Opinion

Bethel University v. Tennessee State Board of Education

Court
Court of Appeals of Tennessee
Filed
Aug 14, 2018
Status
Published
On the bench
Judge Richard H. Dinkins
Cited by
0 cases
Authority
More cited than 5.0%

The opinion

08/14/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 13, 2018 Session

BETHEL UNIVERSITY v. TENNESSEE STATE BOARD OF EDUCATION,

ET AL.

Appeal from the Chancery Court for Davidson County

No. 16-920-I Claudia C. Bonnyman, Chancellor

___________________________________

No. M2017-01428-COA-R3-CV

___________________________________

The Tennessee Board of Education (“the Board”) denied approval of Bethel University’s

(“Bethel”) educator preparation program (“EPP”). After unsuccessfully pursuing

remedies under the Uniform Administrative Procedures Act (UAPA), Bethel sought

judicial review of the Board’s action. The trial court found that the Board Policy 5.504,

relied upon by the Board in its decision, was invalid and reinstated approval of Bethel’s

EPP. The Board appeals, asserting 5.504 is a valid policy within the meaning of the

UAPA and that the court erred in reinstating Bethel’s EPP. We affirm the trial court’s

holding that 5.504 is a rule within the meaning of the UAPA and, since it was not

promulgated as a rule in accordance with the UAPA, it is invalid and could not be used as

a basis of denying approval of Bethel’s EPP. Further, we have determined that the court

exceeded its authority in ordering reinstatement of Bethel’s EPP; we vacate the decision

in that regard and remand the case to the trial court with instructions to remand the case

to the Board for further consideration of Bethel’s approval status as an EPP.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

in Part, Reversed in Part

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; and Lindsay Haynes Sisco, Assistant Attorney General, for the appellant,

Tennessee State Board of Education.

Lawrence F. Giordano, Knoxville, Tennessee, for the appellee, Bethel University.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY1

Bethel University (“Bethel”) is a private, non-profit, four-year, post-secondary,

educational institution with its primary campus located in McKenzie, Tennessee. The

Tennessee State Board of Education (“the Board”) is the agency responsible for

promulgating and adopting rules and regulations pertaining to education; the Tennessee

Department of Education (“the Department”) is the agency responsible for the

administration and enforcement of Tennessee statutes relating to education.

Until July 22, 2016, Bethel’s School of Education’s educator preparation program

had been approved as an Educational Preparation Provider (“EPP”)2 by the State of

Tennessee; Bethel had this approval for as long as the Board and the Department have

required teacher training programs be approved in order to recommend graduates for

teacher licensure.3

1

The factual and procedural history is derived from the joint stipulations of the parties filed in the

administrative proceeding as well as in the judicial review proceeding.

2

Both the educatory preparation programs and the institutions that provide these programs are commonly

known as Educator Preparation Providers; accordingly, EPP is used throughout the record to refer to both

Educator Preparation Providers and the educator preparation programs provided thereby.

3

In Tennessee, the accreditation process for educator preparation programs, as well as the Board’s role

therein, was succinctly described in the joint stipulations of the parties filed in the administrative

proceeding as well as in the judicial review proceeding, which we reproduce in pertinent part:

13. Under Tennessee law, teaching licenses may be issued only to those students who

have graduated from a Tennessee institution that has been certified by the Department or

an out-of-state institution certified by the state in which it is located.

14. Under the current Board Policy, EPPs, such as Bethel, have two approval

management options when they seek State Board approval to recommend candidates for

teacher licensure in Tennessee. First, they may elect to seek national accreditation

through a review managed by a national accrediting agency approved by the United

States Department of Education to accredit educator preparation providers currently

known as the Council for the Accreditation of Educator Preparation (“CAEP”), (or, prior

to 2013, by its predecessor agency, the National Council for the Accreditation of Teacher

Education (“NCATE”)). In the alternative, they may choose to pursue ongoing approval

through the state-managed review process.

15. Regardless of which option EPPs choose, EPPs are evaluated against the CAEP

standards. If the EPP is seeking approval through the state-managed pathway, they are

reviewed by a review team appointed by the Department. If the EPP is seeking approval

through the CAEP accreditation pathway, they are reviewed by a review team jointly

selected by CAEP and the Department.

2

In November of 2013, the Department’s review team, after conducting an on-site

visit, determined Bethel did not meet two of the Council for the Accreditation of

Educator Preparation (“CAEP”) standards; as a result of this determination, the

Department recommended that Bethel receive continuing approval with stipulations, a

recommendation that the Board approved on July 25, 2014.

In April of 2015, the Department’s review team assessed Bethel’s progress in

addressing the areas of deficiencies and issued a report concluding that Bethel met both

of the previously unmet standards, though there were some areas of persisting weakness.

Accordingly, the Department intended to recommend that the Board grant continuing

approval to Bethel without stipulations at a board meeting on July 24, 2015. At the

Board’s workshop on July 23, 2015, however, the Department’s Commissioner, Candice

McQueen, reported to the Board that, after learning that Bethel was moving toward

CAEP accreditation, the Department wanted to “let the CAEP process play out” before

making its recommendation. Commissioner McQueen explained that Bethel’s then-

current status was “approval with stipulations” and that Bethel had until the fall of 2017

to make improvements to its current status. At its meeting, the Board deferred action,

pending the CAEP procedure; Bethel was notified this deferral of action had no impact

on its ability to recommend its EPP students as candidates for licensure.

On May 10, 2016, Bethel was granted national accreditation for two years and,

based on the CAEP’s finding that two of its standards were not fully met, given until the

fall of 2017 to demonstrate progress towards addressing those deficiencies.

16. As a part of the review and approval process, the review team conducts an on-site

visit of the institution and it prepares an on-site review report that is submitted to the

Department and the Commissioner’s Advisory Committee which, after considering the

review team’s recommendations, then submits recommendations to the Department for

presentation to the Board.

17. In the past, the Department’s recommendations to the Board for EPPs fell into one of

three categories: approval, approval with stipulations, or denial of approval. Under

current Board Policy, there are five categories of approval, which are as follows: full

approval, exemplary status; full approval; full approval, minor stipulations; probationary

approval, major stipulations; or denial of approval.

18. EPPs that obtain approval by the Department must undergo a comprehensive review

process that includes an on-site visit by a review team every seven years to maintain

continuing approval.

We note that CAEP formerly operated as NCATE until 2013; these entities are interchangeably used

throughout the record. For clarity, we will refer to this entity exclusively as CAEP, regardless of its title at

the time, as the distinction is not material to our analysis or ruling.

3

On July 8, 2016, Commissioner McQueen informed Bethel that the Department

would be recommending to the Board that it deny continuing approval of Bethel’s EPP at

the next scheduled meeting, July 22, 2016. At this meeting, the Department presented

this recommendation, based on an on-site review by the CAEP that concluded Bethel did

not meet expectations on two of the six CAEP standards and had additional areas for

improvement in three of the other standards. The Board then voted to approve this

recommendation. Immediately thereafter, Bethel was informed that, as a consequence of

the denial, it must cease recruiting and enrolling new students in its initial and advanced

education programs and must transfer any currently enrolled Bethel students who cannot

complete their programs within twelve months of the date of denial of approval to other

programs or schools. Following the Board’s action, Bethel requested a stay of the

Board’s action. On September 1, 2016, the Board held a special called meeting to

consider Bethel’s request for a stay; the Board denied the request.

On August 15, 2016, Bethel filed a complaint for declaratory judgment and

injunctive relief in Davidson County Chancery Court, naming as defendants the Board;

the Department; Commissioner McQueen; Ms. Sara Heyburn, the Executive Director of

the Board; and individual members of the Board. On the same day, Bethel filed a motion

for a restraining order and temporary injunction, requesting the defendants be prohibited

from enforcing any aspect of the Board’s July 22 decision until the court rendered a

further order or final determination on the merits; the court granted this motion and filed

a restraining order on August 17. However, this order did not set a date for hearing

Bethel’s motion for a temporary injunction, and the chancellor assigned to the case

recused herself on August 18. On August 25, Bethel filed an emergency motion to

extend the restraining order, as an order of reassignment or transfer had not yet been

entered and the restraining order was to expire on September 1, 2016. On August 26, an

order was entered transferring the case to a new judge; on August 29, the restraining

order was extended by agreement of the parties.

On September 15, Bethel filed a Petition for Declaratory Order and Request for

Stay with the Board, requesting the Board immediately stay enforcement its decision

denying approval of Bethel’s EPP upon receipt of the petition and until the issuance of a

declaratory order following a contested case hearing or until the time limit for convening

a contested case hearing; Bethel also requested that the Board convene a meeting on an

expedited basis to consider its petition and either refuse to issue a declaratory order

pursuant to Tennessee Code Annotated section 4-5-223(a)(2) or set this matter for a

contested case hearing as soon as possible prior to the sixty-day time limit for disposing

of the appeal set forth in Tennessee Code Annotated section 4-5-223(c).

On September 16, Bethel filed its first amended verified complaint, stating that it

had filed the administrative petition. On September 22, the court denied Bethel’s motion

for a restraining order and temporary injunction, finding Bethel had not exhausted its

4

administrative remedies. The Board then filed a motion to dismiss Bethel’s complaint on

that basis.

At its regularly scheduled October 14 meeting, the Board voted to convene a

contested case hearing on Bethel’s petition; it did not address Bethel’s request for a stay

of enforcement. The hearing was held on January 25, 2017 before the Board and an

administrative law judge; after deliberation, the Board returned a unanimous vote,

holding that the Board’s denial of approval of Bethel’s EPP was a valid and lawful

action, and that Bethel was not entitled to reinstatement of its approval status.

On February 2, Bethel moved to amend its complaint in chancery court to seek

judicial review under the UAPA of the Board’s January 25 declaratory order; on

February 10, the court heard this motion and the Board’s motion to dismiss for failure to

exhaust administrative remedies. On February 16, the court entered an order, granting

Bethel’s motion to amend, approving Bethel’s oral notice of voluntary dismissal of all

other parties and causes of action, and denying the Board’s motion to dismiss.

At a hearing on June 13, the court issued an oral ruling, setting forth its findings of

facts and conclusions of law on Bethel’s motion for judicial review; on June 29, the court

entered an order incorporating its oral ruling, finding the Board’s EPP Policy 5.504

invalid because it was not properly promulgated as a rule, restoring Bethel’s approved

EPP status, and declaring the remaining issues in Bethel’s petition moot as a result of the

court’s finding that the Board’s denial of approval was invalid.

On July 14, the Board filed a notice of appeal and a motion to stay enforcement of

the June 29 final order pending appeal; on August 3, the trial court denied the motion to

stay. Bethel presents two issues on appeal:

I. Whether the educator preparation policy of [the Board] is valid under

Tenn. Code Ann. §§ 4-5-102(10), -(12)(E)(ii); 49-1-302(a)(5)(A)(i); and

49-5-101(e).

II. Whether the chancery court erred when it reinstated [Bethel’s] [EPP].

II. STANDARD OF REVIEW

The Uniform Administrative Procedures Act (“UAPA”) provides for judicial

review of an agency decision in the chancery court, Tennessee Code Annotated section 4-

5-322(b)(1)(A), and the decision of the chancery court may then be appealed to this Court

pursuant to the Tennessee Rules of Appellate Procedure. Tenn. R. App. P. 3(a).

This Court, as well as the trial court, reviews the Commission’s decision under the

narrowly defined standard of review contained in the UAPA, section 4-5-322(h), rather

5

than under the broad standard of review used in other civil appeals. Clear Channel

Outdoors v. Tennessee Dep’t of Transp., 337 S.W.3d 801, 804 (Tenn. Ct. App. 2010).

Specifically, that UAPA provides:

The court may affirm the decision of the agency or remand the case for

further proceedings. The court may reverse or modify the decision if the

rights of the petitioner have been prejudiced because the administrative

findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion; or

(5)(A) Unsupported by evidence that is both substantial and material in the

light of the entire record.

(B) In determining the substantiality of evidence, the court shall take

into account whatever in the record fairly detracts from its weight, but

the court shall not substitute its judgment for that of the agency as to

the weight of the evidence on questions of fact.

Tenn. Code Ann. § 4-5-322(h).

A reviewing court should generally defer to an administrative agency’s decision

when it is acting within its “‘area of specialized knowledge, experience, and expertise.’”

Williamette Indus., Inc. v. Tennessee Assessment Appeals Comm’n. 11 S.W.3d 142, 146

(Tenn. Ct. App. 1999) (quoting Wayne Cnty. v. Tennessee Solid Waste Disposal Control

Bd., 756 S.W.2d 274, 279 (Tenn. Ct. App. 1988)). As noted by this Court in Moore v.

Neeley, “[o]ne of the most venerable doctrines in administrative law is that a court will

give great deference to an agency’s interpretation of its own rules.” No. W2006-00438-

COA-R3-CV, 2006 WL 3371132, at *5 (Tenn. Ct. App. Oct. 6, 2006) (citing 33 Charles

Alan Wright & Charles H. Koch, Jr., Federal Practice and Procedure § 8353 (2006)).

This Court reviews the factual findings of the Commission under the limited provisions

of Tennessee Code Annotated section 4-5-322, and we review matters of law de novo

with no presumption of correctness. Davis v. Shelby Cnty. Sheriff’s Dept., 278 S.W.3d

256, 264 (Tenn. 2009) (citing Tenn. R. App. P. 13(d); Cumulus Broad, Inc. v. Shim, 226

S.W.3d 366, 373 (Tenn. 2007)).

III. ANALYSIS

A. Validity of EPP Policy 5.504

The threshold issue on appeal is whether EPP Policy 5.504 is a rule, subject to the

6

rule-making procedures in the UAPA, or a policy of the Board, not subject to those

procedures. The distinction between a policy and a rule is significant, because “the

UAPA requires a state agency in Tennessee to follow uniform procedures when making

rules.” Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 311 (Tenn. 2005) (citing Tenn.

Code Ann. §§ 4-5-201 et seq.) Any agency rule not adopted in accordance with the

UAPA rule-making provisions “shall be void and of no effect” and cannot be invoked by

the agency for any purpose. Tenn. Code Ann. § 4-5-216. In contrast, the UAPA imposes

no such requirement on an agency’s ability to create and adopt policies. The parties

stipulated that this policy, EPP Policy 5.504, was not promulgated under the UAPA.

The parties rely upon several statutes that were amended after oral arguments and

took effect July 1, 2018. These amendments, contained in Ch. 929, Pub. Acts of 2018,

changed the definitions of “policy” and “rule” at Tennessee Code Annotated section 4-5-

102(10) and (12), respectively. The bill adopting the amended definitions does not

provide that the definitions are to be applied retroactively; consequently, we review the

Board’s determination that EPP Policy 5.504 is a policy and not a rule under the

definition of those terms prior to July 1, 2018.

At the time of the Board’s determination, the UAPA defined a “policy” to mean “a

set of decisions, procedures and practices pertaining to the internal operation or actions of

an agency.” Tenn. Code Ann. § 4-5-102(10). The Board argues that EPP Policy 5.504

meets this criteria as well as being one of the exceptions to the definition of “rule” stated

at section 4-5-102(12)(A) and (E)(ii). Further, the Board contends that the authority

relied upon by the trial court in its ruling does not involve agencies statutorily authorized

to adopt policies, as is the case here, and that such statutes control over the UAPA

general provisions regarding rule-making. See Tenn. Code Ann. § 49-1-302(a)(5)(A)(i)

(granting the Board the power and duty to “[a]dopt policies governing: [t]he

qualifications, requirements and standards of and provide the licenses and certificates for

all public school teachers, principals, assistant principals, supervisors and directors of

school”). Lastly, the Board asserts that its properly promulgated rule, Tennessee

Comprehensive Rules and Regulations 0520-02-04-.01(1), satisfies its obligations under

UAPA; this rule provides: “[a]ll educator preparation providers and the licensure

programs they offer must be approved by [the Board] [and that a]pproval shall be

awarded based on policies established by [the Board].”

EPP Policy 5.504 is inconsistent with the definition of “policy” at section 5-4-

102(10) because it is not only concerned with the internal operation of the Board. It is a

comprehensive document that sets forth the standards and means by which an institution

can have its education program designated as an EPP, thereby permitting students who

successfully complete the institution’s requirements to be recommended for licensure by

the State of Tennessee. The parties stipulated that EPP Policy 5.504 “sets forth the

Board’s process for how review teams evaluate and approve EPPs, including the Board’s

7

requirements for conditional and full approval as well as the steps in the review process

and the possible outcomes.” This is illustrated by the Board’s factual findings:

5. The State Board approves and denies Educator Preparation Providers

and Programs (“EPPs”) pursuant to its EPP Policy 5.504 (“EPP Policy”)

and Tenn. Comp. R. & Regs. 0520-02-04-.01.

8. The EPP policy outlines a multi-level process, at which the decisions

concerning approval are discretionary.

These findings affirm that EPP Policy 5.504 affects more than the Board’s internal

management by dictating approval processes for organizations like Bethel, which are not

internal to the agency, and are beyond the scope of internal management.

In like manner, EPP Policy 5.504 is consistent with the definition of a “rule” at

Tennessee Code Annotated section 4-5-102(12), which states in pertinent part:

(12) “Rule” means each agency statement of general applicability that

implements or prescribes law or policy or describes the procedures or

practice requirements of any agency. “Rule” includes the amendment or

repeal of a prior rule, but does not include:

(A) Statements concerning only the internal management of state

government and not affecting private rights, privileges or procedures

available to the public;

***

(D) General policy statements that are substantially repetitious of existing

law;

(E) Agency statements that:

(ii) Relate to the curriculum of individual state supported

institutions of postsecondary education or to the admission or

graduation of students of such individual institutions but not

to the discipline or housing of students.

Relative to this issue, the Board made the following finding, which brings EPP Policy

5.504 squarely within the definition of rule:

7. The EPP Policy contains the procedures and practices pertaining to the

internal operation or actions of the State Board for reviewing of EPPs.

8

Further, while EPP Policy 5.504 may affect the curriculum or graduation of students of

individual state-supported institutions, it does not directly relate to these and does not fall

within the statutory exception at Tennessee Code Annotated section 4-5-102(12)(E)(ii).

B. Reinstatement of Bethel’s EPP

The second issue we address is whether the trial court erred when it reinstated

Bethel University’s educator preparation program. In its final order, the court held:

That Bethel’s EPP’s status is restored to the approved status it possessed

before the Board invalidly attempted to deny Bethel’s EPP approval using

the invalid Board Policy 5.504 on or about July 22, 2016.

The court’s oral ruling expounds upon this holding, stating:

The Court must find here that due to the court’s finding that the board’s

denial of approval of the plaintiff’s EPP -- or the Court must find that the

board’s denial of approval of the plaintiff’s EPP was invalid because the

policy on which the board relied was not properly promulgated in

accordance with the APA. . . . The policy cannot serve as the basis for

denial of approval of the plaintiff’s EPP because the denial is deemed

invalid, and the Court does deem the policy invalid because it cannot be

implemented absent its being -- going through the rulemaking process and

becoming a legitimate rule. So the policy cannot serve as the basis for

denial of approval of the plaintiff’s EPP. Because this denial is deemed

invalid, the last action that is standing is the latest approval by the State of

the plaintiff’s EPP. This conclusion, although not satisfying to the hard-

working and very admirable Tennessee Board of Education, is the only

reasonable outcome of this judicial review.

The UAPA’s narrow standard of review provides that the reviewing court “may

affirm the decision of the agency or remand the case for further proceedings. Tenn. Code

Ann. § 4-5-322(h). Beyond this limited scope of action, the reviewing court may reverse

or modify the agency’s decision, but only in such circumstances as specified by the

UAPA:

The court may reverse or modify the decision if the rights of the petitioner

have been prejudiced because the administrative findings, inferences,

conclusions or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

9

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion; or

(5)(A) Unsupported by evidence that is both substantial and

material in the light of the entire record.

Id.

We are of opinion that the trial court exceeded its authority in restoring Bethel’s

EPP status as relief in this proceeding; rather, the court’s authority, under the

circumstances presented, is to remand the case to the Board for further consideration in

light of its disposition of the administrative appeal.

IV. CONCLUSION

For the foregoing reasons, we affirm the holding that EPP Policy 5.504 is a rule

that was not promulgated under the UAPA and, as a consequence, could not be used as a

basis of denying approval of Bethel’s EPP. We vacate the portion of the trial court’s

order restoring Bethel’s EPP status and remand the case with instructions for the court to

remand the case to the Tennessee Board of Education for further consideration, in light of

this opinion.4

RICHARD H. DINKINS, JUDGE

4

On January 11, 2018, the Board moved this court to consider that on August 10, Bethel voluntarily

withdrew from its CAEP accreditation review and cancelled its fall 2017 on-site visit and that Bethel’s

EPP is now without national accreditation. On January 25, 2018, the court granted this motion, stating in

its order:

The court finds good cause to consider the post-judgment fact under Tenn. R. App. P. 14.

The court reserves judgment as to all other issues including the relevance, if any, of the

post-judgment fact.

This is not a fact that we have considered in our disposition of the appeal; it is a matter that the Board can

consider on remand.

10

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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