                                                                                        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
