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Art. XI, § 12

  • 6.

    Education funding system.

  • 1.

    Failure of Challenge to 1978 Amendment.

Citizens and taxpayers who were voters in the referendum calling the 1977 limited constitutional convention lacked standing to challenge amendment to this section on ground that the amendment exceeds the limits of the convention call of Acts 1976, ch. 848 and therefore is ineffective under Tenn. Const., art. XI, § 3. Parks v. Alexander, 608 S.W.2d 881 (Tenn. Ct. App. 1980), cert. denied, 451 U.S. 939, 101 S. Ct. 1889, 68 L. Ed. 2d 396 (1981).

Lawsuit challenging amendment to this section did not present a justiciable controversy under the Declaratory Judgments Act where amendment was not self-executing but required legislative action to affect any rights of the plaintiffs, thereby rendering the controversy theoretical and contingent. Parks v. Alexander, 608 S.W.2d 881 (Tenn. Ct. App. 1980), cert. denied, 451 U.S. 939, 101 S. Ct. 1889, 68 L. Ed. 2d 396 (1981).

2. Municipal and County Schools.

Under Tennessee law, the county school systems are separate from county governments, the two entities having separate functions, ori- gins and management, and thus where an employee worked for each entity for less than a year, she was not able to combine the two periods to become an eligible employee under the federal Family and Medical Leave Act (29 U.S.C. § 2612). Rollins v. Wilson County Gov’t, 154 F.3d 626, 1998 Fed. App. 280 (6th Cir. 1998).

3. —Transportation.

Transportation of certain pupils to a particular school rather than to a closer school did not violate this section in absence of arbitrary or unreasonable abuse of discretion by school board. Davis v. Fentress County Bd. of Educ., 218 Tenn. 280, 402 S.W.2d 873 (1966).

4. Federal Courts.

The mere fact that the state general assembly may go farther than it has in controlling and paying for public schools does not mean that the federal courts, in the exercise of their equitable powers, ought to tell the general assembly what it must do in this respect. Kelley v. Metropolitan County Bd. of Educ., 836 F.2d 986 (6th Cir. 1987), cert. denied, 487 U.S. 1206, 108 S. Ct. 2848, 101 L. Ed. 2d 885 (1988).

5. Equal Educational Opportunities.

The constitution imposes upon the general assembly the obligation to maintain and support a system of free public schools that affords substantially equal educational opportunities to all students. Tennes- see Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993).

6. Education Funding System. The constitutionality of the state’s education funding system pre- sents a justiciable issue. Tennessee Small Sch. Sys. v. McWherter, 851

  • S.


    • 1.

      Scope of section.

    • 2.

      Common school fund and educational fund.

    • 3.

      Legislative power over school fund.

    • 4.

      —To compromise suits.

    • 5.

      ‘‘The Bank of Tennessee.’’

    • 6.

      Escheated property to school fund.

    • 7.

      Delegation of taxing power.

    • 8.

      Municipal and county schools.

    • 9.

      Exemptions of university.

  • 10.

    Valid acts affecting schools.

  • 11.

    Segregation provisions.

  • 12.

    Devise to unincorporated church.

  • 1.

    Scope of Section.

The constitutional provision making it ‘‘the duty of the general assembly, in all future periods of this government, to cherish literature and science’’ is, to be sure, merely a direction to the general assembly, but it nevertheless indicates the popular feeling and the public policy upon this great question. Green v. Allen, 24 Tenn. 170 (1844) (in dissenting opinion).

The language of this section treating of the common school fund is not confined to such fund, but is declaratory of the sense of the constitutional convention (and of the people who adopted it) upon the

subject of education, and the duty of the general assembly at all times to ‘‘cherish’’ education. State v. Fisk Univ., 87 Tenn. 233, 10 S.W. 284 (1889); Ward Sem. for Young Ladies v. Mayor of Nashville, 129 Tenn. 412, 167 S.W. 113 (1913).

The school fund established under the constitution, and lost by the misfortunes of war and the subsequent events, was again spoken into existence by legislative fiat (Acts 1873, ch. 24, § 6) creating and appropriating for a permanent school fund the sum of two million five hundred and twelve thousand and five hundred dollars ($2,512,500), and the faith of the state was pledged for the payment of the interest upon that fund for the equal benefit of all the people of the state. This school fund, thus spoken into existence by legislative fiat, became a permanent common school fund under this provision of the constitu- tion. Leeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899).

This section of the constitution makes it the express duty of every general assembly at all times to encourage, foster, and cherish litera- ture and science. As one of the chief means of accomplishing this most important purpose, the constitution contemplated the establishment of a common school system, and provided the common school fund. State v. Mayor of Knoxville, 115 Tenn. 175, 90 S.W. 289 (1905).

Constitution manifests the intention of the people that the education of the children through a system of common schools should be a state purpose. Board of Educ. v. Shelby County, 155 Tenn. 212, 292 S.W. 462

  • (1927)


  • 2.

    Common School Fund and Educational Fund.

The common school fund defined in this section is one thing and the educational fund to be raised from polls is quite another. The common school fund is for the support of the common schools by the use of the interest thereon. The educational fund to be derived from polls may be more comprehensively appropriated to educational purposes, including not only common schools, but colleges, academies, public and private schools, libraries, in fact every enterprise that may in its nature be ‘‘educational’’ or an ‘‘educational purpose.’’ The perpetual existence and continuance of this educational fund is guaranteed by making the elective franchise depend upon contribution to it, as shown by the constitution (art. II, § 28; art. IV, § 1). Therefore, the statute (Acts 1881, ch. 173) for the compromise and settlement of the bonded indebtedness of the state, which provided for the issuance of the state’s refunding bonds whose coupons (as provided by the third section thereof) should be receivable in payment for all taxes and debts, except taxes for the support of the common schools, and for the payment of the interest on the common school fund, and not excepting the taxes on polls devoted to educational purposes, and which bonds and coupons, according to the form prescribed by the ninth section, omits the entire exception made in the third section, is unconstitutional and void, for the reason that, under such act, the common school fund and also the educational fund are both attempted to be diverted from their consti- tutional purpose of education to that of paying the state’s indebtedness. Lynn v. Polk, 76 Tenn. 121 (1881); Ballentine v. Mayor of Pulaski, 83 Tenn. 633 (1885). But see Tenn. Const, art. IV, § 1, as amended in 1953.

3. Legislative Power Over School Fund.

The general assembly has the power to change the direction of a donation to a county before it has been appropriated, or rights have been acquired under it. Thus, that portion of the internal improvement fund created by Acts 1829, ch. 75, to which any particular county (Smith) was entitled by apportionment may be diverted therefrom and converted (as was done by Acts 1831, ch. 43, § 8) into a part of the school fund of such county to be disposed of and appropriated according to law (Acts 1829, ch. 107, § 10). The statute (Acts 1837-1838, ch. 83), authorizing the county court of Smith County to make such disposition of the internal improvement fund belonging to such county as to the court might seem proper, and to prosecute actions against any person who might fail to pay over any of such funds in his hands, did not include or apply to the internal improvement fund so previously converted into the school fund of such county, because such fund was not then any part of the internal improvement fund of such county. Cage v. Hogg, 20 Tenn. 49 (1839).

Previous to the Constitution of 1834, the school fund belonged to the state, and it was subject to the absolute control of the general assembly. But under the Constitution of 1834, as well as that of 1870, as shown by the provision of the above sections of the two constitutions, the general assembly was and is prohibited from passing any law diverting either the principal or interest of the fund to any purpose other than the use and support of the common schools. For the purpose of producing profits or interest on the fund for the use of the common schools, the general assembly had the power to loan or invest the fund,

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