                                                                                      02/05/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               January 9, 2019 Session

STATE EX REL. CANDICE MCQUEEN V. METROPOLITAN NASHVILLE
            BOARD OF PUBLIC EDUCATION ET AL.

               Appeal from the Chancery Court for Davidson County
                 No. 17-1131-II   William E. Young, Chancellor


                           No. M2018-00506-COA-R3-CV


A metropolitan board of education adopted a policy preventing the provision of student
information to the State of Tennessee in its role as the administrator of an achievement
school district pursuant to Tenn. Code Ann. § 49-13-132. The State filed a petition for
writ of mandamus and declaratory judgment, and the chancery court granted the writ of
mandamus. The board of education appeals. We affirm the decision of the chancery
court.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Lora Barkenbus Fox, Jonathan Barrett Cooper, Catherine Jane Pham, Nashville,
Tennessee, for the appellant, Metropolitan Nashville Board of Public Education.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor
General, and Michael Markham, Senior Assistant Attorney General, for the appellee,
State of Tennessee.

                                      OPINION

                      FACTUAL AND PROCEDURAL BACKGROUND

      On October 18, 2017, the State of Tennessee, on behalf of the Commissioner of
the Department of Education and Administrator of the Achievement School District
(“ASD”), filed a petition for writ of mandamus and declaratory judgment against
Metropolitan Nashville Board of Public Education (“MNBE”) and the Director of
Schools for Metropolitan Nashville Public Schools (“MNPS”) seeking to require the
respondents to provide the ASD with certain student data in accordance with Public
Chapter 307, codified at Tenn. Code Ann. § 49-13-132.1 The ASD is an organizational
unit of the Tennessee Department of Education (“the Department”) and a “chartering
authority” under statutes governing charter schools. See Tenn. Code Ann. §§ 49-1-
614(a), 49-13-104(5)(A), 49-13-106(a)(2)(A). The MNBE is the local education agency
(“LEA”) responsible for operating the MNPS. See Tenn. Code Ann. § 49-1-102(c).

        The facts that brought about the lawsuit are not in dispute. On August 2, 2017, the
ASD submitted a letter to the Director of MNPS requesting, pursuant to Chapter 307, that
MNPS provide to the ASD “the contact information for all students zoned to or enrolled
in 2016-17 or 2017-18 in all priority schools in MNPS’s district.” The MNBE informed
the Department on August 28, 2017, that it had voted “to withhold MNPS student and
family contact information” from the ASD. The Department responded that MNPS’s
position was in violation of Chapter 307. The MNBE met on September 12, 2017, and
adopted a policy prohibiting “the Director of Schools from releasing to other school
districts the directory information, as defined by FERPA,[2] for any MNPS students and
families unless they are currently enrolled in the other school districts or seeking to be
enrolled in the other school districts.” The Attorney General for the State of Tennessee
subsequently issued an opinion consistent with the Department’s position. See Tenn. Op.
Att’y. Gen. 17-39 (Sept. 13, 2017). Nevertheless, the MNPS notified the Department by
letter dated September 25, 2017, that MNPS would not be providing the requested
information.

       This lawsuit followed. The trial court entered an alternative writ of mandamus
requiring the respondents to provide the requested information or show cause why the
alternative writ should not issue. The respondents declined to provide the information
and filed a motion to dismiss and answer. After a hearing on November 28, 2017, and
January 10, 2018, the trial court granted the writ of mandamus. By agreement of the
parties, execution of the writ was stayed pending appeal.

       On appeal, we are presented with the issue of whether the trial court erred in
issuing a writ of mandamus to the local school board and director of schools requiring the
production of student data to the State pursuant to Tenn. Code Ann. § 49-13-132.

                                               ANALYSIS

       The respondents, the MNBE and the MNPS, make the following arguments
against the trial court’s decision: (1) FERPA preempts Chapter 307 and gives MNBE the

1
  The terms “Chapter 307” and “Tenn. Code Ann. § 49-13-132” will be used interchangeably throughout
this opinion.
2
    “FERPA” stands for the Federal Educational Rights and Privacy Act.
                                                   -2-
discretion to release the information; (2) if Chapter 307 removes that discretion, the
statute is ambiguous and requires the court to consider legislative history to aid in
interpretation; (3) Chapter 307 requires releasing information to schools operating within
the MNPS district, not to a separate school district; and (4) Chapter 307 did not envision
the release of student information for marketing and recruiting.

       We note at the outset that the petitioners, the Department and the ASD, sought a
writ of mandamus to require the respondents to supply the requested information. It is
“well-settled” in Tennessee “‘that mandamus will only lie to enforce a ministerial act or
duty and will not lie to control a legislative or discretionary duty.’” State ex rel. Weaver
v. Ayers, 756 S.W.2d 217, 220-21 (Tenn. 1988) (quoting Lamb v. State ex rel. Kisabeth,
338 S.W.2d 584, 586 (Tenn. 1960)). The difference between ministerial duties and
discretionary duties is generally:

       “[W]here the law prescribes and defines the duties to be performed with
       such precision and certainty as to leave nothing to the exercise of discretion
       or judgment, the act is ministerial, but where the act to be done involves the
       exercise of discretion and judgment it is not deemed merely ministerial.”

Id. at 221 (quoting State ex rel. Millers Nat’l Ins. Co. v. Fumbanks, 151 S.W.2d 148, 150-
51 (Tenn. 1941)). The purpose of mandamus is to execute, not to adjudicate. Id. If the
claim or right for which mandamus is sought is doubtful or uncertain, mandamus is not
the proper remedy. Id. Thus, a writ of mandamus may only be issued by a court where
the petitioner’s right to the relief sought is “clearly established,” the respondent has a
“clear duty to perform the act” at issue, and “‘no other plain, adequate, and complete
method of obtaining the relief’” exists. Manhattan, Inc. v. Shelby Cnty., No. W2006-
02017-COA-R3-CV, 2008 WL 639791, at *7 (Tenn. Ct. App. Mar. 11, 2008) (quoting
Cherokee Country Club v. City of Knoxville, 152 S.W.3d 466, 479 (Tenn. 2004)).

       For the reasons discussed below, we conclude that the respondents have a clear
statutory duty to comply with the petitioners’ request and the trial court properly issued
the writ of mandamus.

       1. Federal Educational Rights and Privacy Act (“FERPA”) preemption.

      The respondents argue that FERPA gives them discretion to release the requested
information and preempts the mandate of Chapter 307.

      We begin by looking at Chapter 307 and what it requires. Chapter 307, codified at
Tenn. Code Ann. § 49-13-132, provides:

       To effectuate § 49-13-113 [concerning enrollment in public charter
       schools], within thirty (30) days of receiving a request from a chartering

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       authority or a public charter school approved to operate one (1) or more
       schools in the district, an LEA shall provide at no cost a list of student
       names, ages, addresses, dates of attendance, and grade levels completed in
       accordance with § 10-7-504[3] and the Family Educational Rights and
       Privacy Act (FERPA) (20 U.S.C. § 1232g). Such information shall not be
       released by the receiving entity to outside parties without prior written
       consent from the parent or eligible student. Each recipient of such
       information shall adopt and implement a policy allowing parents or eligible
       students to decline to receive further information from the charter school.

(Emphasis added). Tennessee Code Annotated section 49-13-113, referenced in the
beginning of § 49-13-132, provides in subsection (a) that “[p]articipation in a public
charter school shall be based on parental choice or the choice of the legal guardian or
custodian.”

       When interpreting a statute, we look at the plain meaning of the words used:
“‘The text of the statute is of primary importance, and the words must be given their
natural and ordinary meaning in the context in which they appear and in light of the
statute’s general purpose.’” Friedmann v. Marshall Cnty., 471 S.W.3d 427, 433 (Tenn.
Ct. App. 2015) (quoting Mills v. Fulmarque, Inc. 360 S.W.3d 362, 368 (Tenn. 2012)).
Chapter 307 states that, once a request is made, the LEA “shall provide at no cost a list of
student names, ages, addresses, dates of attendance, and grade levels completed in
accordance with § 10-7-504” and FERPA. Tenn. Code Ann. § 49-13-32 (emphasis
added). The word “shall” is generally interpreted as “‘being mandatory and not
discretionary.’” JJ & TK Corp. v. Bd. of Comm’rs of City of Fairview, 149 S.W.3d 628,
631 (Tenn. Ct. App. 2004) (quoting Gabel v. Lerma, 812 S.W.2d 580, 582 (Tenn. Ct.
App. 1990)). Thus, the LEA to whom a request is directed is required to provide the
requesting chartering authority, which is the ASD here, with the listed information in
order to effectuate the purpose of allowing participation in the public charter school
“based on parental choice or the choice of the legal guardian or custodian.” Tenn. Code
Ann. § 49-13-113(a).




3
 Tennessee Code Annotated section 10-7-504 concerns confidentiality of records. Subsection (a)(4)(A)
addresses the records of students in public educational institutions and states, in pertinent part:

       Statistical information not identified with a particular student may be released to any
       person, agency, or the public; and information relating only to an individual student’s
       name, age, address, dates of attendance, grade levels completed, class placement and
       academic degrees awarded may likewise be disclosed.

Tenn. Code Ann. § 10-7-504(a)(4)(A).


                                                -4-
       How does FERPA affect the application of Chapter 307? The respondents assert
that FERPA preempts Chapter 307. We disagree.

        We must begin “with the presumption that Congress does not intend to supplant
state law and that the historic police powers of the states are not superseded by the federal
act unless preemption was the clear and manifest purpose of Congress.” Morgan Keegan
& Co., Inc. v. Smythe, 401 S.W.3d 595, 605 (Tenn. 2013). Moreover, “[t]hat
presumption is especially strong when Congress has ‘legislated . . . in [a] field which the
States have traditionally occupied.’” Leggett v. Duke Energy Corp., 308 S.W.3d 843, 854
(Tenn. 2010) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
Education is a field traditionally occupied by the states. See, e.g., E. Ramapo Cent. Sch.
Dist. v. DeLorenzo, No. 13-CV-1613 (CS), 2013 WL 5508392, at *8 (S.D.N.Y. Oct. 3,
2013). Thus, the respondents must overcome a strong presumption against preemption.

       In order to establish preemption in this case, the respondents must establish an
implied conflict between FERPA and Chapter 307. See Lake v. Memphis Landsmen,
LLC, 405 S.W.3d 47, 56 (Tenn. 2013). There are two types of implied conflict
preemption.4 First, direct conflict preemption requires “‘an inescapable contradiction
between state and federal law,’” such that it is impossible for a person to comply with
both laws. Id. (quoting Leggett, 308 S.W.3d at 853.). Second, purposes and objectives
conflict preemption requires that the state law “‘stands as an obstacle to the
accomplishment and execution of the full purposes and objectives’” of the federal law.
Id. (quoting Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323, 330 (2011)). As will
be discussed below, there is no conflict in the present case.

       FERPA and its implementing regulations provide the federal framework
governing access to and disclosure of student information and records. Gonzaga Univ. v.
Doe, 536 U.S. 273, 278-79 (2002). The statute protects the privacy of students’
educational records and information by conditioning receipt of federal funding on an
educational agency or institution’s compliance with the statute. See 20 U.S.C. §
1232g(b). The key provision of FERPA concerning the release of education records
provides, in pertinent part:

          No funds shall be made available under any applicable program to any
          educational agency or institution which has a policy or practice of
          permitting the release of education records (or personally identifiable
          information contained therein other than directory information, as defined
          in paragraph (5) of subsection (a)) of students without the written consent
          of their parents to any individual, agency, or organization, other than to the
          following—[lists categories of persons not applicable here].


4
    We address field preemption separately below.
                                                    -5-
20 U.S.C. § 1232g(b)(1) (emphasis added).                        Subsection (a)(5) defines “directory
information” as follows:

          [T]he term “directory information” relating to a student includes the
          following: the student’s name, address, telephone listing, date and place of
          birth, major field of study, participation in officially recognized activities
          and sports, weight and height of members of athletic teams, dates of
          attendance, degrees and awards received, and the most recent previous
          educational agency or institution attended by the student.

20 U.S.C. § 1232g(a)(5)(A). Directory information may be disclosed without prior
parental consent.5 20 U.S.C. 1232g(b)(1). If an educational agency or institution decides
to make directory information public, however, it must “give public notice of the
categories of information which it has designated as such information” regarding each
student and “allow a reasonable period of time after such notice” for parents to inform the
agency or institution that they do not want the information released without their prior
consent. 20 U.S.C. § 1232g(a)(5)(B).

        Tennessee Code Annotated section 49-13-132 requires an LEA to disclose to a
requesting “chartering authority or a public charter school approved to operate one (1) or
more schools in the district” only this directory information, and FERPA expressly
permits the disclosure of that information when parents have been given notice and an
opportunity to opt out. See 20 U.S.C. § 1232g(a)(5)(B); 34 C.F.R. § 99.37.6 In the
present case, the respondents have previously notified parents that MNPS and/or MNBE
will disclose directory information without seeking parental consent and have given
parents the opportunity to opt out in accordance with FERPA. As the respondents noted
in testimony cited in their motion to dismiss, the MNBE, like other school districts,


5
  Pursuant to 34 C.F.R. § 99.3, “[d]irectory information means information contained in an education
record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.”
6
    34 C.F.R. 99.37(a) provides:

          An educational agency or institution may disclose directory information if it has given
          public notice to parents of students in attendance and eligible students in attendance at the
          agency or institution of:
          (1) The types of personally identifiable information that the agency or institution has
          designated as directory information;
          (2) A parent’s or eligible student’s right to refuse to let the agency or institution designate
          any or all of those types of information about the student as directory information; and
          (3) The period of time within which a parent or eligible student has to notify the agency
          or institution in writing that he or she does not want any or all of those types of
          information about the student designated as directory information.


                                                      -6-
shares directory information widely—for example, with vendors for school photographs,
yearbooks, and graduation invitations.

       There is no conflict between Tenn. Code Ann. § 49-13-132 and FERPA. The
Tennessee statute requires an LEA to share student directory information with chartering
authorities and public charter schools “in accordance with” FERPA. Tenn. Code Ann. §
49-13-132. Complying with Tenn. Code Ann. § 49-13-132 in no way “‘stands as an
obstacle’” to the accomplishment of FERPA’s purpose of protecting student data. Lake,
405 S.W.3d at 56 (quoting Williamson, 562 U.S. at 330). The standard protective
mechanism of FERPA—prior parental consent—does not apply to the directory
information that is the subject of Tenn. Code Ann. § 49-13-132. See 20 U.S.C. §
1232g(b)(1). Disclosing the information in accordance with Tenn. Code Ann. § 49-13-
132 does not conflict with FERPA; rather, it is entirely consistent with FERPA.

       In the absence of a conflict between the state and federal statutes, Chapter 307 can
be preempted only by field preemption—where “federal regulation of a field is ‘so
pervasive as to make reasonable the inference that Congress left no room for the States to
supplement it.’” Leggett, 308 S.W.3d at 854 (quoting Rice, 331 U.S. at 230). The
respondents cite nothing in FERPA evidencing Congressional intent to legislate the entire
field of student information. FERPA works by conditioning the receipt of federal
funding on compliance with “requirements relating to the access and disclosure of student
educational records.” Gonazaga, 536 U.S. at 278. The federal statute “does not by itself
forbid any state to disclose anything.” Chi. Tribune Co. v. Bd. of Trs. of Univ. of Ill., 680
F.3d 1001, 1004 (7th Cir. 2012). We find no support for a field preemption theory.

       Thus, contrary to the respondents’ argument, Chapter 307 is not preempted by
FERPA. The state statute is mandatory and requires an LEA to provide the requested
directory information to a requesting chartering authority or public charter school.

       2. Ambiguity in statute.

        The respondents’ next argument is that Chapter 307 is ambiguous and requires
interpretation using the legislative history. Specifically, the respondents assert that the
statute is unclear with respect to two issues: whether it allows a separate school district
to obtain the student data and whether the student data may be used for marketing and
recruiting purposes. For the reasons detailed in the discussion below, we determine that
there is no ambiguity in Chapter 307 and, therefore, we need not consult the legislative
history.

       A. Separate school district argument.

      The respondents assert that Chapter 307 allows the release of directory
information to schools operating within the school district (in this case, MNPS), not to a

                                            -7-
separate school district like the ASD. They urge the court to consult the legislative
history to confirm the correctness of this interpretation. We look first to the language of
the statute, which states, in pertinent part:

        To effectuate § 49-13-113, within thirty (30) days of receiving a request
        from a chartering authority or a public charter school approved to operate
        one (1) or more schools in the district, an LEA shall provide at no cost a
        list of student names, ages . . . .

Tenn. Code Ann. § 49-13-132 (emphasis added). Chapter 307 requires an LEA to release
directory information to “a chartering authority or a public charter school approved to
operate one (1) or more schools in the district.” The respondents’ argument ignores the
“chartering authority” part of the statute, which is the language that authorizes the ASD
to receive the directory information. The ASD is a chartering authority. Tenn. Code
Ann. § 49-13-104(5).

        We apply the interpretive rule known as the “rule of the last antecedent” to help us
construe Chapter 307. This rule provides that “‘a limiting clause or phrase . . . should
ordinarily be read as modifying only the noun or phrase that it immediately follows.’” In
re Estate of Tanner, 295 S.W.3d 610, 624 (Tenn. 2009) (quoting United States v. Hayes,
555 U.S. 415, 425 (2009)); see also United States v. Martin, 438 F.3d 621, 631 (6th Cir.
2006); 2A Norman J. Singer & Shambie Singer, SUTHERLAND STATUTORY
CONSTRUCTION § 47.33 (7th ed. 2018 update). While this rule can be overcome by “other
indicia of meaning,” In re Estate of Tanner, 295 S.W.3d at 624, it is applicable “where no
contrary intention appears.” SUTHERLAND § 47.33. Moreover, “[a] qualifying phrase
separated from antecedents by a comma is evidence that the qualifier is supposed to apply
to all the antecedents instead of only to the immediately preceding one.” Id.

       The last antecedent rule is not a hard and fast rule of statutory interpretation. As
our Supreme Court has observed, “canons of construction, though helpful, should always
be tested against the other interpretive tools at a court’s disposal.” In re Estate of Tanner,
295 S.W.3d at 624 n.13. Our first and best interpretive tool is the natural and ordinary
meaning of the words used by the legislature. Mills, 360 S.W.3d at 368. We find no
“other indicia of meaning” applicable to our interpretation of Tenn. Code Ann. § 49-13-
132.7 Estate of Tanner, 295 S.W.3d at 624.

      Applying the last antecedent rule to the phrase at issue in this case—approved to
operate one (1) or more schools in the district—we conclude that the legislature intended
7
  The petitioners point out that, under the respondents’ interpretation, only the MNBE could be a
“chartering authority” authorized to request directory information under Chapter 307 because it is the
only “chartering authority” that could be approved to operate a school in the MNBE’s district. But that
interpretation would mean that the legislature intended to require an LEA to share information with itself,
a patently absurd result.
                                                   -8-
for the phrase to modify only “a public charter school” because there is no comma before
the phrase. In accordance with the plain meaning of the statutory language, we construe
Chapter 307 to provide for two types of entities that can request directory information:
(1) a chartering authority, or (2) “a public charter school approved to operate one (1) or
more schools in the district.” Tenn. Code Ann. § 49-13-132. An ASD does not need to
operate a school within the district to be entitled to the information. We find no
ambiguity here.

        B. Marketing and recruiting argument.

       The respondents’ final argument is that the trial court was mistaken in its
interpretation of the phrase “[t]o effectuate § 49-13-113.” Tenn. Code Ann. § 49-13-132.
They assert that § 49-13-113 “outlines the process available once parents are trying to
enroll in the charter school, and Tenn. Code Ann. § 49-13-132 helps effectuate this
voluntary enrollment process.” The respondents refer, in particular, to the lottery process
for charter schools applicable in the event that a charter school has a larger number of
interested students than the school’s capacity.8 Based upon the content of § 49-13-113
(and the legislative history), the respondents aver that “[t]he true intent of Tenn. Code
Ann. § 49-13-132 is to allow the sharing of information in situations where a student is
trying to attend a charter school.”

        The respondents’ argument falls apart upon examination. If a student has
expressed interest in attending a charter school and the charter school has reached the
point of needing to employ the lottery process, the charter school would already have the
student’s basic information. As the petitioners state in their brief: “Respondents have
not explained convincingly why chartering authorities or public charter schools would
need an LEA to provide the student information specified in Chapter 307 ‘to effectuate’
the lottery process . . . since such a process presupposes their already knowing such basic
student information.” Rather, the purpose of the statute is to enable chartering authorities
and public charter schools to gain access to student data to inform eligible students and
their parents/guardians of the available school choices.

       Further indication of this intent is Chapter 307’s requirement that the recipient of
the information establish a policy allowing parents/guardians “to decline to receive
further information from the charter school.” Tenn. Code Ann. § 49-13-132 (emphasis
added). The use of the word “further” contemplates that the charter school will initially
use the list of student names and directory information to contact families with
information about the school.

8
  Tennessee Code Annotated section 49-13-113(b)(3) provides, in part: “If the number of applications
exceeds the capacity of a program, class, grade level, or building, the charter school shall select students
through a lottery.”


                                                   -9-
       Contrary to the respondents’ argument that the directory information was not
intended to be used for marketing and recruiting, the language of Tenn. Code Ann. § 49-
13-132 contains no restrictions on the receiving entity’s use of the information. Once a
chartering authority or charter school receives directory information from an LEA, the
statute does not constrain that entity in the purpose for which it may use the information.
The statute does, however, restrict to whom the information may be released: “Such
information shall not be released by the receiving entity to outside parties without prior
written consent from the parent or eligible student.” Tenn. Code Ann. § 49-13-132.

       We reject the respondents’ argument regarding the petitioners’ ability to use the
requested information for marketing and recruiting. The statute is not ambiguous on this
point and, therefore, there is no need to consult the legislative history.

       In sum, Tenn. Code Ann. § 49-13-132 describes a ministerial duty, not a
discretionary action, for an LEA receiving a request from a chartering authority or a
public charter school approved to operate a school(s) in the district. We affirm the trial
court’s decision to issue the writ of mandamus.

                                      CONCLUSION

      The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellants, Metropolitan Nashville Board of Public
Education, and Dr. Shawn Joseph, Director of Schools, Metropolitan Nashville Public
Schools, for which execution may issue if necessary.


                                                   ________________________________
                                                   ANDY D. BENNETT, JUDGE




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