

Gibson

County

does

not

have

a

school

(Dep. Of Mary Sneed Reel 8:24-9:1.)

Dr. Swanson did not examine Gibson County in his report
because it has “no county school system and, as such, appears
not to meet the requirements of Public Chapter 1.”
Swanson 1.)

(Rep. of Dr.

Dr. Hicks forecast that Gibson County, as a part of

the Jackson-Humboldt area, would likely experience population
growth “shifting from more urban to more rural or exurban areas,
simply because of infill issues in urban areas.”
267:11-14.)

Dr.

Hicks‟

model,

which

accounts

(Trial Tr.
for

economic

conditions, forecasts Gibson County‟s 2030 population to reflect
a growth rate of 13.7% from 2010.

(Id. 274:15-18.)

did

growth

not

forecast

the

population

in

Dr. Hicks

Gibson

County‟s

municipalities.
Dr.

Hicks

and

Dr.

Swanson

also

testified

about

Chapter

905‟s applicability to Carroll County, which is located in West
Tennessee and has a population of 28,522.
33.)

(Rep. of Dr. Swanson

There are eight municipalities in Carroll County: Atwood,

Bruceton,

Clarksburg,

McLemoresville,
municipality,

and
has

a

Hollow

Rock,

Trezevant.
population

36

Huntingdon,
McKenzie,

of

5,310.

the
(Tr.

McKenzie,
largest
Ex.

51.)

Huntingdon has a population of 3,985.

(Tr. Ex. 52.)

No other

municipality has a population of more than 1,500.
Tennessee Code Annotated § 49-2-501(b)(1)(B) provides that
there can be no more than six school districts, regardless of
form, in any Tennessee County with a population greater than
25,000.

There are currently six school districts in Carroll

County.

Carroll County Schools serves two students, all of whom

are in remedial programs.
Ex. 4.)

(Rep. of Dr. Swanson 2; see also Tr.

The remaining students in Carroll County are served by

five special school districts.
districts

are:

South

Carroll

(Rep. of Dr. Swanson 2.)
Special

School

District

Those
(“South

Carroll SSD”), which serves 359 students; West Carroll Special
School District (“West Carroll SSD”), which serves 985 students;
McKenzie Special School District (“McKenzie SSD”), which serves
1,375

students;

(“Hollow

Hollow

Rock-Bruceton

Huntingdon

Special

Rock-Bruceton
SSD”),

School

serves 1,193 students.

which

District

Special
serves

School

653

District

students;

(“Huntingdon

SSD”),

and

which

(Tr. Ex. 4.)

Dr. Swanson forecast age-group populations for the eight
municipalities in Carroll County.
purpose

was

to

determine

(Trial Tr. 128:18-20.)

whether

any

of

the

His

school-age

populations in these municipalities would meet or exceed the
1,500-pupil requirement in Chapter 905.

(Id. 128:23-25.)

He

forecast the 2030 population in the 4-18 age group to be 134 in
37

Atwood, 249 in Bruceton, 122 in Clarksburg, 59 in Hollow Rock,
639 in Huntingdon, 1,177 in McKenzie, 185 in McLemoresville, and
142 in Trezevant.
Tr.

131:1-12.)

(See Rep. of Dr. Swanson 41; see also Trial
Dr.

Swanson

opined

that

no

municipality

in

Carroll County could have a student-age population of 1,500.
(Trial Tr. 131:7-11.)
Dr.

Hicks

did

not

forecast

Carroll County‟s municipalities.

the

age-group

population

He projected the population

growth of the total population under age 19 to be 9.4%.
Rep. of Dr. Michael Hicks 7.)

in

(See

He projected Carroll County‟s

total population growth by 2030 to be 14.6%.

(Id. 6.)

The five remaining special school districts in Tennessee
are: the Paris Special School District (“Paris SSD”) in Henry
County;
SSD”)

Richard
in

(“Franklin

City

Marion
SSD”)

Special

County;
in

School

Franklin

Williamson

District
Special

County;

(“Richard
School

Oneida

City

District

Special

School

District (“Oneida SSD”) in Scott County; and Lebanon Special
School District (“Lebanon SSD”) in Wilson County.
Swanson 2.)

(Rep. of Dr.

Dr. Swanson opined that it is “so unlikely as to be

virtually impossible” that any of the special school districts
would fall under Chapter 1.
Paris
County

SSD

serves

Schools

serves

(Trial Tr. 135:15-24.)

1,630
3,070

students.
students.

(Tr.

Ex.

(Id.)

4.)

Henry

Dr.

Swanson

forecast the Henry County school-age population would be 3,320
38

in 2030.

(Rep. of Dr. Swanson 27.)

He forecast the Paris SSD

school-age population would be 1,513.

(Id.)

He opined that

Paris SSD would have to grow by 88.5% to equal the size of the
Henry

County

Schools.

(Id.

19.)

He

testified

that

the

possibility of Paris SSD growing in school-age enrollment to
equal or exceed the school-age population and/or enrollment of
the Henry County Schools to be so unlikely as to be virtually
impossible.

(Trial Tr. 120:11-24; 121:1-23.)

Richard City SSD serves 322 students.
County

Schools

serves

4,185

(Tr. Ex. 4.)

students.

(Id.)

Dr.

Marion
Swanson

forecast the school-age population of Richard City SSD to fall
to 172 by 2030.

(Rep. of Dr. Swanson 28.)

He forecast the

population of Marion County Schools to be 4,331.

(Id.)

In

other words, “Richard City School District had about 6 percent,
almost

7

percent

of

the

enrollment

that

the

Henry

School

District had; and by the time you get to 2030, it‟s under 4
percent.”

(Trial Tr. 122:10-13.)

Dr. Swanson described the

possibility that Richard City SSD would grow to equal or exceed
the population of Marion County Schools to be “so unlikely as to
be virtually impossible.”

(Id. 122:17.)

Oneida SSD serves 1,193 students.
County

Schools

forecast

the

serves

2,850

population

of

(Rep. of Dr. Swanson 29.)

(Tr. Ex. 4.)

students.
Oneida

SSD

(Id.)
to

be

Dr.
1,097

Scott
Swanson

in

2030.

He forecast the population of Scott
39

County Schools to be 2,697.

(Id.)

Dr. Swanson opined that the

population of Oneida SSD is “shrinking slightly” relative to
Scott County.

(Trial Tr. 123:10-11.)

Dr. Swanson testified

that, “by the time you get to 2030, it‟s only going to be at
about 41 percent, the Oneida Special School District, of the
enrollment found in [Scott] County School District.”
123:3-5.)

(Trial Tr.

He opined that the possibility that Oneida SSD would

grow to equal or exceed the population of Scott County Schools
to

be

“so

unlikely

as

to

be

virtually

impossible.”

(Id.

123:15.)
Franklin SSD serves 3,703 students.
SSD serves only grades K-8.
County

Schools

serves

(Tr. Ex. 4.)

(Trial Tr. 123:23-25.)

30,988

K-12

students.

Franklin
Williamson

(Tr.

Ex.

4.)

Currently, Franklin SSD has approximately twenty percent of the
enrollment in the Williamson County Schools.

(Id. 124:7-8.)

Dr. Swanson testified that, by 2030, Franklin SSD‟s enrollment
will decrease to approximately ten percent of Williamson County
Schools‟ enrollment.
the

forecasted

(Id. 124:8-9.)

decrease

in

ratio

Dr. Swanson theorized that
between

Franklin

SSD

and

Williamson County Schools is attributable to “Williamson County
outside of Franklin [] growing at a faster rate than Franklin.”
(Id. 125:9-11.)
the

student

Dr. Swanson testified that the possibility of

enrollment

of

Franklin

40

SSD

growing

to

equal

or

exceed Williamson County Schools by 2030 to be “so unlikely as
to be virtually impossible.”

(Id. 126:2-7.)

Lebanon SSD serves 3,237 students.

County

serves

15,139

Lebanon

(Trial Tr. 125:17-19.)

SSD serves only grades K-8.

(Tr. Ex. 4.)

Wilson

students.

(Tr.

Ex.

4.)

Dr.

Swanson

forecast the enrollment of Wilson County Schools to increase to
18,596 students by 2030.

(Rep. of Dr. Swanson 31.)

Dr. Swanson

forecast the enrollment of Lebanon SSD to be 3,256 by 2030.

Dr.

Swanson opined that the possibility of Lebanon SSD growing to
equal or exceed the population of Wilson County Schools to be
“so unlikely as to be virtually impossible.”

(Trial Tr. 126:1-

3.)
Dr. Hicks did not forecast the expected populations for
special school districts and county school districts in Marion,
Henry,

Scott,

Wilson,

or

Williamson

Counties.

He

projected

population annual growth for age groups 19 and under from 2010
to 2030.

(Rep. of Dr. Michael Hicks 6-7.)

V. Law
The first issue in this case is the constitutionality of
Public Chapter 905 under Article XI, Section 9 (“Section 9”) of
the

Tennessee

Constitution.

Any

analysis

begins

“with

the

presumption . . . that the acts of the General Assembly are
constitutional.”

Vogel v. Wells Fargo Guard Servs., 937 S.W.2d

856, 858 (Tenn. 1996) (citations omitted).
41

Courts “„presume

that every word in a statute has meaning and purpose; each word
should be given full effect if the obvious intention of the
General Assembly is not violated by doing so.‟”

State v. White,

362 S.W.3d 559, 566 (Tenn. 2012) (quoting Lawrence Cnty. Educ.
Ass‟n v. Lawrence Cnty. Bd. of Educ., 244 S.W.3d 302, 309 (Tenn.
2007)).

Courts have a “duty to adopt a construction which will

sustain

a

statute

and

avoid

constitutional

conflict

if

any

reasonable construction exists that satisfies the requirements
of the Constitution.”

Davis-Kidd Booksellers v. McWherter, 866

S.W.2d 520, 529 (Tenn. 1993) (citations omitted).
words,

courts

must

“interpret

constitutional

In other

provisions

in

a

principled way that attributes plain and ordinary meaning to
their words and that takes into account the history, structure,
and underlying values of the entire document.”

Estate of Bell

v. Shelby Cnty. Health Care Corp., 318 S.W.3d 823, 835 (Tenn.
2010).

When addressing challenged statutes, if a court faces a

“choice between two constructions, one of which will sustain the
validity

of

Constitution,

the
and

statute

and

another

avoid
which

a

conflict

renders

with

the

unconstitutional,” the court must choose the former.

statute
Davis-

Kidd, 866 S.W.2d at 529-530.
Article XI, Section 9 provides, in relevant part:
[A]ny act of the General Assembly private or local in
form or effect applicable to a particular county or
municipality either in its governmental or its
42

the

proprietary capacity shall be void and of no effect
unless the act by its terms either requires the
approval by a two-thirds vote of the local legislative
body of the municipality or county, or requires
approval in an election by a majority of those voting
in said election in the municipality or county
affected.
Adopted in 1953, Article XI, Section 9 reflects “[c]oncern about
the General Assembly‟s abuse of [] power.”

Elijah Swiney, John

Forrest Dillon Goes to School: Dillon‟s Rule in Tennessee Ten
Years After Southern Constructors, 79 Tenn. L. Rev. 103, 118
(2011).

“Prior to the 1950s, municipalities in Tennessee were

creatures of private acts.
expanded,

or

weakened

They could be created, abolished,

freely

by

statute.”

Id.

Section

9

addresses the operation of private acts by vesting “control of
local affairs in local governments, or in the people, to the
maximum permissible extent.”

Farris v. Blanton, 528 S.W.2d 549,

552 (Tenn. 1975); see also Civil Service Merit Bd. v. Burson,
816 S.W.2d 725, 728 (Tenn. 1991).
„private

and

local

in

form

or

“[A]ny and all legislation
effect‟

affecting

Tennessee

counties or municipalities, in any capacity, is absolutely and
utterly void unless the Act requires approval of the appropriate
governing
S.W.2d

at

body
551

or

of

the

(emphasis

affected

added).

citizenry.”
The

drafters

Farris,
of

528

Section

9

intended the amendment to “strengthen local self-government.”
Burson, 816 S.W.2d at 728.

43

The

Section

9

question

in

Acts,

Farris, 528 S.W.2d at 551; see also Burson, 816

effect

and

“The test is not the outward, visible or facial

nor

the

designation,

employed by the Legislature.
purpose

local

School

application.”

the

[are]

the

of

indices,

form,

whether

“irrespective

S.W.2d at 729.

[their]

is

of

[Section

description

or

nomenclature

Such a criterion would emasculate

9].”

Farris,

528

S.W.2d

at

551.

Constitutional inquiries address “„whether the legislation [in
question]

was

Tennessee,

designed

for

if

to

[a

apply

statute]

to
is

any

other

potentially

county

in

applicable

throughout the state it is not local in effect even though at
the time of its passage it might have applied [to one county].‟”
Burson,

816

S.W.2d

at

729

Farris, 528 S.W.2d at 552).

(alteration

in

original)

(quoting

Potential applicability is viewed

through a lens colored by “reasonable, rational and pragmatic
rules [of construction] as opposed to theoretical, illusory, or
merely possible considerations.”
Potential
statute,

not

applicability
its

form.

Farris, 528 S.W.2d at 552.

turns
Id.

at

on
554.

the

substance
The

of

operation

a
or

application of a statute‟s classifications or conditions speaks
to its potential applicability.

See Doyle v. Metropolitan Gov‟t

of Nashville and Davidson Cnty., 471 S.W.2d 371, 373

(Tenn.

1971) (finding that a statute‟s condition that “any city having
a

metropolitan

form

of

government”
44

was

general

because

it

“applie[d] to all those who desire to come within its purview.”
Id. at 373; see also Bozeman v. Barker, 571 S.W.2d 279, 280-81
(Tenn. 1978) (upholding a statute that fixed a minimum salary
for court officers in counties with more than 250,000 but less
than

600,000

people

because

it

“presently

applies

to

two

populous counties” and could “become applicable to many other
counties depending on what population growth is reflected by any
subsequent

Federal

(upholding

a

Census”);

statute

with

Burson,
a

816

S.W.2d

population

at

729-30

threshold

because

population growth could bring other counties under the statute
in the future).
Section

9

also

requires

courts

to

consider

whether

legislation “was designed” to apply to any other county.

See

Farris,

“on

528

purpose,

S.W.2d

at

purposefully,

552.

To

“design”

intentionally.”

Dictionary 519 (2d ed. 2001).

means
IV

to

act

Oxford

English

The legislative intent may be

considered by courts, but there must be doubts about a statute‟s
application or ambiguities in the text.

See Farris, 528 S.W.2d

at 555-56; see also Barker, 571 S.W.2d at 281.
To

the

“[r]elying
cautiously.”

on

extent

legislative

legislative

history

history

is

a

may
step

be
to

considered,
be

taken

BellSouth Telcoms. v. Greer, 972 S.W.2d 663, 673

(Tenn. Ct. App. 1997) (citing Piper v. Chris-Craft Indus., Inc.,
430 U.S. 1, 26 (1977)).

Legislative history has a tendency to
45

include

“self-serving

statements

favorable

to

particular

interest groups prepared and included . . . to influence the
courts‟

interpretation

(citations omitted).

of

the

statute.”

Id.

at

673-74

To the extent courts address legislative

history, they must review the complete history.

See Galloway v.

Liberty Mut. Ins. Co., 137 S.W.3d 568, 570 (Tenn. 2004) (“If the
language of the statute is ambiguous, the court must examine the
entire statutory scheme and the legislative history to ascertain
and give effect to the legislative intent.”) (citation omitted).
“Courts have no authority to adopt interpretations of statutes
gleaned

solely

from

the

legislative

statutory reference points.”

history

that

have

no

Greer, 972 S.W.2d at 674 (citing

Shannon v. United States, 512 U.S. 573, 583 (1994)).
Chapter 905 provides, in relevant part:
If a municipality is located within any county in
which a transition planning commission has been
created pursuant to § 49-2-502(b); and if the
municipality is authorized by its charter, as set
forth by statute or private act, to operate a city
school system; and if the proposed city school system
would possess a student population of sufficient size
to comply with state requirements; then the governing
body of the municipality may request the county
election commission to conduct a referendum pursuant
to § 49-2-106; however, if a special election is
requested, then the municipality shall pay the costs
of the election.
The Commissioners argue that Chapter 905 is restricted to eight
counties in Tennessee and can only realistically apply in one:
Shelby

County.

The

Commissioners
46

contend

that

Chapter

905

applies only if a municipality in one of those eight counties
has a sufficient population under Tennessee law to support a
municipal school system.
application

is

limited

They also argue that Chapter 905‟s
to

counties

in

which

a

transition

planning commission has been established under Tennessee Code
Annotated

§

49-2-502(b)(1).

The

Commissioners

argue

that,

because Shelby County is the only county in Tennessee that: 1)
meets the student population requirement; 2) has a transition
planning commission; and 3) will meet Chapter 905‟s requirements
either now or in the future, Chapter 905 is unconstitutional.
The

Commissioners

argue

that

the

possibility

of

additional

municipalities in counties with special school districts falling
under Chapter 905 is so remote as to be nonexistent.
The Memphis City Plaintiffs argue that Chapter 905 violates
Section 9 because no municipality in any other county with a
special school district can satisfy the population requirements
under Tennessee law.

The Memphis City Plaintiffs also argue

that, because two of the eight counties with special school
districts do not have functioning county boards of education,
Chapter 905 cannot apply.

The Memphis City Plaintiffs rely on

Dr. Swanson‟s expert testimony to argue that no municipality in
any other county with a special school district will fall under
Chapter 905.

47

The Municipalities argue that Gibson County currently falls
under Chapter 905.

The Municipalities argue that other counties

may fall under the statute by modest population growth.

They

rely

that

on

the

Tennessee

expert

counties

Municipalities

testimony
would

contend

of

Dr.

experience
that

the

Hicks,

who

population
Court

opined

growth.

need

not

The

address

legislative history because Chapter 905 is unambiguous.

They

argue that, even if Chapter 905 were ambiguous, the inferences
to be drawn from its legislative history would be insufficient
to overcome the presumption in favor of constitutionality.
The State argues that legislation applicable to more than
one county or municipality through population change is general
legislation.

The

State

contends

that,

so

long

as

“another

county or counties can bring themselves within the challenged
act‟s purview, the Act is a general law, regardless of when, or
whether, the county or counties may choose to do so.”
Findings of Fact and Conclusions of Law 10.)

(State‟s

The State contends

that Gibson County currently meets the population requirements
of Chapter 905.

The State also argues that Gibson County will

be required to establish a county school system if one of its
special

school

districts

surrenders

its

charter.

The

State

argues that additional counties may fall under Chapter 905 in
the future.

48

The threshold inquiry is the appropriate standard.

The

Commissioners argue that Farris requires legislation to apply
“throughout

the

State.”

The

Commissioners

argue

that,

if

legislation does not apply “throughout the State,” it is private
legislation that is void without a provision for local approval.
The

Municipalities

Farris

argue

transforms

the

that

the

Commissioners‟

relevant

inquiry

applicable” to “probably applicable.”
dispute

Farris‟

pragmatic”

rules

directive
of

that

construction

from

on

“potentially

The Municipalities do not

“reasonable,
be

reliance

used;

rational,

they

Burson refines courts‟ inquiries under Section 9.

and

contend

that

They contend

that, if a statute “„is potentially applicable throughout the
state, it is not local in effect even though at the time of its
passage it might have applied to [only one county].‟”
816

S.W.2d

at

729

(quoting

Farris,

528

S.W.2d

Burson,
at

552)

(alteration in original).
In Farris, the Tennessee Supreme Court invalidated Chapter
354 of the Public Acts of 1975 (“Chapter 354”), which provided,
in relevant part, for “a run-off election in counties with a
mayor as head of the executive or administrative branch of the
county government.”

528 S.W.2d at 551-52.

Chapter 354 was

enacted one year after the Shelby County Restructure Act, a
private

act

that

vested

Shelby

County‟s

administrative powers [] in a county mayor.”
49

“executive
Id. at 552.

and
As a

result of the Shelby County Restructure Act, Shelby County was
unique among Tennessee counties because it, “and it alone, ha[d]
a county mayor.”
The

court

Id.
invalidated

Chapter

354

under

Section

9,

rejecting the argument that the Chapter 354 “was not intended to
apply to one county alone, but rather applies to all counties in
the state which now or hereafter have a mayor as head of the
executive or administrative branch.”

Id. at 554.

Chapter 354

applied only to Shelby County “under the present laws of the
State.”

Id.

There was no “general enabling act under which any

other county may opt to so operate.”

Id.

Indeed, no other

county could fall under Chapter 354 “except by the affirmative
action of the General Assembly.”

Id. at 552.

Although the

General Assembly might adopt similar private acts in the future,
the court refused to “conjecture [about] what the law may be in
the

future.”

Id.

The

court

came

to

the

“inescapable”

conclusion that Chapter 354 “was in actuality an amendment” to
the Shelby County Restructure Act.

Id.

Because Chapter 354 did

not contain a provision requiring local approval, it was void.
In

Farris,

appropriate

method

the

Tennessee

of

analyzing

Supreme
a

statute

Court
under

stated

the

Article

11,

Section 9:
[W]e must determine whether this legislation was
designed to apply to any other county in Tennessee,
for if it is potentially applicable throughout the
50

state, it is not local in effect even though at the
time of its passage it might have applied to Shelby
County
only.
But
in
determining
potential
applicability we must apply reasonable, rational and
pragmatic rules as opposed to theoretical, illusory or
merely possible considerations.
Id.

(emphasis

added).

The

Tennessee

Supreme

Court

did

not

define reasonable, rational, pragmatic, theoretical, illusory,
or possible.

“Reasonable” is a common legal term that means

“[f]air [or] proper . . . under the circumstances.”
Dictionary 1272 (Bryan A. Garner ed. 7th ed. 1999).

Black‟s Law
“Rational”

is defined as “[h]aving sound judgment; sensible.”

XIII Oxford

English

“practical;

Dictionary,

at

291.

“Pragmatic”

dealing with a practice; matter-of-fact.”
Dictionary, at 278.

means

XII Oxford English

Together, these terms require courts to

apply fair, sensible, and matter-of-fact readings to statutes.
Theoretical,
are

illusory,

distinguishable.

or

See

merely
Farris,

possible
528

considerations

S.W.2d

at

552.

Theoretical is defined as “existing only in theory, ideal, or
hypothetical.”

XVII

Oxford

English

Dictionary,

at

901.

“Illusory” means having “the quality of . . . tending to deceive
by unreal prospects.”

VII Oxford English Dictionary, at 662.

“Possible” refers to that “which may come about or take place
without prevention by serious obstacles.”
Dictionary, at 175.

XII Oxford English

Together, these terms suggest that courts

51

must

refrain

from

statutory

interpretations

that

are

hypothetical, unreal, or face serious obstacles.
In Farris, the application of Chapter 354 to other counties
was “merely possible” or “theoretical.”

The Tennessee General

Assembly would have been required to pass a separate act to
include
might

additional

have

acted,

counties.
at

some

Although
point

in

the

the

dismissed that possibility as hypothetical.

General

future,

Assembly

the

court

Farris established

an inquiry in which potential application is grounded in common
sense and reasonableness.

See Farris, 528 S.W.2d at 554.

The parties agree that Farris requires the application of
reasonable,

rational,

construction.

and

They disagree

potential applicability.

pragmatic
about

rules

of

statutory

the scope of a statute‟s

The Commissioners argue that Farris

requires all statutes to apply “throughout the state” or provide
for

local

approval.

To

the

Commissioners,

“throughout

the

State” is tantamount to everywhere in the state.
In considering whether a statute applies “throughout the
State,” courts must decide whether the legislation was designed
to

apply

in

potentially
legislation.

“any

other

applicable

county

throughout

in

Tennessee,

the

state,”

Id. at 552 (emphasis added).

for
it

if
is

it

is

general

If legislation was

not designed to apply to “any other county in Tennessee,” it is

52

local

legislation

that

is

void

without

provision

for

local

approval.
There is tension between “any other county” and “throughout
the state.”

“Throughout” means from “the whole of (a space,

region, etc.); in or to every party of; everywhere in.”
Oxford

English

Dictionary,

at

14.

Throughout

may

conceptualized as “in or to every part, everywhere.”
signifies

an

“indeterminate

English Dictionary, at 538.

derivative

of

one.”

XVIII

also

be

Id.

“Any”

I

Oxford

Thus, “any county” could plausibly

refer to a number greater than one.

“Throughout the state”

could plausibly refer to “every part of” or “everywhere” in the
state.
Section 9 does not require that legislation apply to “every
part of” or “everywhere” in Tennessee.
Supreme

Court

municipalities

upheld

a

in

counties

all

statute

In Burson, the Tennessee

that
with

a

applied

“generally

to

minimum

population

of

300,000 that do not have a mayor-aldermanic form of government.”
Burson,

816

S.W.2d

at

730.

In

upholding

that

statute,

the

Tennessee Supreme Court did not state or otherwise suggest that
a statute must potentially apply to every Tennessee county; it
was sufficient that the statute could potentially apply within
the class created by the General Assembly.

The statute was

constitutional because it applied to the “three most populous”
counties in Tennessee and because “urban areas in additional
53

counties

will

eventually

become

county population increases.”

subject

to

[the

statute]

as

Id. at 730.

Burson and Farris are not in conflict.

“Throughout the

state” is more appropriately understood as throughout the class
created by the Tennessee General Assembly.

If the class created

by a statute is so narrowly designed that only one county can
reasonably, rationally, and pragmatically be expected to fall
within

that

class,

the

statute

provision for local approval.

is

void

unless

there

is

a

This conclusion is consistent

with the General Assembly‟s “power to draw classifications among
certain groups.”

City of Chattanooga v. Davis, 54 S.W.3d 248,

276 (Tenn. 2001); see also Op. Tenn. Att‟y Gen. 86-195, 1986
Tenn. AG LEXIS 16, at *4 (Dec. 1, 1986) (“The fact that a law
does not apply statewide does not make it a special or local
law.”).
The

general

municipality

that

law
does

in

Tennessee

not

operate

is
a

that
school

“[a]n

existing

system

or

a

municipality incorporated after May 19, 1998, may not establish
a

school

system.”

Tenn.

Code

Ann.

§

6-58-112(b)(1).

Chapter 905 suspends the general law if a municipality is: 1)
located in a county in which a transition planning commission
has been created; 2) authorized by its charter to operate a city
school system; and 3) the proposed city school system satisfies
Tenn. Comp. R. & Regs. 0520-01-08.01, which provides that a
54

municipality

must

“have

a

scholastic

population

within

its

boundaries that will assure an enrollment of at least 1,500
pupils in its public schools.”
Public Chapter 1, now codified at Tennessee Code Annotated
§ 49-2-502, provides for the transition planning commission that
is

a

requirement

municipality
planning

can

before

the

create

a

commission

can

general

new

only

law

school

be

is

suspended

system.

created

if

A

the

and

a

transition

transfer

of

administration of the schools in a special school district to
the county board of education would result in an “increase in
student enrollment within the county school system of 100% or
more.”

Tenn. Code Ann. § 49-2-502(b)(1).

The

class

necessarily

created

limits

by

Chapter

the
905

Tennessee
to

eight

General

Assembly

counties:

Shelby,

Gibson, Carroll, Henry, Wilson, Williamson, Scott, and Marion.
Of those eight counties, Shelby is the only one that has a
transition planning commission and in which municipalities have
taken steps to create municipal school districts under Chapter
905.

Chapter

approval.

To

905
pass

does

not

include

constitutional

a

provision

muster

under

for

local

Section

9,

Chapter 905 must be potentially applicable to one or more of the
remaining

seven

counties

using

pragmatic rules of construction.

55

reasonable,

rational,

and

See Farris, 528 S.W.2d at 552.

The

parties

Municipalities
population

characterize

Chapter

905

argue

that

the

1,500-student

threshold

that

has

been,

or

differently.
requirement

will

be

The
is

attained

a
by

cities in the remaining counties with special school districts.
The

Municipalities

thresholds

and

rely

on

population

a

distinction

brackets,

a

between

distinction

population
that

the

Commissioners contend is artificial and would emasculate Section
9.

The Commissioners argue that Chapter 905 is not applicable

to any county but Shelby under any reasonable, rational, and
pragmatic construction.
Tennessee

case

law

has

addressed

population

thresholds,

which are targets to be attained, and population brackets, which
are drawn to target specific counties.
Wayne

Cnty.,

588

S.W.2d

270,

274-277

distinction does not apply in this case.
contain a population bracket.

See, e.g., Leech v.
(Tenn.

1979).

That

Chapter 905 does not

See id. at 277 (a statute that

applied to counties “having a population of not less than 12,350
nor more than 12,375 or not less than 38,800 nor more than
38,900 by the federal census of 1970 or any subsequent federal
census” violated Section 9).

Chapter 905 also does not contain

a population threshold in the manner addressed by the Tennessee
Supreme Court.

See Burson, 816 S.W.2d at 730 (a statute that

applied “in all counties with a minimum population of 300,000
that do not have a mayor-aldermanic form of government”
56

was

constitutional);

see

also

Cnty.

of

Shelby

v.

McWherter,

936

S.W.2d 923, 935 (Tenn. Ct. App. 1996) (“Only persons who are
residents of the area served by a local education agency are
eligible

to

populations

serve
of

on

seven

the

school

hundred

board

thousand

in

counties

(700,000)

with

or

more,

according to the 1990 Federal Census or any subsequent Federal
Census.”).
Chapter
criteria

905

for

the

establishes
creation

three
of

separate

municipal

but

school

necessary
districts.

Population is only one criterion; it is not the focus of the
classification created by the Tennessee General Assembly.

See

Burson, 816 S.W.2d at 730 (population threshold indicated that
the

statute

could

“become

applicable

to

many

other

counties

its

entirety,

depending on subsequent population growth”).
The
applying

Court

must

reasonable,

address

Chapter

rational,

and

905

in

pragmatic

rules

of

construction to determine its potential application to counties
other than Shelby.

See Farris, 528 S.W.2d at 552.

The Commissioners argue that Chapter 905 does not apply to
Gibson

County

because

it:

1)

does

not

have

a

county

school

board; 2) has existing bond debt; and 3) has special school
districts that are subject to federal consent decrees.

The

Municipalities argue that: 1) Gibson County satisfies Chapter
905‟s population requirement; 2) Gibson County would be required
57

to create a county board of education if one of its special
school

districts

3)

the

to

the

Gibson County does not operate a county school system.

Its

existence

of

availed

bonded

itself

debt

is

of
not

Chapter
an

1;

and

impediment

implementation of Chapter 905.

students are currently served in municipal or special school
districts.

Under Tennessee Code Annotated § 49-2-501(b)(2)(C),

“in those counties in which all students in grades kindergarten
through twelve (K-12) are eligible to be served by city and
special school systems, the county shall not be required to
operate

a

separate

county

school

system,

nor

shall

it

be

necessary that a county school board be elected or otherwise
constituted.”
that

Milan is the only municipality in Gibson County

currently

Chapter 905.

satisfies

the

1,500-student

requirement

in

Data from the 2010 federal census shows that the

school-age population of Milan is 1,753.
Municipalities

argue

that,

if

Milan

(Tr. Ex. 48.)
SSD

transferred

The
its

administration to the county, Tennessee Code Annotated § 49-2501(b)(2)(C) would require Gibson County to establish a county
school system and the necessary administration.
In the absence of a county school system, the application
of

Chapter

Chapter

905

905

to

applies

Gibson
only

County
to

is

counties

planning commission has been created.
58

especially
in

which

problematic.
a

transition

Such a commission can

only be created when a transfer of administration would result
in a specified increase in student enrollment within the county
school system.

Gibson County does not have a county school

system.
Whether a special school district in Gibson County will
surrender its charter, thus requiring Gibson County to organize
a

county

school

system,

exists

in

theory,

not

in

reality.

Gibson County “operates no schools, has no elected school board,
and levies no countywide property tax to fund education.”
McKnight, 2005 Tenn. App. LEXIS 540, at *3.

See

Gibson County has

vigorously defended its “unique method of operating and funding
education.”

See id.

The impetus for Gibson County implementing

its “unique method” was the difficulty in obtaining adequate
funding for rural schools.

Id. at *6.

Dr. Mary Sneed Reel (“Dr. Reel”), the Superintendent of the
Milan SSD, is unaware of any efforts by Milan SSD to abolish
itself.
testified

(Dep. Of Mary Sneed Reel 7:13-21.)
that

the

Milan

SSD

receives

Indeed, Dr. Reel

benefits,

greater tax base, from its current configuration.
21.)

including

a

(Id. 6:16-

The Honorable Chris Crider, the Mayor of Milan, is unaware

of any efforts to abolish the Milan SSD and testified that any
efforts at abolition would be “unlikely.”
7:16-18, 8:16-24.)

59

(Dep. Of Chris Crider

Given

Gibson

County‟s

“unique

method

of

operating

and

funding education,” the absence of a county school system, Milan
SSD‟s bond indebtedness, and the unlikelihood that Milan SSD
will abolish its school system, the application of Chapter 905
to Gibson County exists only in theory.

Farris instructs courts

to refrain from entertaining theories.

See Farris, 528 S.W.2d

at 552.

The “group of conditions” in Chapter 905 is “so unusual

and particular” that “only by a most singular coincidence could
[it] be fitted to [Gibson County].”
24, 26 (1927).

See In re Elm St., 158 N.E.

Applying reasonable, rational, and pragmatic

rules, Chapter 905 does not and will not apply to Gibson County.
The

parties

Carroll County.

dispute

the

application

of

Chapter

905

to

The Commissioners argue that no municipality in

Carroll

County

can

student

population

reasonably
by

be

2030.

The

Swanson‟s testimony and report.

expected

to

have

Commissioners

a

rely

1,500on

Dr.

The Municipalities argue that

municipalities in Carroll County, particularly McKenzie, will
fall under Chapter 905 through modest population growth.

The

Municipalities rely on Dr. Hicks‟ testimony and report.
The Court finds Dr. Swanson‟s testimony credible.
Dr.

Hicks,

Dr.

Swanson

forecast

student-age

Carroll County municipalities through 2030.
Carroll

County‟s

total

growth by age ranges.

population

growth,

Unlike

populations

in

Dr. Hicks forecast
not

the

population

Based on Dr. Swanson‟s forecast, the
60

possibility

of

any

municipality

student-age

population

of

(Trial Tr. 131:7-11.)
Chapter

905

would

in

1,500

Carroll

is

County

virtually

having

a

nonexistent.

As an additional complicating factor,

apply

only

if

a

qualifying

school

system

elected to transfer its administration to a county school system
that serves two students, all in remedial programs.

(Tr. Ex.

4.)
The

Municipalities

and

the

State

contend

that

municipalities in Carroll County will fall under Chapter 905 as
they

grow.

appropriate
“become

This

is

not

inquiry

is

applicable

to

a

not
many

subsequent population growth.”
application

of

all

of

population
simply
other

whether

case.

Chapter

counties

Chapter

905‟s

The

905

can

depending

on

Burson, 816 S.W.2d at 730.

reasonable, rational, and pragmatic.
552.

threshold

conditions

must

The
be

See Farris, 528 S.W.2d at

Even considering population growth alone, Dr. Swanson‟s

testimony establishes that the possibility of municipalities in
Carroll County falling under Chapter 905 is so unlikely as to be
nonexistent.
In addressing the constitutionality of a statute, the Court
must presume that the statute is constitutional and resolve all
doubts in favor of constitutionality.

See Vogel, 937 S.W.2d at

858 (court begins “with the presumption which the law attaches
and which we cannot ignore that the acts of the General Assembly
61

are

constitutional”).

The

presumption

of

constitutionality

rests on the availability of reasonable statutory constructions.
See Davis-Kidd, 866 S.W.2d at 529 (courts have a “duty to adopt
a

construction

which

will

sustain

a

statute

and

avoid

constitutional conflict if any reasonable construction exists
that satisfies the requirements of the Constitution”).
reasonable

construction

could

Chapter

905

apply

Under no

to

Carroll

County.
The parties do not seriously dispute that Chapter 905 does
not

apply

and

will

not

apply

Henry, and Marion Counties.

to

Scott,

Williamson,

Wilson,

Dr. Swanson‟s analysis demonstrates

that no special school district in any of those counties has or
will have sufficient student population to increase the student
population in the county school system by 100% or more.

Dr.

Swanson testified that the necessary enrollment increases are so
unlikely as to be virtually impossible.

That testimony has not

been contradicted.
The Commissioners and the Memphis City Plaintiffs contend
that

the

legislative

history

targeted Shelby County.
legislative

intent.

demonstrates

that

Chapter

905

Section 9 claims directly implicate

See

Farris,

528

S.W.2d

at

552

(under

Section 9, courts “must determine whether . . . legislation was
designed to apply to any other county in Tennessee”) (emphasis
added).

In

Farris,

the

Tennessee
62

Supreme

Court

appended

excerpts from the legislative history “in an effort to ascertain
the legislative intent.”

See 528 S.W.2d at 555-56.

The legislative history of Public Chapter 905, taken as a
whole and fairly considered, firmly establishes that Chapter 905
was designed to apply only to Shelby County.

That design is not

dispositive, but it supports the conclusion, derived from an
examination of potentially comparable counties, that Chapter 905
applies to a particular county.
One example among many occurred on April 27, 2012.

When

discussing House Bill 1105 (“HB 1105”), which became Chapter
905, two legislators explained why the bill that came from the
Conference

Committee

differed

from

the

bill

in

its

original

form:
Rep. Hardaway: [T]his is different from the original
Bill in that it only, this is different from the
original Bill in that it only pertains to Shelby
County?
Rep. Montgomery: That is what it does. What they did
here is by stating what I read there, if a
municipality is located within a county in which a
transition planning commission has been developed, and
that is the only county in the State of Tennessee that
has that, so it limits it to Shelby. You are right.
(HB

1105

46,

ECF

No.

306-6.)

This

and

similar

exchanges

reinforce Chapter 905‟s limited application to Shelby County.
The Municipalities cite portions of the legislative history
in

which

possible

references

are

application

to

made
a

to

few
63

“counties”

other

or

counties

in

which

the

is

mentioned.

There is in the history a sense of a wink and a nod, a candid
discussion

of

the

bill‟s

third-party correction.

purpose

occasionally

blurred

by

a

The history is clear, however, that the

bill never would have passed had it not been intended to apply
only to Shelby County.
For

purposes

of

its

Chapter

905

analysis,

the

Court

presumes the good faith of the Tennessee General Assembly.
Court

presumes

that

the

General

Assembly

did

not

intend

The
to

violate Article 11, Section 9, but the General Assembly did
intend the bill to apply only to Shelby County.
“We

close

our

eyes

to

realities

if

we

do

not

see

in

[Chapter 905] the marks of legislation that is special and local
in terms and in effect.”

In re Elm Street, 158 N.E. at 26.

Chapter 905 was tailored to address unique circumstances that
had arisen in Shelby County.

The conditions to which it applies

are “so unusual and particular [and] precisely fitted” to Shelby
County, that “only by a most singular coincidence could [it] be
fitted to any other [county].”

Id.

Only Shelby County has undertaken the process set forth in
Chapter 1.

Chapter 905 establishes a series of conditions that

have no reasonable application, present or potential, to any
other county.
VI.

Conclusion

64

Although general in form, Public Chapter 905 is local in
effect.

Because

it

does

not

include

a

provision

for

local

approval, Chapter 905 is VOID under Article 11, Section 9 of the
Tennessee Constitution.

All actions taken under the authority

of Chapter 905 are VOID.

The Municipalities are enjoined from

proceeding

905

under

Chapter

to

establish

municipal

school

districts.
The Third-Party Plaintiffs are invited to submit additional
arguments,

both

factual

and

legal,

addressing

only

the

constitutionality of Chapters 970 and Section 3 of Chapter 1
under

Article

11,

Sections

8

and

9

of

the

Tennessee

Constitution.

Those arguments should be submitted not later

than

11,

December

2012,

and

should

references to legislative history.

not

include

further

The Third-Party Defendants

may respond no later than December 27, 2012.
All other deadlines in this case are suspended, and the
trial scheduled on January 3, 2012, is continued.
So ordered this 27th day of November, 2012.

s/ Samuel H. Mays, Jr._______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

65