Gary Humble
Gary Humble is the Founder and Chairman of the Board of Tennessee Stands, an organization working to secure liberty and hold elected officials accountable to the Constitution through legislation, litigation, and education. Follow Gary @garyhumble and visit www.tennesseestands.org.
The abrogation of rights by rulemaking.
A couple of weeks ago, we tried to answer the question of many homeschool parents as they were registering their students through homeschool umbrella programs in Tennessee. “Why am I being asked the immunization status of my homeschool child?”
The confusion came about because of the passage this year of HB252 by Rep. Jody Barrett which became effective on April 28, 2023 and purports to remove any immunization requirements for homeschool students.
The language of the bill is simple and states the following:
And the definition of “home school” in § 49-6-3050(a)(1) is quite simple. It states:
So then, how is it that new rules promulgated by the TN Department of Education (TNDOE) set to take effect on 8/15/2023 still require homeschool students registered under church-related school umbrella programs to submit to the same immunization requirements of public schools? (See rule 0520-07-02-.05(3)(e) and on page 81 of the document).
Well, this is where the process of rulemaking comes in. There are laws passed by the state legislature. And then there are the rules (which have the force of law) that are promulgated by the administrative (executive) departments to enforce those laws. The problem is that the rules are left up to the interpretation of the administrative attorneys and may not necessarily represent the legislative intent of the laws that were passed.
Meaning, your rights are always subject to interpretation.
The argument provided by the general counsel for the TNDOE as to why the rule still requires immunization is this:
This interpretation of § 49-6-3050 is unfortunate and seemingly unrepresentative of both the legislative intent of HB252 and the definition of a home school “affiliated” with a church-related school. Rep. Jody Barrett who sponsored and passed HB252 provided a robust rebuttal to this argument, and in part states the following:
I have to say, I both appreciate Rep. Barrett’s response and wholeheartedly agree. The TNDOE seems to be more interested in getting into the weeds of making technicalities out of these legal definitions instead of taking into account the practical nature of how these laws actually play out in the real world.
The fact is that in promulgating these rules, the TNDOE has some interpretive discretion and could have opted to preserve the rights and privacy of homeschool parents in their rulemaking process. Instead, they opted to take an approach that both stretches the boundaries of the legal definition of “home school” and obfuscates the legislative intent behind the passage of HB252.
This is a poignant example that we must all take note of. Advocating for policy with your elected legislators is not the end of the line when it comes to protecting liberty. Watchdog groups like Tennessee Stands are also watching how departments under the executive branch administer these rules in practice.
Please know that we are seeking a rule review on this issue in hopes to see a favorable result without the need for more legislation in 2024. We do believe that the laws now currently on the books provide for the rights of homeschool families to be free from state immunization requirements.
Which leads to this point. Understand that the TNDOE exists under the executive branch of our state government. Who do you suppose is the Chief Executive of that branch of government in the state of Tennessee? Yep. Governor Bill Lee.
Now imagine with me that the Florida Department of Education was promulgating a rule to require the immunization status of homeschool students in the state of Florida despite a new law that passed providing to the contrary. What do you think Governor Ron DeSantis would do?
But alas…we are in Tennessee.
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Gary Humble
Gary Humble