Tennessee Attorney General Questions State's Law on Charter Schools' Use of Foreign Staff

An opinion by the attorney general of Tennessee challenges a section of a state law adopted in July 2012 that allows a charter school authorizer to reject an application or revoke a charter if the percentage of school staff using certain nonimmigrant foreign worker visa programs exceeds 3.5 percent.

The October 8, 2012,  opinion states that the rationale for using 3.5 percent as the benchmark “is not readily apparent” and that the law provides “no apparent rational basis for applying the limitation to charter schools and not to public schools generally.”

Calling the law “constitutionally suspect,” the opinion states that aliens are entitled to equal protection unless there is a “compelling state interest justifying discrimination.” Even so, the U.S. Supreme Court has recognized an exception that allows for exclusion of “aliens from positions intimately related to the process of democratic self-government,” according to the opinion. The opinion notes that U.S. Supreme Court found that the exception applied for a New York law that excluded “aliens who had not declared an intent to become citizens” from employment as public school teachers. The opinion notes that the Tennessee law involves all school staff, not just teachers.

The opinion was requested by Tennessee’s governor, who announced on May 2, 2012, that the bill restricting foreign interests in charter schools would go into law without his signature. The law was one of two passed by the state legislature in 2012 that addressed charter schools, including transparency requirements.