Article XI. Miscellaneous Provisions of the Constitution of the State of Tennessee

“Section 12. The State of Tennessee recognizes the inherent value of education and encourages its support. The General Assembly shall provide for the maintenance, support and eligibility standards of a system of free public schools. The General Assembly may establish and support such postsecondary educational institutions, including public institutions of higher learning, as it determines”.

We hear the word constitution and assume that everyone knows what it means. In one sense, the first Merriam Webster dictionary definition quote below is generally understood among those discussing a “constitution” of a state or nation.

“a: the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it

b: a written instrument embodying the rules of a political or social organization”

https://www.merriam-webster.com/dictionary/constitution

In practical day-to-day life under the laws of a state or nation, the term “constitution” means more than this simple definition superficially suggests. In reality, wide variation exists in how the public views the role, scope, and power of a “constitution”. The best contemporary example of how a constitution can be viewed revolves around the idea of whether or not one views our US Constitution as a “living constitution”. Without getting into the nuances, this is simply the erroneous belief that our US Constitution is meant to adapt to the times and shift with today’s legal mood rather than stand on enduring principles. Your agreement or disagreement with this view of the constitution greatly determines how we as citizens interpret and apply it to current issues like discrimination, religious freedom, and more.

If we consider the Tennessee constitution according to the dictionary without the “living constitution” approach, we cannot shape it into whatever legal and societal mood is in vogue. This is called the “Originalist” approach. Neither the collective body of people in a state or nation nor an individual within that body have absolute rights to do as they please in all situations. A constitution sets those boundaries into explicit terms for all to respect and follow.

Then arises another divisive determinant in how one applies constitutional law to daily life.    The watershed lies in whether we believe government has only those powers explicitly granted to it or has all power that is not restricted from it.  In other words, proponents of the former approach believe that our legislators only have powers granted to it by the people but cannot go beyond what is clearly and explicitly granted on paper.  In the latter approach, the government is free to exert power in any area unless we have set explicit constitutional boundaries in that area.  Such a difference in approach can make a world of difference in areas that are not explicitly or fully addressed by the Tennessee constitution such as private education.

For our Tennessee Constitution, we can look at our current issue of School Choice and first consider what power has been granted to the state in regard to educating children. The constitutional article cited above clearly spells out the delegated responsibility of the state government to provide for a system of free and public education. They are given the responsibility to provide maintenance and support for such schools, presumably meaning funding, They are to also provide eligibility standards, presumably allowing the state to set standards for what counts as a public school. This seems simple enough, free schools for anyone to access which are paid for by the state and operated according to the state’s standards.

At no point in this definition have we heard of our state being given responsibility for any school system other than the public one. Private schooling is not mentioned. Here the second set of differing views on constitutional law comes into play. Does the absence of explicit language in the Tennessee constitution regarding private education mean that the state cannot interfere with and fund private education in our state OR does it mean it can do so but does not have to? While it clearly does not require the state to fund or to oversee private education, does the constitution allow the state such activity in private education if the state so chooses?

Given the reality that our state Department of Education currently oversees the agencies which approves private schools in our state and dictates standards for graduation in our state, the general consensus that the state can oversee private education has been accepted for decades. While debatable at a philosophical level, at a practical level society already conceded this right to the power of the state. Obviously, the public’s beliefs described earlier regarding rights of the government in the constitution have allowed this to occur, but that does not mean it is the correct view.

Now the question arises whether the state can also provide funding for private education.  Reading through the Tennessee constitution, you will not find explicit support for such a practice by the state nor any prohibition.  Therefore, we come back to how we approach this question of whether or not the state can do something not addressed or restricted by the constitution. 

In this case, the constitutional article addressing public education requires that the public education offered by the state meets several criteria.  It must be free.  It must be for the public.  It must be paid for by the state.  It must be maintained by the state.  In none of this does it address paying for private education in regard to charter schools nor to any private school.  Neither are homeschools mentioned.

If we take this at face value, the state does not automatically have a role in overseeing private education in contrast to the current practice.  It definitely does not have an explicit role in paying for any individual child to receive a private education.  While many look to a general welfare clause in the federal constitution in order to grant the federal government a right to fund endless programs for public good, there is no such clause in our state constitution.  Such a general welfare concept is rather assumed and used by Tennessee legislators to justify legislation and expenditures for the best interest of the public.

At this point, we have legislators stating publicly that they are allowed to make whatever law they wish in regard to homeschool education (you can hear this in the Education Committee regarding SB503).  They do so because we the people are either not aware of our rights and the government’s constitutional limits or we are not willing to stand on those rights we believe rightly to be ours. 

In closing, we have gone down the slippery slope accepting the government’s claim that they have power in an area of our lives unless the constitution prohibits it.  Instead, we must assert that they only have power where the constitution explicitly permits.  In this case, no permission to oversee nor fund private education has been granted to the state in the constitution.  That should put an end to the possibility of school choice in Tennessee whether or not one believes it will help children.  Children in the public school system truly need help, but we must find a different solution than one which sacrifices constitutional principles.