By Kyle Mallory & Samantha Bates
This is a major reason we must pay close attention to our elections, and must ensure the people we trust hold elected offices. This is also why our US and Tennessee Constitution include numerous checks and balances. If a person is elected or appointed that did not represent the public, other officials could and are able to impede various actions.
Recently, our General Assembly has begun to identify that Tennessee is lacking some checks and balances. Apparently, Tennessee is the only state where the attorney general is appointed by the Supreme Court. This is further complicated by the fact that the Supreme Court is appointed by the Governor. In forty-three states, the attorney general is elected, and the remaining six states have some combination of legislative, executive, and judicial input. Normally, this may have little bearing on public education, if any. However, Tennessee again is an anomaly.
Recently, Attorney General Robert Cooper released a statement upholding the actions of Commissioner of Education Kevin Huffman, (also appointed by the Governor) about whether he had the legal authority to waive regulatory or statutory requirements related to federal and state student assessment and accountability. Cooper cites TCA 49-1-201(d)(1), which states that the commissioner of education may waive some state laws that impede the department’s goals or missions if districts request a waiver. There were also specific prohibitions that were mentioned.
Many legislators, analysts, and citizens questioned the Attorney General’s ruling. Cooper uses the very language in the Federal “No Child Left Behind” law and calls them “terms of art” in order to reach the conclusion that the waiver by Huffman does not affect or involve evaluations at the State and Federal levels. The use of the words “terms of art” by the Attorney General in his ruling was interesting, as was failure to mention that Tennessee has been issued a waiver of many of the No Child Left Behind requirements. Tennessee is among 34 states that were granted exemptions from punitive measures of that law.
This is a subject that is expected to continue to be scrutinized and perhaps further debated. If the Tennessee General Assembly feels the Cooper ruling is in error, as do many people that work within education law, and realize the contradiction by the Attorney General in his ruling, expect state legislators to recognize the necessity for tweaks to existing state law for clarification.
Essentially, the AG Ruling and his legal opinion allowed appointed - not elected - officials the opportunity to bypass legislation - created by elected officials - if the commissioner deems it more efficient to do so. In this case, the cost for efficiency is public input, and legislative intent is muted. Little consideration was apparently given to the fact that the delay in receiving TCAP scores by districts impacted individual schools and district closing operations and interrupted the decision-making process they utilized in planning for the upcoming school year. There is a danger that by silencing the public through the legal hammer at the disposal of the state and utilization of appointed officials becomes a much more progressive force than the will of parents, educators and even legislators in shaping public education policy in Tennessee.
The remedy of course, is to change the method of selecting the Attorney General, and or the Commissioner of Education. This of course will require much more debate and discussion, and perhaps legislative action. We expect this matter will continue to be questioned among educators and policymakers. Cooper’s ruling raised more questions than it answered.
Kyle Mallory is a classroom teacher in Stewart County. She was VFW Middle School Teacher of the Year.
Samantha Bates is Director of Member Services for Professional Educators of Tennessee.