04/18/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 7, 2023 Session
PARENTS’ CHOICE TENNESSEE ET AL. v. JASON GOLDEN, IN HIS
OFFICIAL CAPACITY AS SUPERINTENDENT OF WILLIAMSON
COUNTY SCHOOLS ET AL.
Appeal from the Chancery Court for Williamson County
No. 22CV-51642 Michael Binkley, Judge
___________________________________
No. M2022-01719-COA-R3-CV
___________________________________
Parents, on behalf of their children who are public school students, and an
education-focused parents’ rights organization brought suit against the Williamson County
Board of Education, arguing that the Board’s adoption and implementation of a particular
curriculum violates Tennessee law. The Plaintiffs argue the curriculum violates a state law
restricting the use of Common Core textbooks and instructional materials in public schools
and violates another state law that bars the teaching of certain prohibited concepts in public
schools. The School Board moved to dismiss. The trial court granted the motion on two
justiciability grounds. The trial court concluded that the parents and the parents’ rights
organization lacked standing to maintain either claim. The trial court also concluded that
the Plaintiffs were required to exhaust administrative remedies with regard to their
prohibited concepts claim and had not done so. The Plaintiffs appealed. With the exception
of a family that left the county public school system and has not expressed in their pleadings
an intent to return, we conclude that trial court erred in finding the Plaintiffs lacked
standing. We affirm the trial court’s dismissal of the prohibited concepts claim for failure
to exhaust administrative remedies. We reverse, however, the dismissal of the Plaintiffs’
Common Core claim and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part; Reversed in Part; Case Remanded
JEFFREY USMAN, J., delivered the opinion of the court, in which ANDY D. BENNETT and
W. NEAL MCBRAYER, JJ., joined.
Larry L. Crain and Emily Castro, Brentwood, Tennessee, for the appellants, Jennifer Doe,
J.L., P.J.L., Parents’ Choice Tennessee, and Katherine Roe.
1
Lisa M. Carson, Franklin, Tennessee, for the appellee, the Williamson County Board of
Education.
OPINION
I.
In 2020, the Williamson County Board of Education adopted the Wit & Wisdom
curriculum for Williamson County public schools. This curriculum was implemented by
principals and teachers in Williamson County public schools. In July 2022, P.J.L. and J.L.,
who are the parents of a minor child, and the organization Parents’ Choice Tennessee1 filed
suit. They brought suit against Jason Golden, in his official capacity as Superintendent of
Williamson County Schools, Dave Allen, in his official capacity as Assistant
Superintendent of Teaching Assessment, the Williamson County Board of Education (the
“School Board”), and Penny Schwinn, in her official capacity as Commissioner of
Education. An Amended Complaint was filed September 2022. The Amended Complaint
added as Plaintiffs C.L., who is the minor child of P.J.L. and J.L., Jennifer Doe and her
minor children A.B. and B.B., and Katherine Roe and her minor children C.D. and D.D.
The Parents (P.J.L., J.L., Jennifer Doe, and Katherine Roe) brought claims on behalf of
their respective children.
In their Amended Complaint, the Plaintiffs (the Parents on behalf of their children
and Parents’ Choice) did not seek monetary damages but instead sought declaratory and
injunctive relief. The Plaintiffs essentially asserted four violations of law. One, the
Plaintiffs asserted that the adoption and implementation of the Wit & Wisdom curriculum
violated Tennessee Code Annotated section 49-6-1019,2 which prohibits the teaching of
1
According to the Plaintiffs’ Amended Complaint,
Plaintiff, Parents’ Choice Tennessee (“Parents’ Choice”), is a member advocacy
organization, and an incorporated nonprofit corporation based in Franklin, Tennessee. It is
comprised of over 1,400 parents, grandparents and stakeholders who reside throughout
Williamson County, the State of Tennessee and the nation. Parents’ Choice was organized
and incorporated for the express purpose of representing and protecting the parents of
Williamson County schoolchildren of all ages in grades kindergarten – 12th grade and their
children from harmful, unlawful and age-inappropriate content. Parents’ Choice was
founded, in large part, to advocate on behalf of Williamson County parents in response to
the WCBOE’s adoption and implementation of Wit & Wisdom. Its goal is to advocate on
behalf of its members for wholesome values honored in schools; to foster parental input in
what is being taught to their members’ children; and to intervene on behalf of its members
to advocate for parental rights to safeguard and protect children from harmful and unlawful
content in childhood learning curriculum.
2
Tenn. Code Ann. section 49-6-1019 provides as follows:
2
certain concepts in Tennessee public schools (“Prohibited Concepts Claim”). Two, the
Plaintiffs also asserted that adoption and implementation of the Wit & Wisdom curriculum
(a) An LEA or public charter school shall not include or promote the following concepts as
part of a course of instruction or in a curriculum or instructional program, or allow teachers
or other employees of the LEA or public charter school to use supplemental instructional
materials that include or promote the following concepts:
(1) One (1) race or sex is inherently superior to another race or sex;
(2) An individual, by virtue of the individual’s race or sex, is inherently privileged, racist,
sexist, or oppressive, whether consciously or subconsciously;
(3) An individual should be discriminated against or receive adverse treatment because of
the individual’s race or sex;
(4) An individual’s moral character is determined by the individual’s race or sex;
(5) An individual, by virtue of the individual’s race or sex, bears responsibility for actions
committed in the past by other members of the same race or sex;
(6) An individual should feel discomfort, guilt, anguish, or another form of psychological
distress solely because of the individual’s race or sex;
(7) A meritocracy is inherently racist or sexist, or designed by a particular race or sex to
oppress members of another race or sex;
(8) This state or the United States is fundamentally or irredeemably racist or sexist;
(9) Promoting or advocating the violent overthrow of the United States government;
(10) Promoting division between, or resentment of, a race, sex, religion, creed, nonviolent
political affiliation, social class, or class of people;
(11) Ascribing character traits, values, moral or ethical codes, privileges, or beliefs to a race
or sex, or to an individual because of the individual’s race or sex;
(12) The rule of law does not exist, but instead is a series of power relationships and
struggles among racial or other groups;
(13) All Americans are not created equal and are not endowed by their Creator with certain
unalienable rights, including, life, liberty, and the pursuit of happiness; or
(14) Governments should deny to any person within the government’s jurisdiction the
equal protection of the law.
(b) Notwithstanding subsection (a), this section does not prohibit an LEA or public charter
school from including, as part of a course of instruction or in a curriculum or instructional
program, or from allowing teachers or other employees of the LEA or public charter school
to use supplemental instructional materials that include:
(1) The history of an ethnic group, as described in textbooks and instructional materials
adopted in accordance with part 22 of this chapter;
(2) The impartial discussion of controversial aspects of history;
(3) The impartial instruction on the historical oppression of a particular group of people
based on race, ethnicity, class, nationality, religion, or geographic region; or
(4) Historical documents relevant to subdivisions (b)(1)-(3) that are permitted under § 49-
6-1011.
(c) If the commissioner of education finds that an LEA or public charter school knowingly
violated this section, then the commissioner shall withhold state funds, in an amount
determined by the commissioner, from the LEA or public charter school until the LEA or
public charter school provides evidence to the commissioner that the LEA or public charter
school is no longer in violation of this section.
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violated the Parents’ substantive due process rights to control the upbringing of their
children in violation of the Fourteenth Amendment to the United States Constitution
(“Constitutional Claim”). Three, the Plaintiffs asserted that through the implementation of
the Wit & Wisdom curriculum that the School Board violated the prohibition under
Tennessee Code Annotated section 49-6-2206(b)(2)(A)3 on the use of Common Core
textbooks and materials (“Common Core Claim”). Four, the Plaintiffs alleged that
Commissioner Schwinn violated Tennessee Code Annotated section 49-6-2202(b)(5)4 by
placing Wit & Wisdom, which allegedly is a Common Core curriculum, on the approved
list (“Approval List Claim”).
In their 187-page Amended Complaint, the Plaintiffs examine multiple texts and
materials utilized in Williamson County public schools as part of the Wit & Wisdom
curriculum. The Plaintiffs address what they assert are the philosophies and goals
underlying the curriculum, including asserting that the curriculum teaches critical race
theory. The Plaintiffs in their Amended Complaint address how the adoption and
implementation of the Wit & Wisdom curriculum adversely impacted the minor children
C.L., A.B., B.B., C.D., and D.D. For example, the Plaintiffs asserted that the curriculum
caused psychological injuries to the children including anxiety, stress, and race-based guilt.
For the latter, the Plaintiffs allege that the curriculum is designed to foster a sense of guilt
based upon past actions of other persons who are of the same race. The Plaintiffs contend
that the curriculum succeeded in achieving this aim. The Plaintiffs also asserted the
curriculum fostered, in violation of Tennessee law, certain values that were contrary to
those they endeavor to instill in their children; for example, they allege that the curriculum
taught children to judge persons based upon the color of their skin. The Plaintiffs also
alleged educational harms in terms of learning regression and lack of educational
advancement. For example, some of the children allegedly experienced a diminishment in
3
Tennessee Code Annotated section 49-6-2206(b)(2)(A) provides as follows:
A teacher or principal in a public school of this state shall not use or permit to be used in
the person’s school, whether as a supplement to the LEA’s or school’s adopted textbooks
and instructional materials or otherwise, textbooks or instructional materials created to
align exclusively with the Common Core State Standards or that are marketed as Common
Core textbooks or materials.
4
Tennessee Code Annotated section 49-6-2202(b)(5) provides as follows:
The commission shall not publish a list of, or recommend that the state board of education
approve for use in the public schools of this state, textbooks or instructional materials
created to align exclusively with the Common Core State Standards or that are marketed
as Common Core textbooks or materials. The state board shall not approve for use in the
public schools of this state textbooks or instructional materials created to align exclusively
with the Common Core State Standards or that are marketed as Common Core textbooks
or materials.
4
reading skills in response to the curriculum. The Plaintiffs’ Amended Complaint addresses
how particular texts and materials impacted particular children and caused these injuries.
Within a day of filing their extensive Amended Complaint in September 2022, the
Plaintiffs non-suited their claims against Commissioner Schwinn. Later that same month,
the remaining Defendants, which included Messrs. Golden and Allen and the School
Board, filed a motion to dismiss the Plaintiffs’ suit. The Defendants advanced multiple
arguments in support of dismissal. One, the Defendants argued that the Plaintiffs lacked
standing to bring suit; therefore, the case was non-justiciable. Two, the Defendants argued
that the Plaintiffs’ suit raised a political question; therefore, the case was non-justiciable.
Three, with regard to the Prohibited Concepts Claim, the Defendants argued that the
Plaintiffs were required to exhaust administrative remedies and that they had failed to do
so. Therefore, they argued, the Prohibited Concepts Claim was non-justiciable. Four, the
Defendants argued that neither Tennessee Code Annotated section 49-6-1019 nor
Tennessee Code Annotated section 49-6-2206(b)(2)(A), which were the statutory bases for
the Plaintiffs’ Prohibited Concepts Claim and Common Core Claim respectively, provide
a private right of action. Therefore, the Plaintiffs could not maintain their suit which was
predicated upon a violation of these statutes by the School Board. Five, the Defendants
argued that the Plaintiffs’ Constitutional Claim failed because no constitutional right had
been violated. Six, the Defendants noted that the Approval List Claim only applied to
Commissioner Schwinn and that she had been voluntarily dismissed by the Plaintiffs from
the suit. Because the Approval List Claim was neither stated against nor applicable to the
remaining Defendants, they sought dismissal. Seven, the Defendants argued that the
naming of Messrs. Golden and Allen in their official capacities was redundant because suit
was already being brought against the School Board. Accordingly, the Defendants argued
that any claims against Messrs. Golden and Allen should be dismissed.
In November 2022, the Plaintiffs non-suited their claims against Messrs. Golden
and Allen. This left the School Board as the only remaining defendant. The Plaintiffs also
filed a response in opposition to the Motion to Dismiss. Therein, they did not dispute that
the Approval List Claim was only filed against Commissioner Schwinn and had been
effectively dismissed as a result of non-suiting their claim against Commissioner Schwinn.
The Plaintiffs did, however, argue in support of all of their remaining claims against the
School Board including their Prohibited Topics Claim, Constitutional Claim, and Common
Core Claim.
In December 2022, the trial court issued its Memorandum and Opinion, granting the
School Board’s motion to dismiss based upon the Plaintiffs’ case being non-justiciable. In
reaching this conclusion, the trial court addressed two justiciability issues. One, the trial
court concluded that the Plaintiffs lacked standing. Specifically, the trial court determined
that the Parents lacked standing because their children had not suffered any injuries distinct
from any other child in the Williamson County public schools. Because its members, the
Parents, lacked standing, the trial court concluded that Parents’ Choice did not have
5
organizational standing. Two, the trial court also addressed exhaustion of administrative
remedies. The trial court noted that the School Board had argued in relation to the
Plaintiffs’ Prohibited Concepts Claim that the Plaintiffs were required to exhaust their
administrative remedies. The trial court agreed with the argument. While only
substantively addressing the Prohibited Concepts Claim, the trial court, however, stated in
its decision that “[b]ecause these procedures were not exhausted prior to filing suit, as an
alternate ruling, the Court also DISMISSES the case on this ground.”
The Plaintiffs appealed the dismissal of their suit. They reference three of their
claims in their briefing on appeal, their Prohibited Concepts Claim, the Common Core
Claim, and the Constitutional Claim. They do not address their Approval List Claim, which
has been waived. On appeal, the Plaintiffs argue that their case is justiciable, and the trial
court erred in concluding to the contrary. The Plaintiffs argue that the Parents have standing
to maintain an action on behalf of their children, who they contend suffered distinct and
palpable injuries. Because the Parents have standing, the Plaintiffs contend that Parents’
Choice has organizational standing. The Plaintiffs also argue that the exhaustion
requirement is not mandatory as to the Parents and that requiring them to exhaust would
be futile. In addition to defending the bases of the trial court’s grant of dismissal, standing
and exhaustion of administrative remedies, the School Board also renews its argument on
appeal as to three issues that were not ruled upon by the trial court. One, the School Board
argues that the case is non-justiciable under the political question doctrine. Two, the School
Board asserts that there is no private right of action to pursue either the Plaintiffs’
Prohibited Concepts Claim or Common Core Claim. Three, addressing the Plaintiffs’
Constitutional Claim, the School Board contends that the Plaintiffs have not actually
asserted a claim for a violation of a constitutional right.
II.
Before turning our attention to the Plaintiffs’ Prohibited Concepts Claim and
Common Core Claim, which are the focus of the appeal in this case, we briefly touch upon
the Plaintiffs’ Constitutional Claim. The Plaintiffs alleged in their Amended Complaint
that the School Board’s adoption and use of the Wit & Wisdom curriculum violated the
Fourteenth Amendment of the United States Constitution. The School Board argues that
the Plaintiffs have not actually asserted a claim for a violation of constitutional rights. The
Plaintiffs address this issue in their briefing on appeal. In doing so, however, the Plaintiffs’
arguments appear to only actually advance a contention that the School Board violated
statutory provisions under the Tennessee Code, rather than alleging an actual constitutional
violation by the School Board.
Attempting to understand the Plaintiffs’ Due Process claim and their contention that
the trial court’s dismissal thereof was in error, members of the court asked multiple
questions during the oral argument of this case in November 2023 related to the
Constitutional Claim in the Plaintiffs’ Amended Complaint. In responding to these
6
questions, the Plaintiffs’ waived their Due Process Claim.5 Accordingly, we treat the
Constitutional Claim in the Plaintiffs’ Amended Complaint as having been waived.
III.
Turning to the Plaintiffs’ remaining claims, the Prohibited Concepts Claim and
Common Core Claim, the parties contest justiciability in their briefing, dueling over
standing, the political question doctrine, and exhaustion of administrative remedies. See
Norma Faye Pyles Lynch Fam. Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 203 (Tenn.
2009) (listing Tennessee’s justiciability doctrines as “(1) the prohibition against advisory
opinions, (2) standing, (3) ripeness, (4) mootness, (5) the political question doctrine, and
(6) exhaustion of administrative remedies” (footnotes omitted)); see also West v. Schofield,
468 S.W.3d 482, 490 (Tenn. 2015) (setting forth the same list).
Addressing the basis under the Tennessee Constitution for justiciability limitations
on the authority of state courts, the Tennessee Supreme Court has observed the following:
The Constitution of Tennessee does not expressly define the powers of the
Legislative, Executive, or Judicial Branches of government. Richardson v.
Young, 122 Tenn. 471, 493, 125 S.W. 664, 668 (1909). Thus, while Article
III, Section 2 of the United States Constitution confines the jurisdiction of
the federal courts to “cases” and “controversies,” the Constitution of
Tennessee contains no such direct, express limitation on Tennessee’s courts’
5
Judge’s Question: I am trying to understand the separation between your statutory argument and
your Due Process argument. If I am following your Due Process argument correctly, . . . you are not
claiming a right to be able to control what the school system teaches independently of the statute. You are
saying the statute is what imposes the limitation. If that is your Due Process argument though, how does
the Due Process argument exist separately from the statutory argument? I mean isn’t it just it is a Due
Process violation because it violates the statute? That seems to be what you are asserting. I am struggling
to follow.
Counsel: Basically, what we are asking is that the court enforce the laws that our legislature has made which
the laws have been made to say you cannot teach certain concepts.
Judge’s Question: So this is about vindicating the statute?
Counsel: Yes. We are saying -- we are simply asking for the court to enforce the statute. [Counsel then
discussed the statutory measures that the Plaintiffs argue were violated]. All we are asking is that these
laws be followed, and they are not. And so that is where I would say we are going with this lawsuit.
Judge’s Question: You are not asserting, though, an independent substantive due process violation?
Counsel: No.
7
exercise of their judicial power. U.S. Const. art. III, § 2; Tenn. Const. art. I,
§§ 1-2; Miller v. Miller, 149 Tenn. 463, 484, 261 S.W. 965, 971 (1924)
(noting that the Constitution of Tennessee does not contain limitations similar
to those in Article III, Section 2).
Despite the absence of express constitutional limitations on the exercise of
their judicial power, Tennessee’s courts have, since the earliest days of
statehood, recognized and followed self-imposed rules to promote judicial
restraint and to provide criteria for determining whether the courts should
hear and decide a particular case. These rules, commonly referred to as
justiciability doctrines, are based on the judiciary’s understanding of the
intrinsic role of judicial power, as well as its respect for the separation of
powers doctrine in Article II, Sections 1 and 2 of the Constitution of
Tennessee.
Tennessee’s courts believed that “the province of a court is to decide, not
advise, and to settle rights, not to give abstract opinions.” State v. Wilson, 70
Tenn. 204, 210 (1879); see also Gilreath v. Gilliland, 95 Tenn. 383, 385-86,
32 S.W. 250, 251 (1895); Prichitt v. Kirkman, 2 Tenn. Ch. 390, 393 (1875).
Accordingly, they limited their role to deciding “legal controversies.” White
v. Kelton, 144 Tenn. 327, 335, 232 S.W. 668, 670 (1921). A proceeding
qualifies as a “legal controversy” when the disputed issue is real and existing,
see State ex rel. Lewis v. State, 208 Tenn. 534, 536-37, 347 S.W.2d 47, 48
(1961), and not theoretical or abstract, State v. Brown & Williamson Tobacco
Corp., 18 S.W.3d 186, 192 (Tenn. 2000); Miller v. Miller, 149 Tenn. at 474,
261 S.W. at 968; State ex rel. Lewis v. State, 208 Tenn. at 538, 347 S.W.2d at
48-49, and when the dispute is between parties with real and adverse
interests. Memphis Publ’g Co. v. City of Memphis, 513 S.W.2d 511, 512
(Tenn. 1974).
Norma Faye Pyles Lynch Fam. Purpose LLC, 301 S.W.3d at 202-03.
Tennessee’s justiciability doctrines have borrowed from, but are not controlled by,
federal precedent. “Despite the differences between the state and federal constitutions,
Tennessee courts have consistently found federal precedents to be helpful in addressing
issues of justiciability and have adopted many of the significant components of federal
jurisprudence.” Norma Faye Pyles Lynch Fam. Purpose LLC, 301 S.W.3d at 203 n.3.
However,
[w]hile federal precedent has been helpful in addressing questions of
justiciability, Tennessee courts are not bound by this precedent, and the
entirety of the doctrines as applied by federal courts has never been adopted
wholesale into Tennessee law root and branch. To the contrary, the Tennessee
8
Supreme Court has, more than once, interpreted the Tennessee Constitution
in a manner that varies from the federal courts’ interpretation of justiciability
doctrines under Article III of the United States Constitution.
Rutan-Ram v. Tennessee Dep’t of Children’s Servs., No. M-2022-00998-COA-R3-CV,
2023 WL 5441029, at *6 n.6 (Tenn. Ct. App. Aug. 24, 2023). With this understanding in
mind, we turn our attention below to each of the justiciability doctrines at issue in the
present case, addressing standing, the political question doctrine, and the exhaustion of
administrative remedies.
A.
The primary basis for the trial court’s dismissal of the Plaintiffs’ case is the Parents’
lack of standing, which it concluded rendered the case non-justiciable. As a result of its
conclusion that the Parents did not have standing, the trial court also determined that
Parents’ Choice lacked organizational standing because its members, the Parents, lacked
standing. The trial court explained its conclusions regarding standing as follows:
In the present case, Parent Plaintiffs are not able to show a distinct and
palpable injury. Plaintiffs have no distinct injury different from any other
Williamson County School parent, and they cannot show their children have
any distinct injury different from any other Williamson County School
student. The same curriculum is taught to all students in the same grade level.
The injury is not particularized to the level of a distinct injury with respect
to standing with respect to Parent Plaintiffs. The same is true for Parent[s’]
Choice. Parent[s’] Choice would have organizational standing if its members
were deemed to have standing, but Parent[s’] Choice would not have
standing on its own. Because Parent Plaintiffs do not have standing,
Parent[s’] Choice also does not have standing. Accordingly, because none of
Plaintiffs have standing, this case is to be DISMISSED.
The Plaintiffs contend the trial court erred. They assert the Parents’ children have
suffered distinct and palpable injuries and that therefore, the Parents have standing to
maintain suit on behalf of their children. Furthermore, because the trial court’s reason for
finding no organizational standing for Parents’ Choice was predicated upon the Parents’
lack of standing, the Plaintiffs assert that the trial court also erred with regard to finding no
organizational standing for Parents’ Choice. The School Board argues in support of the
trial court’s conclusions as to the lack of standing as to both the Parents and Parents’
Choice.
Tennessee appellate courts review a trial court’s ruling on a motion to dismiss for
lack of standing “de novo with no presumption of correctness.” Metro. Gov’t of Nashville
& Davidson Cnty. v. Tenn. Dep’t of Educ., 645 S.W.3d 141, 147 (Tenn. 2022). When
9
reviewing a ruling upon a motion to dismiss, Tennessee courts are generally “required to
take the relevant and material factual allegations in the complaint as true.” Lind v. Beaman
Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011). Furthermore, courts are to liberally
construe the complaint in favor of the plaintiff. Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn.
2004). This framework “is equally true with respect to factual allegations regarding
standing.” Metro. Gov’t of Nashville & Davidson Cnty. v. Tenn. Dep’t of Educ., 645 S.W.3d
at 147-48. Additionally, the Tennessee Supreme Court has indicated that when considering
a challenge based upon standing that “[a]t the pleading stage, general factual allegations of
injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we
presum[e] that general allegations embrace those specific facts that are necessary to support
the claim.” Id. at 148 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
For conventional constitutional standing in Tennessee courts, a plaintiff must
establish three elements:
1) a distinct and palpable injury; that is, an injury that is not conjectural,
hypothetical, or predicated upon an interest that a litigant shares in common
with the general public; 2) a causal connection between the alleged injury
and the challenged conduct; and 3) the injury must be capable of being
redressed by a favorable decision of the court.
Fisher v. Hargett, 604 S.W.3d 381, 396 (Tenn. 2020).6 The question of whether the Parents
have standing in the present case turns upon the adequacy of the allegation of injury to their
children. There is no question in the present case that if the injury is sufficient, the
allegations of causation and redressability connected therewith are also sufficient.
To determine whether the Plaintiffs have standing to bring this case, we must
examine the particular allegations of their complaint and evaluate whether they are entitled
to adjudicate their claims. Id.; Howe v. Haslam, No. M2013-01790-COA-R3-CV, 2014
WL 5698877, at *6 (Tenn. Ct. App. Nov. 4, 2014) (citing Petty v. Daimler/Chrysler Corp.,
91 S.W.3d 765, 768 (Tenn. Ct. App. 2002)). The question of whether a party has standing
should not be confused with the merits of the claim; accordingly, a weak claim does not
equate to a lack of standing. Metro. Gov’t of Nashville & Davidson Cnty. v. Tenn. Dep’t of
Educ., 645 S.W.3d at 148-49. Tennessee courts’ standing analysis is instead directed
towards determining “‘whether a party has a sufficiently personal stake in a matter at issue
to warrant a judicial resolution of the dispute,’” barring those whose rights or interests have
not been affected from bringing suit. Metro. Gov’t of Nashville v. Bd. of Zoning Appeals
6
The Tennessee Constitution confers significantly greater leeway to taxpayers to maintain an action
in Tennessee state courts based upon challenging illegal expenditures of governmental funds than is
permitted to taxpayers seeking to invoke the jurisdiction of the federal courts under the United Constitution.
See generally Rutan-Ram, 2023 WL at *17-21. The Plaintiffs in the present case do not assert that they
followed the proper procedure for invoking taxpayer standing or that they satisfy the standards thereof.
10
of Nashville, 477 S.W.3d 750, 755 (Tenn. 2015) (quoting State v. Harrison, 270 S.W.3d 21,
27-28 (Tenn. 2008)). The stage of the proceedings impacts the extent of the burden
imposed upon a plaintiff to establish injury, causation, and redressability. Metro. Gov’t of
Nashville & Davidson Cnty. v. Tenn. Dep’t of Educ., 645 S.W.3d at 149. Where standing
is raised via a motion to dismiss, as in the present case, the plaintiffs’ “factual allegations
are presumed to be true and are construed in their favor.” Id. Furthermore, the Tennessee
Supreme Court has rejected the heightened federal plausibility pleading standard of
Twombly7 and Iqbal,8 preserving the requirement that parties need only satisfy Tennessee’s
traditional liberal notice pleading standard. Webb v. Nashville Area Habitat for Human.,
Inc., 346 S.W.3d 422, 426 (Tenn. 2011).
As stated by the Tennessee Supreme Court, “[i]n general, courts are precluded ‘from
adjudicating an action at the instance of one whose rights have not been invaded or
infringed.’” Fannon v. City of LaFollette, 329 S.W.3d 418, 424 (Tenn. 2010) (quoting Am.
C.L. Union of Tenn.v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006)). Furthermore,
“[s]tanding . . . may not be predicated upon an injury to an interest that the plaintiff shares
in common with all other citizens.” ACLU of Tenn. v. Darnell, 195 S.W.3d at 620. Such
injuries, termed generalized grievances, are those that are “plainly undifferentiated and
common to all members of the public.” United States v. Richardson, 418 U.S. 166, 176-
77 (1974) (citation omitted); see also Rutan-Ram, 2023 WL 5441029, at *12 (describing a
generalized grievance as an injury where there is no separation between a plaintiff and the
public at large — where the injury is common among all citizens).
Here, the trial court erred in its application of the generalized grievance concept in
two important respects. One, the trial court errantly viewed an injury being suffered by a
large number of persons as necessarily meaning that any suit in connection therewith would
be a claim based upon a generalized grievance. Two, the trial court failed to consider the
Parents’ specific allegations of injuries sustained by their children and whether those
allegations advanced distinct and palpable injuries sufficient to satisfy the constitutional
injury requirements to maintain standing.
As to the first, the trial court’s ruling appears to be grounded in a conclusion that an
injury suffered by a large number of persons renders a suit in connection therewith a non-
justiciable suit based upon a generalized grievance. However, “[t]he fact that an injury
may be suffered by a large number of people does not of itself make that injury a
nonjusticiable generalized grievance. The victims’ injuries from a mass tort, for example,
are widely shared, to be sure, but each individual suffers a particularized harm.” Spokeo,
Inc. v. Robins, 578 U.S. 330, 339 n.7 (2016). Simply stated, “an injury shared by a large
number of people is nonetheless an injury.” Ctr. for Auto Safety v. Nat’l Highway Traffic
Safety Admin., 793 F.2d 1322, 1324 (D.C. Cir. 1986). A contrary understanding is in error,
7
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
8
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
11
for “[t]o deny standing to persons who are in fact injured simply because many others are
also injured, would mean that the most injurious and widespread . . . actions could be
questioned by nobody.” United States v. Students Challenging Regul. Agency Procs.
(SCRAP), 412 U.S. 669, 688 (1973). To the extent that the trial court concluded that the
parents could not have standing because all Williamson County children were injured by
the School Board’s actions, which seems to have been the central basis of its decision, it
misapplied the generalized grievance limitation on standing.
This does not, however, end our inquiry. The proper question is not whether many
other Williamson County children were injured but instead whether the Parents alleged
specific injuries to their children that are sufficient to meet the constitutional demands of
constituting an injury for purposes of standing. As noted above, to satisfy the injury
requirement for conventional standing under the Tennessee Constitution, the plaintiff must
plead “a distinct and palpable injury; that is, an injury that is not conjectural, hypothetical,
or predicated upon an interest that a litigant shares in common with the general public.”
Fisher, 604 S.W.3d at 396. By negating the possibility of such an injury to the Plaintiffs’
children based upon the trial court’s conclusion that other Williamson County students also
had been injured, the trial court did not grapple with the particular allegations of injuries
by the Plaintiffs as to their respective children.
The Amended Complaint contains allegations related to five children. C.L. is the
minor child of J.P.L. and P.L. A.B. and B.B. are the minor children of Jennifer Doe. C.D.
and D.D. are the minor children of Katherine Roe. Before delving more deeply into this
matter, we note that C.L. is differently situated than the other four children, who were and
are students in the Williamson County public schools. C.L.’s parents withdrew him from
the Williamson County School System prior to the first grade and placed him in a private
school where he has evidently adjusted quite well. We have been cited to no provisions of
the Amended Complaint that indicate that C.L.’s parents intend to return C.L. to the
County’s public schools, nor are we aware of any such provisions in the Amended
Complaint.9 In other words, C.L. is not currently a student in the Williamson County public
schools, and the Plaintiffs have not in their Amended Complaint asserted any intent or
desire to return him to the Williamson County public schools should the County’s alleged
illegalities be addressed.
With regard to the justiciability of claims on behalf of C.L., this is problematic for
the Plaintiffs. The Plaintiffs have not crafted an Amended Complaint that seeks damages
for past injuries but instead they are focused on prospective relief in the form of a
declaratory judgment and injunctive relief. Given the facts as pled by the Plaintiffs, we
9
The Plaintiffs’ brief on appeal states that C.L., “but for the unlawful actions of the Defendants,
would have continued his education as a first grade student in the Williamson County school system,” citing
two paragraphs of the Amended Complaint. Assuming those two paragraphs can carry the weight of this
assertion, which is less than certain, there is still no assertion in the Amended Complaint that his parents
plan to return C.L. to Williamson County public schools.
12
fail to discern how the Plaintiffs’ prospective-focused judicial relief claims on behalf of
C.L. are justiciable. Pursuant to the Amended Complaint, C.L. is not a public-school
student in Williamson County, and there is no indication in the Amended Complaint of an
intent or desire to return to Williamson County public schools should the alleged illegality
be removed. This seemingly places C.L. in the generalized grievance category, seeking to
require the School Board to follow the cited laws while not actually being affected by that
outcome. The Plaintiffs do not grapple with the question of how C.L.’s status as a private
school student who has not expressed a desire or intent to return to Williamson County
public school affects the parties’ standing to bring claims on his behalf. With the trial court
having found claims on behalf of C.L. to be non-justiciable, the failure to address this
significant complication is problematic for the Plaintiffs in seeking to resuscitate claims on
behalf of C.L. against the School Board. See Sneed v. Bd. of Prof’l Responsibility of
Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or
appellate, to research or construct a litigant’s case or arguments for him or her, and where
a party fails to develop an argument in support of his or her contention or merely constructs
a skeletal argument, the issue is waived.”). Accordingly, we find no error in the trial court’s
conclusion that claims on behalf of C.L. are non-justiciable or with its dismissal of those
claims.
Allegations related to the other four children A.B., B.B., C.D., and D.D. do not
present the same complications as C.L. They were and are students in Williamson County
public schools. We turn next to considering whether their alleged injuries satisfy the
constitutional requirements for an injury for purposes of standing under the Tennessee
Constitution.
Here, the Plaintiffs alleged that each of these children was taught, in violation of
Tennessee law, using a Common Core curriculum and a curriculum that taught multiple
prohibited concepts. The Plaintiffs in their Amended Complaint addressed both the alleged
impact of the curriculum generally and the impact of particular prohibited concepts
allegedly being taught. The Plaintiffs’ Amended Complaint connected these violations
with injuries allegedly suffered by the individual children A.B., B.B., C.D., and D.D. The
Plaintiffs alleged that, as result of the School Board’s violation of Tennessee law, their
children experienced psychological harm including anxiety, stress, and race-based guilt.
The Parents also assert that they are trying to imbue their children with certain values which
allegedly are being undermined by the use of a Common Core curriculum and the teaching
of prohibited concepts in violation of Tennessee law. Additionally, the parents assert that
their children’s educational development, for example advancement in terms of reading
ability, is being harmed by the use of a Common Core curriculum and inclusion of
prohibited concepts in violation of Tennessee law. In other words, the Plaintiffs here are
not merely alleging that the School Board’s curriculum decisions were unwise or even
illegal, but instead are alleging that their children experienced actual psychologically harm,
had their values undermined, and had their educational advancement hampered by the
School Board’s use of a Common Core curriculum and by teaching prohibited concepts.
13
These alleged injuries are, according to the Plaintiffs’ Amended Complaint, directly related
to the alleged illegalities through a curriculum that allegedly teaches prohibited concepts
in violation of section 49-6-1019 and adopts a Common Core curriculum in violation of
section 49-6-2206(b)(2)(A).
The injuries alleged by the Plaintiffs on behalf of their children also appear to be
akin to the type of harm that the General Assembly was seeking to prevent through the
adoption of these statutory prohibitions. For example, Tennessee Code Annotated section
49-6-1019(a)(6) prohibits LEAs from including in their curriculum the concept that “[a]n
individual should feel discomfort, guilt, anguish, or another form of psychological distress
solely because of the individual’s race or sex.” The Plaintiffs allege the School Board
violated this limitation and in doing so has caused their children to experience precisely
such race-based guilt.
Here, the individual plaintiffs pled particular facts asserting their children’s injuries
– specifically how certain aspects of the Wit & Wisdom curriculum and the teaching of
prohibited concepts injured their children through a combination of psychological harm,
undermining the values taught within their family, and hampering their educational
development. Under the Amended Complaint, these were not hypothetical or theoretical
injuries, but instead actual, concrete, particularized injuries that have been suffered. That
there may be many other children who experienced similar harms does not make the
alleged injury any less of a personal injury as to A.B., B.B., C.D., and D.D.
In other words, the Plaintiffs are not upset about the violations of Tennessee law in
which the children share a generalized grievance with all citizens who may wish to see the
School Board adhere to the law. The Parents are instead alleging that their children are
personally and actually being directly harmed by the violations of Tennessee law. In the
context of the statutory violations alleged, these are not generalized grievances but distinct
and palpable injuries. The trial court did not address any of these allegations. Having
considered the injuries asserted in the Amended Complaint, we conclude that the trial court
erred in determining that the Parents lacked standing due to a lack of distinct and palpable
injuries.
We note that our determination in this case is intertwined with the stage of the
proceedings – that is, the context of reviewing the trial court’s grant of a motion to dismiss
based upon lack of standing. We take no view on the question of whether the Plaintiffs’
children actually suffered any such injuries. The question before us is not whether the
Plaintiffs’ children or any other children were actually injured but instead whether,
presuming the allegations of the Amended Complaint to be true and construing the
allegations in favor of the Plaintiffs, they have adequately alleged injuries sufficient to
satisfy the minimum constitutional requirements for an injury for purposes of conventional
standing. See Metro. Gov’t of Nashville & Davidson Cnty. v. Tenn. Dep’t of Educ, 645
S.W.3d at 149. Nothing in our ruling prevents the School Board from raising a challenge
14
to Plaintiffs’ standing at a later stage of the proceedings based on the further development
of facts.
As for organizational standing, the trial court’s basis for dismissing Parents’ Choice
for lack of organizational standing was predicated upon the lack of standing of its members,
the Parents. The trial court’s ruling as to organizational standing followed quite reasonably
from its analysis of the Parents’ standing. See generally ACLU of Tenn., 195 S.W.3d at
626 (noting that to establish organizational standing, an organization must show “(1) its
members would otherwise have standing to sue in their own right; (2) the interests it seeks
to protect are germane to the organization’s purpose; and (3) neither the claim asserted, nor
the relief requested, requires the participation of individual members in the lawsuit”).
However, because the Parent members do have standing, the trial court’s basis for finding
lack of organizational standing evaporates. Accordingly, we conclude that the trial court
erred in determining that Parents’ Choice lacked organizational standing.
B.
The School Board also contends that the Plaintiffs’ case is non-justiciable under the
political question doctrine. Having determined the Plaintiffs’ case to be non-justiciable due
to lack of standing, the trial court did not address the School Board’s political question
argument. In opposition to the School Board’s position, which it renewed on appeal before
this court, the Plaintiffs argue that the political question doctrine is inapplicable to the
present case.
As noted above, the political question doctrine limitation on judicial authority in
Tennessee is a product of the separation of powers provided for by the Tennessee
Constitution. See Bredesen v. Tenn. Jud. Selection Comm’n, 214 S.W.3d 419, 434 (Tenn.
2007). In delineating the broad strokes of what constitutes a political question, Tennessee
courts have embraced the federal formulation. Id. at 435. The seminal federal case
examining the political question doctrine is Baker v. Carr, 369 U.S 186 (1962).10 The
Supreme Court in Baker v. Carr “canvased the field of ‘political question cases to infer
from them the analytical threads that make up the political question doctrine’ . . . [and]
10
See, e.g., El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010)
(characterizing Baker v. Carr as “the seminal case” of the political question doctrine); Greenham Women
Against Cruise Missiles v. Reagan, 591 F. Supp. 1332, 1335 (S.D.N.Y. 1984), aff'd, 755 F.2d 34 (2d Cir.
1985) (“The most authoritative and commonly cited formulation of the political question doctrine is that of
Justice Brennan in the seminal case of Baker v. Carr.”); Kan. Bldg. Indus. Workers Comp. Fund v. State,
359 P.3d 33, 42 (Kan. 2015) (“The seminal United States Supreme Court case on the political question
doctrine is Baker v. Carr.”); Pa. Sch. Boards Ass’n, Inc. v. Commonwealth Ass’n of Sch. Adm’rs, Teamsters
Loc. 502, 805 A.2d 476, 485 (Pa. 2002) (describing Baker v. Carr as “the seminal case” of the political
question doctrine).
15
[f]rom this review of the existing political question jurisprudence”11 ultimately
“synthesized the cases” into the six strands of the political question doctrine.12
In addressing the political question doctrine under the Tennessee Constitution in
relation to separation of powers principles, this court borrowed the handiwork of the United
States Supreme Court in Baker v. Carr, embracing its six strands:
Prominent on the surface of any case held to involve a political question is
found [1] a textually demonstrable constitutional commitment of the issue to
a coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or [5] an unusual need for unquestioning adherence to a political
decision already made; or [6] the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.
Mayhew v. Wilder, 46 S.W.3d 760, 773 (Tenn. Ct. App. 2001) (quoting Baker, 369 U.S. at
217). The Tennessee Supreme Court subsequently approved of this court’s formulation
and embraced the same six strands. See Bredesen, 214 S.W.3d at 435.13
The School Board’s argument in the present case presses upon the second and third
strands of the political question doctrine, with its primary focus on the third. The argument
advanced is, essentially, that the General Assembly has afforded to local boards of
education and the Tennessee Department of Education broad discretion and authority to
make determinations regarding instruction in Tennessee’s schools. Accordingly, the
Defendant argues Tennessee courts cannot decide whether the statutes adopted by the
General Assembly have been violated without making their own policy determinations. In
other words, because the policy-making discretion afforded to the local school boards and
Tennessee Department of Education is extremely broad, there is no role for judicial review.
11
Michael Teter, Reinvigorating the Judiciary’s Role in Resolving Interbranch Disputes, 2014 Utah
L. Rev. 897, 902 (2014).
12
Heather P. Scribner, A Fundamental Misconception of Separation of Powers: Boumediene v.
Bush, 14 Tex. Rev. L. & Pol. 90, 121 (2009).
13
Tennessee’s adoption of the same six strands as embraced by federal courts does not mean that
the application of these categories will match that of federal courts. Federal authority remains persuasive
rather than mandatory and what constitutes a political question in Tennessee state courts is ultimately a
question of the interpretation of the Tennessee Constitution.
16
The School Board’s argument is ultimately more supportive of a deferential judicial
approach to reviewing challenges to decisions reached by local school boards and the
Department of Education14 than it is to warranting a total judicial abdication under the
political question doctrine. The Plaintiffs’ claims are predicated upon claims of
transgression of two statutes in which the General Assembly has addressed what may be
taught in Tennessee public schools. The Plaintiffs allege that the School Board violated
Tennessee Code Annotated section 49-6-1019, which prohibits teaching of certain
enumerated restricted concepts (the Prohibited Concepts Claim), and Tennessee Code
Annotated section 49-6-2206(b)(2)(A), which prohibits use of Common Core textbooks
and instructional materials and those marketed as Common Core (the Common Core
Claim). In alleging that these statutes have been violated, the Plaintiffs are not inherently
asking Tennessee courts to make a policy determination as to the substance of what should
and should not be taught in Tennessee public school classrooms. The Tennessee General
Assembly has already made that determination. The courts are instead being asked to
determine whether the School Board transgressed the statutorily imposed prohibitions
crafted by the General Assembly. As for discretion afforded, assuming for purposes of
argument that the School Board is correct insofar as the zone of discretion afforded to local
school boards and the Department of Education is as wide as an ocean, there are still shores
where the water comes to an end, and figuring out where the metaphorical ocean and shore
meet presents a question of statutory interpretation.
More than a century ago, addressing separation of powers, the Tennessee Supreme
Court observed that “[t]heoretically, the legislative power is the authority to make, order,
and repeal, the executive . . . [is the power to] administer and enforce, and the judicial . . .
[is the power to] interpret and apply, laws.” Richardson v. Young, 125 S.W. 664, 668 (Tenn.
1910). State courts have repeatedly rejected arguments invoking the political question
doctrine in a manner that interferes with the judiciary’s statutory interpretation role. See,
e.g., Moss v. Bd. of Cnty. Comm’rs for Boulder Cnty., 411 P.3d 918, 922 (Colo Ct. App.
2015) (citation omitted) (“Interpreting those provisions in no way infringes on the powers
and duties of other branches of government. . . . Indeed, statutory interpretation is a
question of law that is traditionally within the role of the judiciary to resolve.”); Office of
Hawaiian Affairs. v. Kondo, 528 P.3d 243, 251 (Haw. 2023) (rejecting a contention the
political question doctrine rendered a matter non-justiciable because “[s]tatutory
interpretation is the judiciary’s forte, central to its mission” and a court engaging in
statutory interpretation “does not intrude on another governmental branch”); Bedke v.
Ellsworth, 480 P.3d 121, 130 (Idaho 2021) (rejecting an argument for application of the
political question doctrine, noting that “[i]nterpreting statutes is a fundamental
responsibility of the judiciary”); N.J. Election Law Enf't Comm’n v. DiVincenzo, 169 A.3d
1002, 1008 (N.J. App. Div. 2017) (“The question presented here is one of statutory
14
In this case, we are not deciding either that a degree of deference is due to such decision-making
or the extent to which deference may be due. That question is not before us in the present case; rather, our
reference here is that School Board’s argument is better addressed to seeking deferential review than it is
to establishing that this case presents a political question.
17
interpretation and does not implicate any of the criteria for a nonjusticiable controversy.”);
Creswick v. Univ. of S.C., 862 S.E.2d 706, 708 (S.C. 2021) (“Contrary to the Attorney
General’s position that this matter presents a political question, we hold this action involves
solely a question of statutory interpretation.”).
The United States Supreme Court has reached the same conclusions as state courts,
rejecting invocation of the political question doctrine in a manner that invades the role of
the courts in interpreting statutes. Addressing a case involving the Secretary of Commerce,
international agreements, Congressional legislation, foreign affairs with Japan, and
whaling, the United States Supreme Court declined to find the political question doctrine
to be applicable. See generally Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221
(1986). The Court explained its reasoning as follows:
[C]ourts have the authority to construe treaties and executive agreements,
and it goes without saying that interpreting congressional legislation is a
recurring and accepted task for the federal courts. It is also evident that the
challenge to the Secretary’s decision not to certify Japan for harvesting
whales in excess of [International Whaling Commission] quotas presents a
purely legal question of statutory interpretation. The Court must first
determine the nature and scope of the duty imposed upon the Secretary by
the Amendments, a decision which calls for applying no more than the
traditional rules of statutory construction, and then applying this analysis to
the particular set of facts presented below. We are cognizant of the interplay
between these Amendments and the conduct of this Nation’s foreign
relations, and we recognize the premier role which both Congress and the
Executive play in this field. But under the Constitution, one of the
Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk
this responsibility merely because our decision may have significant political
overtones. We conclude, therefore, that the present cases present a justiciable
controversy . . . .
Id. at 230.
Similarly, in Zivotofsky v. Clinton, the United States Supreme Court rejected the
argument that a plaintiff’s suit to vindicate a “statutory right” created by Congress, “to
choose to have Israel recorded on his passport as his place of birth,” instead of simply
Jerusalem, presented a nonjusticiable political question. See Zivotofsky ex rel. Zivotofsky
v. Clinton, 566 U.S. 189, 195 (2012). The Supreme Court stated:
The existence of a statutory right, however, is certainly relevant to the
Judiciary’s power to decide Zivotofsky’s claim. The federal courts are not
being asked to supplant a foreign policy decision of the political branches
with the courts’ own unmoored determination of what United States policy
18
toward Jerusalem should be. Instead, Zivotofsky requests that the courts
enforce a specific statutory right. To resolve his claim, the Judiciary must
decide if Zivotofsky’s interpretation of the statute is correct, and whether the
statute is constitutional. This is a familiar judicial exercise.
Id. at 196. The Supreme Court further explained:
Resolution of Zivotofsky’s claim demands careful examination of the
textual, structural, and historical evidence put forward by the parties
regarding the nature of the statute and of the passport and recognition powers.
This is what courts do. The political question doctrine poses no bar to
judicial review of this case.
Id. at 201.
We do not doubt that the interpretation of the statutory provisions that the Plaintiffs
assert were violated may present challenging questions of interpretation for Tennessee
courts, but the presence of a difficult question does not usher out the judiciary via the
political question doctrine. There is a qualitative difference between hard questions and
political questions. One involves metaphorically rolling up one’s sleeves and getting to
work as a court; the other involves abandoning the field because the state or federal
constitution requires the court to do so. Local boards of education and the Department of
Education may be entitled to deference, perhaps even to a significant degree,15 but the
political question doctrine does not provide for deference – it demands total abandonment.
There is a chasm between deference and abdication. However challenging the questions
raised may ultimately be, it is clear that there are some discernable lines. The Tennessee
Supreme Court has stated that the political question doctrine will render a case non-
justiciable only “in rare cases”; this is not one of them. See Bredesen, 214 S.W.3d at 434.
C.
As an alternative ground for dismissal, the trial court determined the Plaintiffs were
required to exhaust their administrative remedies and failed to do so. There is some
ambiguity in the trial court’s Memorandum and Opinion regarding this ground for
dismissal. The trial court stated that “[b]ecause these procedures were not exhausted prior
to filing suit, as an alternate ruling, the Court also DISMISSES the case on this ground.”
The School Board, however, did not seek dismissal of “the case” based upon failure to
exhaust administrative remedies. While the School Board sought dismissal of the
Plaintiffs’ Amended Complaint in its entirety on a number of grounds, the School Board
only pursued dismissal for failure to exhaust as to Prohibited Concepts Claims. As noted
15
As noted above, the question of whether deference should be afforded and if so to what degree
is not before the court in the present case.
19
above, the Plaintiffs’ Prohibited Concepts Claim asserts a violation of Tennessee Code
Annotated section 49-6-1019, which prohibits teaching of certain enumerated restricted
concepts, whereas the Plaintiffs’ Common Core Claim alleges a violation of Tennessee
Code Annotated section 49-6-2206(b)(2)(A), which prohibits use of Common Core
textbooks and instructional materials. In addressing the Plaintiffs’ failure to exhaust
administrative remedies in its briefing before the trial court, the School Board’s argument
was framed in connection with the Prohibited Concepts Claim, related solely to that claim,
and exclusively referenced that claim.16 In setting forth the School Board’s argument in
its Memorandum and Opinion, the trial court expressly noted that the School Board argued
that the Prohibited Concepts Claim “should be dismissed because the applicable statutory
and regulatory procedures have not yet been exhausted.” The trial court’s analysis
regarding failure to exhaust administrative remedies was also tied exclusively to that claim.
On appeal before this court, the School Board only argues in support of trial court’s
dismissal as to failure to exhaust remedies in relation to the Prohibited Concepts Claim.
The School Board does not separately argue that the Common Core Claim is subject to an
exhaustion of administrative remedies requirement or argue that the trial court’s order
dismissed the Common Core Claim. Accordingly, while the trial court’s Memorandum
and Order states that failure to exhaust was an alternative basis for dismissal of “the case,”
we understand the trial court to have only dismissed the Prohibited Concepts Claim upon
this basis and not the Common Core Claim.
Regarding the trial court’s dismissal of the Prohibited Concepts Claim due to failure
to exhaust administrative remedies, the Plaintiffs argue the trial court erred in dismissing
on this basis. The Plaintiffs do not either contest the existence of the relevant
administrative procedures or suggest that they availed themselves of those administrative
procedures. They concede on both accounts. Rather, they argue that pursuing the
administrative procedures is not mandatory and, in any event, would have been futile.
Therefore, the Plaintiffs assert that exhaustion of administrative remedies was not required
for their Prohibited Concepts Claim to be heard by a court. In other words, they contend
that they may advance this claim in court without first proceeding through the relevant
administrative process. The School Board disagrees. The School Board argues that the
trial court properly concluded that the Plaintiffs were required to exhaust their
administrative remedies and note the Plaintiffs’ concession that they failed to do so.
16
The section heading preceding the School Board’s argument before the trial court is expressly
tied to the Prohibited Concepts Claim, which matches the argument advanced in the section of the
School’s Board Memorandum in support its motion to dismiss. The heading stated “COUNT I OF THE
AMENDED COMPLAINT MUST BE DISMISSED BECAUSE THE APPLICABLE STATUTORY
AND REGULATORY PROCEDURES MUST BE EXHAUSTED BEFORE SEEKING RELIEF IN
COURT.” Count I set forth the Plaintiffs’ Prohibited Concepts Claim.
20
While distinct conceptually from the ripeness doctrine,17 the requirement of
exhaustion of administrative remedies functions as a form of procedural ripeness. Where
justiciability concerns of this variety are present, it is not that the parties cannot ever have
their case heard by a court; rather, it is that a party who has not exhausted her claims has
not yet followed the prerequisite that unlocks the door to her case being heard in court.
The Tennessee Supreme Court explained the rationale for requiring exhaustion of
administrative remedies as follows:
By discouraging premature judicial interference with agency processes, the
exhaustion doctrine serves several goals. First, it allows an administrative
agency to function efficiently and to correct its own errors. Second, it
“allows the agency to develop a more complete administrative record upon
which the court can make its review.” Third, the doctrine allows agencies to
take full advantage of their particular expertise in specialized fact-finding,
the interpretation of contested technical subject matter, and disputes over the
agency’s regulations.
Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 236 (Tenn. 2010).
There are important distinctions between exhaustion of administrative remedies
being mandatory as a matter of law and circumstances where exhaustion is required by a
court in the exercise of its discretion. The Tennessee Supreme Court has indicated that
“when exhaustion of administrative remedies is required by statute, the failure to do so will
deprive the court of subject matter jurisdiction.” Chattanooga-Hamilton Cnty. Hosp. Auth.
v. UnitedHealthcare Plan of the River Valley, Inc., 475 S.W.3d 746, 758 (Tenn. 2015); see
also Pickard v. Tenn. Water Quality Control Bd., 424 S.W.3d 511, 523 (Tenn. 2013) (“When
exhaustion is a clear statutory requirement, ‘exhaustion is an absolute prerequisite for
relief,’ and failure to exhaust administrative remedies will defeat a reviewing court’s
subject matter jurisdiction.”). Alternatively, in the absence of a legal mandate, “the
exhaustion of the administrative remedies doctrine is a matter of judicial discretion” and
subject to review under an abuse of discretion standard. Ready Mix, USA, LLC v. Jefferson
Cnty., 380 S.W.3d 52, 64 (Tenn. 2012).
In concluding that exhaustion is mandatory in the present case, the trial court drew
upon the Department of Education’s regulations that were promulgated with the express
“purpose . . . to effectuate T.C.A. § 49-6-1019.” Tenn. Comp. R. & Regs. 0520-12-04-.01.
17
“The central concern of the ripeness doctrine is whether the case involves uncertain or
contingent future events that may or may not occur as anticipated or, indeed, may not occur at all.” B & B
Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 848 (Tenn. 2010).
21
The trial court determined that, under these regulations, exhaustion of administrative
remedies is mandatory.
The Plaintiffs contend that the regulations are not mandatory upon parents of public
school students. We disagree. The regulations promulgated by the Department of
Education to effectuate Tennessee Code Annotated section 49-6-1019, the prohibited
concepts law, set out a specific and mandatory administrative procedure. Tenn. Comp. R.
& Regs. 0520-12-04-.05, entitled “Reporting and Investigating Prohibited Concepts,”
mandates that a complaint about violations of the law must be filed with the LEA or public
charter school in which the allegation(s) arose:
To file a complaint alleging the Prohibited Concepts are being or have been
included or promoted in a course of instruction, curriculum and instructional
program, or in supplemental instructional materials of an LEA or public
charter school, a complainant must file a complaint with the LEA or public
charter school in which the allegation(s) arose. An eligible complainant may,
but is not required to, use the complaint form provided by the LEA or charter
school, so long as the complaint contains the information required by Section
0520-12-04-.05(5).
Tenn. Comp. R. & Regs. 0520-12-04-.05(2) (emphasis added). An LEA is defined by
statute:
“Local education agency (LEA),” “school system,” “public school system,”
“local school system,” “school district,” or “local school district” means any
county school system, city school system, special school district, unified
school system, metropolitan school system or any other local public school
system or school district created or authorized by the general assembly.
Tenn. Code Ann. § 49-1-103(2); see also Tenn. Comp. R. & Regs. 0520-12-04-.02
(referring to Tennessee Code Annotated section 49-1-103 for the definition of LEA for
purposes of the regulation).
On appeal, the Plaintiffs argue this regulation is not mandatory as to parents but
instead only creates a mandatory procedure for an LEA if parents file a complaint. In
support of this contention, the Plaintiffs note that multiple provisions of the regulations
related to prohibited concepts impose mandatory duties upon the LEA and not parents.18
18
See, e.g., Tenn. Comp. R. & Regs. 0520-12-04-.05(6) (“Upon receipt of a complaint, the LEA or
public charter school shall determine whether it has the authority to investigate the complaint.” (emphasis
added)); Tenn. Comp. R. & Regs. 0520-12-04-.05(7) (“Within fifteen (15) calendar days of receiving the
complaint, the LEA or public charter shall send a letter to the complainant explaining whether it has
authority to investigate the complaint and will be initiating an investigation.” (emphasis added)); Tenn.
Comp. R. & Regs. 0520-12-04-.05(8) (“Within sixty (60) calendar days of receiving the complaint, the LEA
22
The multitude of mandatory requirements imposed on the LEA under the regulations does
not make the imposition of the filing requirements upon parents any less mandatory.
“Complainant” is defined in Section 0520-12-04-.02 as “a current student of the LEA . . .
in which the allegation(s) arose [or] a parent of a current student of the LEA . . . in which
the allegation(s) arose . . . .” And, it is complainants who “must file a complaint with the
LEA or public charter school in which the allegation(s) arose.” Tenn. Comp. R. & Regs.
0520-12-04-.05(2) (emphasis added).
We note that “administrative rules and regulations” have “the force and effect of law
in Tennessee.” Swift v. Campbell, 159 S.W.3d 565, 572 (Tenn. Ct. App. 2004). The
Plaintiffs have not challenged the administrative regulation. Their argument is limited to
the contention that the regulations are not mandatory upon parents seeking to file a
complaint regarding the teaching of prohibited concepts but instead are only mandatory
upon the LEA should parents file such a complaint. Regarding whether the regulations are
mandatory, we consider only the argument advanced by the Plaintiffs. See Sneed, 301
S.W.3d at 615 (noting “[i]t is not the role of the courts, trial or appellate, to research or
construct a litigant’s case or arguments for him or her . . .”). Addressing the argument
advanced by the Plaintiffs, we find no error in the trial court’s conclusion that the
Department of Education regulations render exhaustion of administrative remedies
mandatory for the Parents who are bringing complaints regarding the teaching of prohibited
concepts in violation of Tennessee Code Annotated Section 49-6-1019.
The Plaintiffs contend that even if the regulations are mandatory that, nevertheless,
an exception is applicable in the present case based upon futility. Tennessee courts have
recognized an exception to the requirement to exhaust administrative remedies based upon
futility. See, e.g., Bailey, 303 S.W.3d at 236; Freeman Indus., LLC v. Eastman Chem. Co.,
172 S.W.3d 512, 525-26 (Tenn. 2005); Cantrell v. Walker Die Casting, Inc., 121 S.W.3d
391, 396 n. 3 (Tenn. Ct. App. 2003). Unsurprisingly, for a party seeking to avoid having
to exhaust administrative remedies where they are mandatory by law, the bar to surmount
is high. The Tennessee Supreme Court has indicated that “[t]he standard for adjudging the
futility of resorting to the administrative remedies . . . is whether a clear and positive
indication of futility can be made. A plaintiff must show that it is certain that his claim will
or public charter school shall determine whether the allegation(s) in the complaint is substantiated.”
(emphasis added)); Tenn. Comp. R. & Regs. 0520-12-04-.05(9) (“The LEA or public charter school shall
issue a written determination stating whether the allegation(s) in the complaint is substantiated. The written
determination shall be communicated to the complainant and the individual alleged to have included or
promoted the Prohibited Concept.” (emphasis added)); Tenn. Comp. R. & Regs. 0520-12-04-.05(10) (“If
an alleged violation is substantiated, the LEA or public charter school shall take appropriate remedial action
to ensure that the Prohibited Concept(s) is no longer included in a course of instruction, curriculum and
instructional program, or supplemental instructional materials.” (emphasis added)); Tenn. Comp. R. &
Regs. 0520-12-04-.05(11) (“The LEA or public charter school shall maintain, for five (5) years, an
investigative file containing the complaint, the initiating letter, any interview notes, any electronic or
physical evidence obtained, any other notes maintained by the investigator, and a copy of the written
determination issued in the matter.” (emphasis added)).
23
be denied on appeal, not merely that he doubts . . . a different decision.” Bailey, 303 S.W.3d
at 236 (quoting Cantrell, 121 S.W.3d at 396 n.3) (emphasis added). Simply stated, “[t]he
futility exception is . . . quite restricted and has been applied only when resort to
administrative remedies is clearly useless.” Bailey, 303 S.W.3d at 236 (quoting Commc’ns
Workers of Am. v. AT & T, 40 F.3d 426, 432 (D.C. Cir. 1994)); see also Cantrell, 121 S.W.3d
at 396 n.3. The Tennessee Supreme Court has described the showing necessary for
demonstrating futility as an administrative process that is “pointless” and “a foregone
conclusion.” Bailey, 303 S.W.3d at 236.
The Plaintiffs raise four arguments which they place under the umbrella of futility.
One, they contend that the School Board holds a negative and antagonistic view of
complaints such as theirs. Two, they argue the administrative process is too lengthy. Three,
they point to challenges for parents in fully understanding what is being taught in their
children’s schools and being able to adequately demonstrate a violation in a complaint to
their LEA. Four, the Plaintiffs note because violations appear at each grade-level it could
be necessary for parents to file multiple complaints.
As for the first purported basis for futility, the Plaintiffs allege that various School
Board and Department of Education officials have publicly indicated their approval of the
Wit & Wisdom curriculum and have stated that the curriculum does not teach Critical Race
Theory, which is a contention advanced in the Plaintiffs’ Amended Complaint.
Additionally, the Plaintiffs allege that some other parents who have discussed concerns
with LEA officials have been “derided and laughed at” and given inadequate information
about the complaint process, and that some complaints lodged in the past with the LEA
have been downplayed or ignored. The Plaintiffs do not, however, suggest that they have
been deprived of access to the administrative process or that information is not publicly
available as to how to access the process. Furthermore, the Plaintiffs concede that the LEA
has made multiple changes in response to complaints from other parents. While the
Plaintiffs’ allegations may suggest an uphill path, they do not demonstrate a “pointless”
exercise or a “foregone conclusion.”
The Plaintiffs also argue that the administrative process is lengthy in support of their
assertion of futility. The Plaintiffs do not cite to any Tennessee case law wherein parties
have been relieved of exhaustion requirements on this basis, but instead cite only to Parks
v. Pavkovic, 536 F. Supp. 296 (N.D. Ill. 1982), a federal district court case from the
Northern District of Illinois. The present case, however, bears no resemblance to the
Plaintiffs’ cited authority. There, the court found administrative remedies inadequate
where the plaintiffs had “done everything possible to obtain speedy administrative review,
but [had] been unable to do so through no fault of their own. In fact, it [was] the defendants
who [were] at fault, because of their failure to decide plaintiffs’ administrative appeal
within the time specified by federal law.” Parks, 536 F. Supp. at 302-03. Here, the
Plaintiffs have not availed themselves of the administrative process only to be confronted
by governmental actors who are not adhering to legal requirements as to the timing of the
24
process set forth in regulations. To the contrary, the Plaintiffs did not pursue the procedural
remedies that were afforded. They have also failed to explore how the timing of the
administrative process compares with seeking a judicial remedy or how the timing of the
judicial process itself may be streamlined by a narrowing or clarification of the issues
through the administrative process.
Furthermore, the Plaintiffs’ timing argument ignores that, at various points in the
administrative review process, complainants may actually get the resolution they desire
much more quickly. In fact, the regulations themselves provide for possible early
resolution of complaints. Tennessee Comprehensive Rules & Regulations 0520-12-04-.06,
entitled “Early Resolution of Complaints,” not only provides for, but encourages, a
procedure in which the complainant and the LEA can work collaboratively to come to an
agreed solution to a complaint in the form of a “resolution agreement.” More
fundamentally, the Plaintiffs’ argument assumes that error will not be admitted by the LEA.
This runs contrary to a foundational basis of the exhaustion requirement, which is that
exhaustion affords an opportunity to correct errors. Bailey, 303 S.W.3d at 236. The
Plaintiffs also fail to consider that consequences are imposed upon LEAs that persist in
engaging in knowing violations of the prohibited concepts law in the face of complaints.
See, e.g., Tenn. Code Ann. § 49-6-2206(b)(2)(B) (providing that “[t]he commissioner of
education shall withhold a portion of the state education finance funds that an LEA is
otherwise eligible to receive if a teacher or principal employed by the LEA intentionally
violates subdivision (b)(2)(A) by purposefully using, or permitting to be used, in the
person’s school, textbooks or instructional materials created to align exclusively with the
Common Core State Standards or that are marketed as Common Core textbooks or
materials”); Tenn. Comp. R. & Regs. 0520-12-04-.08(1)(C) (including as part of the
definition of knowing violation that the LEA “[d]etermined that the allegation(s) was
substantiated, but failed to remedy the violation”); Tenn. Comp. R. & Regs. 0520-12-04-
.06(2) (stating that “[e]ntry into an early resolution agreement shall not constitute an
admission that the LEA or public charter school knowingly violated T.C.A. § 49-6-1019 or
that the individual alleged to have included or promoted the Prohibited Concept, in fact,
included or promoted a Prohibited Concept”).
The Plaintiffs offer two more arguments in support of their contention that they need
not exhaust administrative remedies due to futility. As a third basis, they contend that it is
difficult for parents to know precisely what is being taught in their children’s schools so as
to be able to demonstrate teaching of a prohibited concept. They concede, as the School
Board notes, that parents are free to learn more by, among other things, acting to “review
course syllabi, maintain an open line of communication with their children’s teacher(s),
review the books assigned, or by simply asking their children what they learned in school
that day.” The Plaintiffs counter that “Social Emotional Learning,” which they allege
equals critical race theory “is far more nuanced than simply looking at the syllabi, talking
to the teacher or the student, or simply reading the books.” The Plaintiffs do not specify,
and we fail to discern how this argument supports an elimination of the requirement to
25
exhaust administrative remedies. The uncertainty referenced by the Plaintiffs seems more
in accord with potential advantage of an administrative process that may avoid completely
unnecessary lawsuits predicated upon misunderstandings or errant perceptions. As for
their fourth basis for asserting futility, the plaintiffs contend that because the Wit &
Wisdom curriculum, which allegedly teaches prohibited concepts, is taught in all the
elementary grade levels, parents would need to re-file a complaint in each academic school
year that an alleged violation occurs. This argument ignores the possibility of more global
remedial action being taken by the LEA in response to a complaint, but even if the factual
predicate is accepted, the Plaintiffs offer no authority or additional argument to explain
how this requirement is so onerous as to excuse a legal requirement to exhaust
administrative remedies.
Therefore, we find no error in the trial court’s conclusion that the Plaintiffs’
Prohibited Concepts Claim is subject to an exhaustion requirements and dismissal thereof
for failure to comply with the mandatory procedure.
IV.
In addition to the aforementioned justiciability doctrines, the School Board also
argues that the Plaintiffs’ claims should be dismissed because there is no private right of
action that has been created to allow for a suit based upon the statutory violations which
the Plaintiffs allege. Having concluded that the Plaintiffs lacked standing, the trial court
did not address this argument, which the School Board renews on appeal before this court.
Given our justiciability based dismissal of the Plaintiffs’ Prohibited Concepts Claim for
failure to exhaust administrative remedies, we address the private right of action issue
solely as to the Plaintiffs’ Common Core Claim.
The Tennessee Supreme Court has observed that in determining if a private right of
action exists to enforce a statutory requirement “[a] court can find that the legislature
created a private right of action in one of two ways: based on the express terms of a statute
or by implication through the statute’s structure and legislative history.” Affordable Constr.
Servs., Inc. v. Auto-Owners Ins. Co., 621 S.W.3d 693, 696 (Tenn. 2021). In other words,
the private right of action for enforcement of a statute is a legislative creation that is express
or implied. See id. The Tennessee Supreme Court has indicated that the ultimate
touchstone for analysis is whether the General Assembly “intended for a private right of
action to exist.” Id.
The School Board notes that Tennessee Code Annotated section 49-6-2206 does not
expressly create a private of right of action and suggests that language therein runs contrary
to implying a private right of action. They are correct on both accounts. Tennessee Code
Annotated section 49-6-2206 does not expressly create a private right of action and the
Code section does not appear to imply the existence of a private right of action. The
26
problems for the School Board, however, is that a private right of action applicable to the
Plaintiffs’ Common Core Claim is created in Tennessee Code Annotated section 1-3-121.
Chapter 3 of Title 1 of the Tennessee Code addresses the “Construction of Statutes.”
Tennessee Code Annotated section 1-3-121 provides that
Notwithstanding any law to the contrary, a cause of action shall exist under
this chapter for any affected person who seeks declaratory or injunctive relief
in any action brought regarding the legality or constitutionality of a
governmental action. A cause of action shall not exist under this chapter to
seek damages.
Addressing section 1-3-121, the Tennessee Supreme Court observed that
The plain meaning of this text expressly recognizes the existence of causes
of action “regarding the legality or constitutionality of a governmental
action” that seek declaratory or injunctive relief. Causes of action “regarding
the legality or constitutionality of governmental action” must of necessity be
brought against governmental entities . . . .
Recipient of Final Expunction Ord. in McNairy Cnty. Cir. Ct. Case No. 3279 v. Rausch,
645 S.W.3d 160, 168 (Tenn. 2022).
The plain language of section 1-3-121 creates a private right of action – “a cause of
action shall exist … for any affected person” – when that person seeks declaratory or
injunctive relief, not damages, challenging the legality of a governmental action. The plain
language specifically dismisses any concern of contradiction with other law in its sweeping
pronouncement, “[n]otwithstanding any law to the contrary.” Furthermore, this is not a
case in which there is interpretive tension through a more specific negation or denial of a
private right of action either with regard Tennessee Code Annotated section 49-6-2206 or
the type of claim being advanced by the Plaintiffs.
The Plaintiffs’ Common Core Claim fits precisely within the contours of a private
right of action created by Tennessee Code Annotated section 1-3-121. The Plaintiffs are
affected persons who are seeking declaratory and injunctive relief, rather than damages,
and challenging the legality of a governmental action. Specifically, they are arguing that
the School Board violated Tennessee Code Annotated section 49-6-2206(b)(2)(A) by
requiring teachers and principals in public schools to use “textbooks or instructional
materials created to align exclusively with the Common Core State Standards or that are
marketed as Common Core textbooks or materials.”
Our conclusion as to the private right of action question in this case is based upon
the plain language of Tennessee Code Annotated section 1-3-121. While not grounding
27
our opinion in legislative history, we do note that the legislative history of 2018 Public Acts
Chapter 621 section 1 is consistent with our plain language reading. The House Sponsor,
then-Majority Leader Glen Casada, at the final reading of the proposed legislation before
the full Tennessee House of Representatives, was specifically asked whether it was
intended that citizens would have private rights of action for Tennessee Code provisions
that did not currently authorize such suits, and answered in the affirmative.19 In committee,
the Senate sponsor, Senator Jon Lundberg, in explaining the proposed legislation to
committee members, also expressly indicated that this legislation was designed to address
circumstances where there is not a specific cause of action to address unconstitutional or
illegal governmental action, providing one so long as it is not for an action seeking
damages.20
19
Leader Casada: [This bill] has to do with giving the right of the citizen to take government to
court if they violate our state law or our constitutional rights. It makes it very clear and cold that we have
that right . . . . That is what this bill does.
...
Representative Clemons: Mr. Leader, the breadth of this provision in Title I Chapter 3 – is this intended to
apply across the board to any action against the government?
Leader Casada: Declaratory action.
Representative Clemons: Or injunctive relief?
Leader Casada: Or injunctive. . . .
...
Representative Clemons: I want to make sure the intent of this legislation is as I understand it which is the
breadth so if any cause of action against the government in the Code or elsewhere does not currently contain
a cause, a private cause of action you are creating one with this legislation?
Leader Casada: I would submit we are making it clear that it already exists. I think we have passed
legislation in the past. Lower courts have opined that citizens don’t have a right to take their government
to court. I contend that we have on many occasions said that they do. But it we are making it very clear
that they do.
...
Representative Clemons: . . . My original question was if we are creating this new or at least clarifying that
everyone has standing that it then opens up the entire Code for any Code that is not currently or may not
have a private cause of action for something prohibited that we are opening that door up -- I just want to
make that clear.
Leader Casada: Yes sir.
20
Senator Lundberg: . . . A lot of folks thought well they couldn’t sue cities and states because they
didn’t have a specific cause of action. This says again they can but not for damages.
...
Senator Kelsey: . . . It only applies if you are not seeking damages so you cannot be asking for money is
that correct?
Senator Lundberg: Absolutely. Precisely.
28
V.
For the reasons discussed above, we affirm the trial court’s dismissal of P.J.L. and
J.L. and their child C.L. based upon lack of standing. We conclude, however, that the trial
court erred in determining that Jennifer Roe and her children A.B. and B.B. and Katherine
Roe and her children C.D. and D.D. do not have standing and that Parents’ Choice
Tennessee lacks standing. We conclude that the trial court properly determined that the
remaining Plaintiffs’ Prohibited Concepts Claim is subject to a mandatory exhaustion
requirement and properly dismissed their claim due to failure to exhaust. We reverse the
trial court’s dismissal of the remaining Plaintiffs’ Common Core Claim.
Costs of the appeal are taxed equally to the Appellants, Parents Choice Tennessee,
P.J.L., J.L., Jennifer Roe, and Katherine Roe, and the Appellee, the Williamson County
Board of Education. We remand for further proceedings consistent with this opinion.
_________________________________
JEFFREY USMAN, JUDGE
...
Senator Lundberg: . . . There are recent court opinions that have expanded the intent of the original law
again that is just that people are prohibited from filing those suits. This clarifies that they do have a cause
of action but not to seek damages so to stop whatever the unconstitutional or illegal act would be.
29