1

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 7, 2023 Session

PARENTS’ CHOICE TENNESSEE ET AL. v. JASON GOLDEN, IN HIS 

OFFICIAL CAPACITY AS SUPERINTENDENT OF WILLIAMSON 

COUNTY SCHOOLS ET AL.

Appeal from the Chancery Court for Williamson County

No. 22CV-51642 Michael Binkley, Judge

___________________________________

No. M2022-01719-COA-R3-CV

___________________________________

Parents, on behalf of their children who are public school students, and an 

education-focused parents’ rights organization brought suit against the Williamson County 

Board of Education, arguing that the Board’s adoption and implementation of a particular 

curriculum violates Tennessee law. The Plaintiffs argue the curriculum violates a state law 

restricting the use of Common Core textbooks and instructional materials in public schools 

and violates another state law that bars the teaching of certain prohibited concepts in public 

schools. The School Board moved to dismiss. The trial court granted the motion on two 

justiciability grounds. The trial court concluded that the parents and the parents’ rights 

organization lacked standing to maintain either claim. The trial court also concluded that 

the Plaintiffs were required to exhaust administrative remedies with regard to their 

prohibited concepts claim and had not done so. The Plaintiffs appealed. With the exception 

of a family that left the county public school system and has not expressed in their pleadings 

an intent to return, we conclude that trial court erred in finding the Plaintiffs lacked 

standing. We affirm the trial court’s dismissal of the prohibited concepts claim for failure 

to exhaust administrative remedies. We reverse, however, the dismissal of the Plaintiffs’ 

Common Core claim and remand for further proceedings. 

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

in Part; Reversed in Part; Case Remanded

JEFFREY USMAN, J., delivered the opinion of the court, in which ANDY D. BENNETT and 

W. NEAL MCBRAYER, JJ., joined.

Larry L. Crain and Emily Castro, Brentwood, Tennessee, for the appellants, Jennifer Doe, 

J.L., P.J.L., Parents’ Choice Tennessee, and Katherine Roe.

04/18/2024
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Lisa M. Carson, Franklin, Tennessee, for the appellee, the Williamson County Board of 

Education.

OPINION

I.

In 2020, the Williamson County Board of Education adopted the Wit & Wisdom 

curriculum for Williamson County public schools. This curriculum was implemented by 

principals and teachers in Williamson County public schools. In July 2022, P.J.L. and J.L., 

who are the parents of a minor child, and the organization Parents’ Choice Tennessee1filed 

suit. They brought suit against Jason Golden, in his official capacity as Superintendent of 

Williamson County Schools, Dave Allen, in his official capacity as Assistant 

Superintendent of Teaching Assessment, the Williamson County Board of Education (the 

“School Board”), and Penny Schwinn, in her official capacity as Commissioner of 

Education. An Amended Complaint was filed September 2022. The Amended Complaint 

added as Plaintiffs C.L., who is the minor child of P.J.L. and J.L., Jennifer Doe and her 

minor children A.B. and B.B., and Katherine Roe and her minor children C.D. and D.D. 

The Parents (P.J.L., J.L., Jennifer Doe, and Katherine Roe) brought claims on behalf of 

their respective children. 

In their Amended Complaint, the Plaintiffs (the Parents on behalf of their children 

and Parents’ Choice) did not seek monetary damages but instead sought declaratory and 

injunctive relief. The Plaintiffs essentially asserted four violations of law. One, the 

Plaintiffs asserted that the adoption and implementation of the Wit & Wisdom curriculum 

violated Tennessee Code Annotated section 49-6-1019,

2 which prohibits the teaching of 

 

1 According to the Plaintiffs’ Amended Complaint, 

Plaintiff, Parents’ Choice Tennessee (“Parents’ Choice”), is a member advocacy 

organization, and an incorporated nonprofit corporation based in Franklin, Tennessee. It is 

comprised of over 1,400 parents, grandparents and stakeholders who reside throughout 

Williamson County, the State of Tennessee and the nation. Parents’ Choice was organized 

and incorporated for the express purpose of representing and protecting the parents of 

Williamson County schoolchildren of all ages in grades kindergarten – 12th grade and their 

children from harmful, unlawful and age-inappropriate content. Parents’ Choice was 

founded, in large part, to advocate on behalf of Williamson County parents in response to 

the WCBOE’s adoption and implementation of Wit & Wisdom. Its goal is to advocate on 

behalf of its members for wholesome values honored in schools; to foster parental input in 

what is being taught to their members’ children; and to intervene on behalf of its members

to advocate for parental rights to safeguard and protect children from harmful and unlawful 

content in childhood learning curriculum.

2 Tenn. Code Ann. section 49-6-1019 provides as follows:
3

certain concepts in Tennessee public schools (“Prohibited Concepts Claim”). Two, the 

Plaintiffs also asserted that adoption and implementation of the Wit & Wisdom curriculum 

 

(a) An LEA or public charter school shall not include or promote the following concepts as 

part of a course of instruction or in a curriculum or instructional program, or allow teachers 

or other employees of the LEA or public charter school to use supplemental instructional 

materials that include or promote the following concepts:

(1) One (1) race or sex is inherently superior to another race or sex;

(2) An individual, by virtue of the individual’s race or sex, is inherently privileged, racist, 

sexist, or oppressive, whether consciously or subconsciously;

(3) An individual should be discriminated against or receive adverse treatment because of 

the individual’s race or sex;

(4) An individual’s moral character is determined by the individual’s race or sex;

(5) An individual, by virtue of the individual’s race or sex, bears responsibility for actions 

committed in the past by other members of the same race or sex;

(6) An individual should feel discomfort, guilt, anguish, or another form of psychological 

distress solely because of the individual’s race or sex;

(7) A meritocracy is inherently racist or sexist, or designed by a particular race or sex to 

oppress members of another race or sex;

(8) This state or the United States is fundamentally or irredeemably racist or sexist;

(9) Promoting or advocating the violent overthrow of the United States government;

(10) Promoting division between, or resentment of, a race, sex, religion, creed, nonviolent 

political affiliation, social class, or class of people;

(11) Ascribing character traits, values, moral or ethical codes, privileges, or beliefs to a race 

or sex, or to an individual because of the individual’s race or sex;

(12) The rule of law does not exist, but instead is a series of power relationships and 

struggles among racial or other groups;

(13) All Americans are not created equal and are not endowed by their Creator with certain 

unalienable rights, including, life, liberty, and the pursuit of happiness; or

(14) Governments should deny to any person within the government’s jurisdiction the 

equal protection of the law.

(b) Notwithstanding subsection (a), this section does not prohibit an LEA or public charter 

school from including, as part of a course of instruction or in a curriculum or instructional 

program, or from allowing teachers or other employees of the LEA or public charter school 

to use supplemental instructional materials that include:

(1) The history of an ethnic group, as described in textbooks and instructional materials 

adopted in accordance with part 22 of this chapter;

(2) The impartial discussion of controversial aspects of history;

(3) The impartial instruction on the historical oppression of a particular group of people 

based on race, ethnicity, class, nationality, religion, or geographic region; or

(4) Historical documents relevant to subdivisions (b)(1)-(3) that are permitted under § 49-

6-1011.

(c) If the commissioner of education finds that an LEA or public charter school knowingly 

violated this section, then the commissioner shall withhold state funds, in an amount 

determined by the commissioner, from the LEA or public charter school until the LEA or 

public charter school provides evidence to the commissioner that the LEA or public charter 

school is no longer in violation of this section.
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violated the Parents’ substantive due process rights to control the upbringing of their 

children in violation of the Fourteenth Amendment to the United States Constitution

(“Constitutional Claim”). Three, the Plaintiffs asserted that through the implementation of 

the Wit & Wisdom curriculum that the School Board violated the prohibition under 

Tennessee Code Annotated section 49-6-2206(b)(2)(A)3 on the use of Common Core 

textbooks and materials (“Common Core Claim”). Four, the Plaintiffs alleged that 

Commissioner Schwinn violated Tennessee Code Annotated section 49-6-2202(b)(5)4 by 

placing Wit & Wisdom, which allegedly is a Common Core curriculum, on the approved 

list (“Approval List Claim”).

In their 187-page Amended Complaint, the Plaintiffs examine multiple texts and 

materials utilized in Williamson County public schools as part of the Wit & Wisdom 

curriculum. The Plaintiffs address what they assert are the philosophies and goals 

underlying the curriculum, including asserting that the curriculum teaches critical race 

theory. The Plaintiffs in their Amended Complaint address how the adoption and 

implementation of the Wit & Wisdom curriculum adversely impacted the minor children 

C.L., A.B., B.B., C.D., and D.D. For example, the Plaintiffs asserted that the curriculum 

caused psychological injuries to the children including anxiety, stress, and race-based guilt. 

For the latter, the Plaintiffs allege that the curriculum is designed to foster a sense of guilt 

based upon past actions of other persons who are of the same race. The Plaintiffs contend 

that the curriculum succeeded in achieving this aim. The Plaintiffs also asserted the 

curriculum fostered, in violation of Tennessee law, certain values that were contrary to 

those they endeavor to instill in their children; for example, they allege that the curriculum 

taught children to judge persons based upon the color of their skin. The Plaintiffs also 

alleged educational harms in terms of learning regression and lack of educational 

advancement. For example, some of the children allegedly experienced a diminishment in 

 

3 Tennessee Code Annotated section 49-6-2206(b)(2)(A) provides as follows: 

A teacher or principal in a public school of this state shall not use or permit to be used in 

the person’s school, whether as a supplement to the LEA’s or school’s adopted textbooks 

and instructional materials or otherwise, textbooks or instructional materials created to 

align exclusively with the Common Core State Standards or that are marketed as Common 

Core textbooks or materials.

4 Tennessee Code Annotated section 49-6-2202(b)(5) provides as follows:

The commission shall not publish a list of, or recommend that the state board of education 

approve for use in the public schools of this state, textbooks or instructional materials 

created to align exclusively with the Common Core State Standards or that are marketed 

as Common Core textbooks or materials. The state board shall not approve for use in the 

public schools of this state textbooks or instructional materials created to align exclusively 

with the Common Core State Standards or that are marketed as Common Core textbooks 

or materials.
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reading skills in response to the curriculum. The Plaintiffs’ Amended Complaint addresses 

how particular texts and materials impacted particular children and caused these injuries. 

Within a day of filing their extensive Amended Complaint in September 2022, the 

Plaintiffs non-suited their claims against Commissioner Schwinn. Later that same month, 

the remaining Defendants, which included Messrs. Golden and Allen and the School 

Board, filed a motion to dismiss the Plaintiffs’ suit. The Defendants advanced multiple 

arguments in support of dismissal. One, the Defendants argued that the Plaintiffs lacked 

standing to bring suit; therefore, the case was non-justiciable. Two, the Defendants argued 

that the Plaintiffs’ suit raised a political question; therefore, the case was non-justiciable. 

Three, with regard to the Prohibited Concepts Claim, the Defendants argued that the 

Plaintiffs were required to exhaust administrative remedies and that they had failed to do

so. Therefore, they argued, the Prohibited Concepts Claim was non-justiciable. Four, the 

Defendants argued that neither Tennessee Code Annotated section 49-6-1019 nor

Tennessee Code Annotated section 49-6-2206(b)(2)(A), which were the statutory bases for 

the Plaintiffs’ Prohibited Concepts Claim and Common Core Claim respectively, provide 

a private right of action. Therefore, the Plaintiffs could not maintain their suit which was 

predicated upon a violation of these statutes by the School Board. Five, the Defendants 

argued that the Plaintiffs’ Constitutional Claim failed because no constitutional right had 

been violated. Six, the Defendants noted that the Approval List Claim only applied to 

Commissioner Schwinn and that she had been voluntarily dismissed by the Plaintiffs from 

the suit. Because the Approval List Claim was neither stated against nor applicable to the 

remaining Defendants, they sought dismissal. Seven, the Defendants argued that the 

naming of Messrs. Golden and Allen in their official capacities was redundant because suit 

was already being brought against the School Board. Accordingly, the Defendants argued 

that any claims against Messrs. Golden and Allen should be dismissed.

In November 2022, the Plaintiffs non-suited their claims against Messrs. Golden 

and Allen. This left the School Board as the only remaining defendant. The Plaintiffs also 

filed a response in opposition to the Motion to Dismiss. Therein, they did not dispute that 

the Approval List Claim was only filed against Commissioner Schwinn and had been 

effectively dismissed as a result of non-suiting their claim against Commissioner Schwinn. 

The Plaintiffs did, however, argue in support of all of their remaining claims against the 

School Board including their Prohibited Topics Claim, Constitutional Claim, and Common 

Core Claim. 

In December 2022, the trial court issued its Memorandum and Opinion, granting the 

School Board’s motion to dismiss based upon the Plaintiffs’ case being non-justiciable. In 

reaching this conclusion, the trial court addressed two justiciability issues. One, the trial 

court concluded that the Plaintiffs lacked standing. Specifically, the trial court determined 

that the Parents lacked standing because their children had not suffered any injuries distinct 

from any other child in the Williamson County public schools. Because its members, the 

Parents, lacked standing, the trial court concluded that Parents’ Choice did not have 
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organizational standing. Two, the trial court also addressed exhaustion of administrative 

remedies. The trial court noted that the School Board had argued in relation to the 

Plaintiffs’ Prohibited Concepts Claim that the Plaintiffs were required to exhaust their 

administrative remedies. The trial court agreed with the argument. While only 

substantively addressing the Prohibited Concepts Claim, the trial court, however, stated in 

its decision that “[b]ecause these procedures were not exhausted prior to filing suit, as an 

alternate ruling, the Court also DISMISSES the case on this ground.”

The Plaintiffs appealed the dismissal of their suit. They reference three of their 

claims in their briefing on appeal, their Prohibited Concepts Claim, the Common Core 

Claim, and the Constitutional Claim. They do not address their Approval List Claim, which 

has been waived. On appeal, the Plaintiffs argue that their case is justiciable, and the trial 

court erred in concluding to the contrary. The Plaintiffs argue that the Parents have standing 

to maintain an action on behalf of their children, who they contend suffered distinct and 

palpable injuries. Because the Parents have standing, the Plaintiffs contend that Parents’ 

Choice has organizational standing. The Plaintiffs also argue that the exhaustion 

requirement is not mandatory as to the Parents and that requiring them to exhaust would 

be futile. In addition to defending the bases of the trial court’s grant of dismissal, standing 

and exhaustion of administrative remedies, the School Board also renews its argument on 

appeal as to three issues that were not ruled upon by the trial court. One, the School Board 

argues that the case is non-justiciable under the political question doctrine. Two, the School 

Board asserts that there is no private right of action to pursue either the Plaintiffs’ 

Prohibited Concepts Claim or Common Core Claim. Three, addressing the Plaintiffs’ 

Constitutional Claim, the School Board contends that the Plaintiffs have not actually 

asserted a claim for a violation of a constitutional right. 

II.

Before turning our attention to the Plaintiffs’ Prohibited Concepts Claim and 

Common Core Claim, which are the focus of the appeal in this case, we briefly touch upon 

the Plaintiffs’ Constitutional Claim. The Plaintiffs alleged in their Amended Complaint 

that the School Board’s adoption and use of the Wit & Wisdom curriculum violated the 

Fourteenth Amendment of the United States Constitution. The School Board argues that 

the Plaintiffs have not actually asserted a claim for a violation of constitutional rights. The 

Plaintiffs address this issue in their briefing on appeal. In doing so, however, the Plaintiffs’ 

arguments appear to only actually advance a contention that the School Board violated 

statutory provisions under the Tennessee Code, rather than alleging an actual constitutional 

violation by the School Board. 

Attempting to understand the Plaintiffs’ Due Process claim and their contention that 

the trial court’s dismissal thereof was in error, members of the court asked multiple 

questions during the oral argument of this case in November 2023 related to the 

Constitutional Claim in the Plaintiffs’ Amended Complaint. In responding to these
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questions, the Plaintiffs’ waived their Due Process Claim.5 Accordingly, we treat the

Constitutional Claim in the Plaintiffs’ Amended Complaint as having been waived. 

III.

Turning to the Plaintiffs’ remaining claims, the Prohibited Concepts Claim and 

Common Core Claim, the parties contest justiciability in their briefing, dueling over

standing, the political question doctrine, and exhaustion of administrative remedies. See 

Norma Faye Pyles Lynch Fam. Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 203 (Tenn. 

2009) (listing Tennessee’s justiciability doctrines as “(1) the prohibition against advisory 

opinions, (2) standing, (3) ripeness, (4) mootness, (5) the political question doctrine, and 

(6) exhaustion of administrative remedies” (footnotes omitted)); see also West v. Schofield, 

468 S.W.3d 482, 490 (Tenn. 2015) (setting forth the same list). 

Addressing the basis under the Tennessee Constitution for justiciability limitations 

on the authority of state courts, the Tennessee Supreme Court has observed the following:

The Constitution of Tennessee does not expressly define the powers of the 

Legislative, Executive, or Judicial Branches of government. Richardson v.

Young, 122 Tenn. 471, 493, 125 S.W. 664, 668 (1909). Thus, while Article 

III, Section 2 of the United States Constitution confines the jurisdiction of 

the federal courts to “cases” and “controversies,” the Constitution of 

Tennessee contains no such direct, express limitation on Tennessee’s courts’ 

 

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Judge’s Question: I am trying to understand the separation between your statutory argument and 

your Due Process argument. If I am following your Due Process argument correctly, . . . you are not

claiming a right to be able to control what the school system teaches independently of the statute. You are 

saying the statute is what imposes the limitation. If that is your Due Process argument though, how does 

the Due Process argument exist separately from the statutory argument? I mean isn’t it just it is a Due 

Process violation because it violates the statute? That seems to be what you are asserting. I am struggling 

to follow.

Counsel: Basically, what we are asking is that the court enforce the laws that our legislature has made which 

the laws have been made to say you cannot teach certain concepts.

Judge’s Question: So this is about vindicating the statute? 

Counsel: Yes. We are saying -- we are simply asking for the court to enforce the statute. [Counsel then 

discussed the statutory measures that the Plaintiffs argue were violated]. All we are asking is that these 

laws be followed, and they are not. And so that is where I would say we are going with this lawsuit.

Judge’s Question: You are not asserting, though, an independent substantive due process violation?

Counsel: No. 
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exercise of their judicial power. U.S. Const. art. III, § 2; Tenn. Const. art. I, 

§§ 1-2; Miller v. Miller, 149 Tenn. 463, 484, 261 S.W. 965, 971 (1924) 

(noting that the Constitution of Tennessee does not contain limitations similar 

to those in Article III, Section 2).

Despite the absence of express constitutional limitations on the exercise of 

their judicial power, Tennessee’s courts have, since the earliest days of 

statehood, recognized and followed self-imposed rules to promote judicial 

restraint and to provide criteria for determining whether the courts should 

hear and decide a particular case. These rules, commonly referred to as 

justiciability doctrines, are based on the judiciary’s understanding of the 

intrinsic role of judicial power, as well as its respect for the separation of 

powers doctrine in Article II, Sections 1 and 2 of the Constitution of 

Tennessee.

Tennessee’s courts believed that “the province of a court is to decide, not 

advise, and to settle rights, not to give abstract opinions.” State v. Wilson, 70 

Tenn. 204, 210 (1879); see also Gilreath v. Gilliland, 95 Tenn. 383, 385-86, 

32 S.W. 250, 251 (1895); Prichitt v. Kirkman, 2 Tenn. Ch. 390, 393 (1875). 

Accordingly, they limited their role to deciding “legal controversies.” White 

v. Kelton, 144 Tenn. 327, 335, 232 S.W. 668, 670 (1921). A proceeding 

qualifies as a “legal controversy” when the disputed issue is real and existing, 

see State ex rel. Lewis v. State, 208 Tenn. 534, 536-37, 347 S.W.2d 47, 48 

(1961), and not theoretical or abstract, State v. Brown & Williamson Tobacco 

Corp., 18 S.W.3d 186, 192 (Tenn. 2000); Miller v. Miller, 149 Tenn. at 474, 

261 S.W. at 968; State ex rel. Lewis v. State, 208 Tenn. at 538, 347 S.W.2d at 

48-49, and when the dispute is between parties with real and adverse 

interests. Memphis Publ’g Co. v. City of Memphis, 513 S.W.2d 511, 512 

(Tenn. 1974).

Norma Faye Pyles Lynch Fam. Purpose LLC, 301 S.W.3d at 202-03.

Tennessee’s justiciability doctrines have borrowed from, but are not controlled by,

federal precedent. “Despite the differences between the state and federal constitutions, 

Tennessee courts have consistently found federal precedents to be helpful in addressing 

issues of justiciability and have adopted many of the significant components of federal 

jurisprudence.” Norma Faye Pyles Lynch Fam. Purpose LLC, 301 S.W.3d at 203 n.3. 

However,

[w]hile federal precedent has been helpful in addressing questions of 

justiciability, Tennessee courts are not bound by this precedent, and the 

entirety of the doctrines as applied by federal courts has never been adopted 

wholesale into Tennessee law root and branch. To the contrary, the Tennessee 
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Supreme Court has, more than once, interpreted the Tennessee Constitution 

in a manner that varies from the federal courts’ interpretation of justiciability 

doctrines under Article III of the United States Constitution.

Rutan-Ram v. Tennessee Dep’t of Children’s Servs., No. M-2022-00998-COA-R3-CV, 

2023 WL 5441029, at *6 n.6 (Tenn. Ct. App. Aug. 24, 2023). With this understanding in 

mind, we turn our attention below to each of the justiciability doctrines at issue in the 

present case, addressing standing, the political question doctrine, and the exhaustion of 

administrative remedies. 

A.

The primary basis for the trial court’s dismissal of the Plaintiffs’ case is the Parents’

lack of standing, which it concluded rendered the case non-justiciable. As a result of its 

conclusion that the Parents did not have standing, the trial court also determined that 

Parents’ Choice lacked organizational standing because its members, the Parents, lacked 

standing. The trial court explained its conclusions regarding standing as follows:

In the present case, Parent Plaintiffs are not able to show a distinct and 

palpable injury. Plaintiffs have no distinct injury different from any other 

Williamson County School parent, and they cannot show their children have 

any distinct injury different from any other Williamson County School 

student. The same curriculum is taught to all students in the same grade level. 

The injury is not particularized to the level of a distinct injury with respect 

to standing with respect to Parent Plaintiffs. The same is true for Parent[s’] 

Choice. Parent[s’] Choice would have organizational standing if its members 

were deemed to have standing, but Parent[s’] Choice would not have 

standing on its own. Because Parent Plaintiffs do not have standing, 

Parent[s’] Choice also does not have standing. Accordingly, because none of 

Plaintiffs have standing, this case is to be DISMISSED.

The Plaintiffs contend the trial court erred. They assert the Parents’ children have 

suffered distinct and palpable injuries and that therefore, the Parents have standing to 

maintain suit on behalf of their children. Furthermore, because the trial court’s reason for 

finding no organizational standing for Parents’ Choice was predicated upon the Parents’

lack of standing, the Plaintiffs assert that the trial court also erred with regard to finding no 

organizational standing for Parents’ Choice. The School Board argues in support of the 

trial court’s conclusions as to the lack of standing as to both the Parents and Parents’

Choice. 

Tennessee appellate courts review a trial court’s ruling on a motion to dismiss for 

lack of standing “de novo with no presumption of correctness.” Metro. Gov’t of Nashville 

& Davidson Cnty. v. Tenn. Dep’t of Educ., 645 S.W.3d 141, 147 (Tenn. 2022). When 
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reviewing a ruling upon a motion to dismiss, Tennessee courts are generally “required to 

take the relevant and material factual allegations in the complaint as true.” Lind v. Beaman 

Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011). Furthermore, courts are to liberally 

construe the complaint in favor of the plaintiff. Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn. 

2004). This framework “is equally true with respect to factual allegations regarding 

standing.” Metro. Gov’t of Nashville & Davidson Cnty. v. Tenn. Dep’t of Educ., 645 S.W.3d 

at 147-48. Additionally, the Tennessee Supreme Court has indicated that when considering 

a challenge based upon standing that “[a]t the pleading stage, general factual allegations of 

injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we 

presum[e] that general allegations embrace those specific facts that are necessary to support 

the claim.” Id. at 148 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). 

For conventional constitutional standing in Tennessee courts, a plaintiff must 

establish three elements:

1) a distinct and palpable injury; that is, an injury that is not conjectural, 

hypothetical, or predicated upon an interest that a litigant shares in common 

with the general public; 2) a causal connection between the alleged injury 

and the challenged conduct; and 3) the injury must be capable of being 

redressed by a favorable decision of the court.

Fisher v. Hargett, 604 S.W.3d 381, 396 (Tenn. 2020).6 The question of whether the Parents 

have standing in the present case turns upon the adequacy of the allegation of injury to their 

children. There is no question in the present case that if the injury is sufficient, the 

allegations of causation and redressability connected therewith are also sufficient. 

To determine whether the Plaintiffs have standing to bring this case, we must 

examine the particular allegations of their complaint and evaluate whether they are entitled 

to adjudicate their claims. Id.; Howe v. Haslam, No. M2013-01790-COA-R3-CV, 2014 

WL 5698877, at *6 (Tenn. Ct. App. Nov. 4, 2014) (citing Petty v. Daimler/Chrysler Corp., 

91 S.W.3d 765, 768 (Tenn. Ct. App. 2002)). The question of whether a party has standing 

should not be confused with the merits of the claim; accordingly, a weak claim does not 

equate to a lack of standing. Metro. Gov’t of Nashville & Davidson Cnty. v. Tenn. Dep’t of 

Educ., 645 S.W.3d at 148-49. Tennessee courts’ standing analysis is instead directed 

towards determining “‘whether a party has a sufficiently personal stake in a matter at issue 

to warrant a judicial resolution of the dispute,’” barring those whose rights or interests have 

not been affected from bringing suit. Metro. Gov’t of Nashville v. Bd. of Zoning Appeals 

 

6 The Tennessee Constitution confers significantly greater leeway to taxpayers to maintain an action 

in Tennessee state courts based upon challenging illegal expenditures of governmental funds than is 

permitted to taxpayers seeking to invoke the jurisdiction of the federal courts under the United Constitution. 

See generally Rutan-Ram, 2023 WL at *17-21. The Plaintiffs in the present case do not assert that they 

followed the proper procedure for invoking taxpayer standing or that they satisfy the standards thereof. 
11

of Nashville, 477 S.W.3d 750, 755 (Tenn. 2015) (quoting State v. Harrison, 270 S.W.3d 21, 

27-28 (Tenn. 2008)). The stage of the proceedings impacts the extent of the burden 

imposed upon a plaintiff to establish injury, causation, and redressability. Metro. Gov’t of 

Nashville & Davidson Cnty. v. Tenn. Dep’t of Educ., 645 S.W.3d at 149. Where standing 

is raised via a motion to dismiss, as in the present case, the plaintiffs’ “factual allegations 

are presumed to be true and are construed in their favor.” Id. Furthermore, the Tennessee 

Supreme Court has rejected the heightened federal plausibility pleading standard of 

Twombly7

and Iqbal,

8 preserving the requirement that parties need only satisfy Tennessee’s 

traditional liberal notice pleading standard. Webb v. Nashville Area Habitat for Human., 

Inc., 346 S.W.3d 422, 426 (Tenn. 2011).

As stated by the Tennessee Supreme Court, “[i]n general, courts are precluded ‘from 

adjudicating an action at the instance of one whose rights have not been invaded or 

infringed.’” Fannon v. City of LaFollette, 329 S.W.3d 418, 424 (Tenn. 2010) (quoting Am. 

C.L. Union of Tenn.v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006)). Furthermore, 

“[s]tanding . . . may not be predicated upon an injury to an interest that the plaintiff shares 

in common with all other citizens.” ACLU of Tenn. v. Darnell, 195 S.W.3d at 620. Such 

injuries, termed generalized grievances, are those that are “plainly undifferentiated and 

common to all members of the public.” United States v. Richardson, 418 U.S. 166, 176-

77 (1974) (citation omitted); see also Rutan-Ram, 2023 WL 5441029, at *12 (describing a 

generalized grievance as an injury where there is no separation between a plaintiff and the 

public at large — where the injury is common among all citizens).

Here, the trial court erred in its application of the generalized grievance concept in 

two important respects. One, the trial court errantly viewed an injury being suffered by a

large number of persons as necessarily meaning that any suit in connection therewith would 

be a claim based upon a generalized grievance. Two, the trial court failed to consider the 

Parents’ specific allegations of injuries sustained by their children and whether those 

allegations advanced distinct and palpable injuries sufficient to satisfy the constitutional 

injury requirements to maintain standing. 

As to the first, the trial court’s ruling appears to be grounded in a conclusion that an 

injury suffered by a large number of persons renders a suit in connection therewith a nonjusticiable suit based upon a generalized grievance. However, “[t]he fact that an injury 

may be suffered by a large number of people does not of itself make that injury a 

nonjusticiable generalized grievance. The victims’ injuries from a mass tort, for example, 

are widely shared, to be sure, but each individual suffers a particularized harm.” Spokeo, 

Inc. v. Robins, 578 U.S. 330, 339 n.7 (2016). Simply stated, “an injury shared by a large 

number of people is nonetheless an injury.” Ctr. for Auto Safety v. Nat’l Highway Traffic 

Safety Admin., 793 F.2d 1322, 1324 (D.C. Cir. 1986). A contrary understanding is in error, 

 

7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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for “[t]o deny standing to persons who are in fact injured simply because many others are 

also injured, would mean that the most injurious and widespread . . . actions could be 

questioned by nobody.” United States v. Students Challenging Regul. Agency Procs. 

(SCRAP), 412 U.S. 669, 688 (1973). To the extent that the trial court concluded that the 

parents could not have standing because all Williamson County children were injured by 

the School Board’s actions, which seems to have been the central basis of its decision, it

misapplied the generalized grievance limitation on standing. 

This does not, however, end our inquiry. The proper question is not whether many 

other Williamson County children were injured but instead whether the Parents alleged 

specific injuries to their children that are sufficient to meet the constitutional demands of 

constituting an injury for purposes of standing. As noted above, to satisfy the injury 

requirement for conventional standing under the Tennessee Constitution, the plaintiff must 

plead “a distinct and palpable injury; that is, an injury that is not conjectural, hypothetical, 

or predicated upon an interest that a litigant shares in common with the general public.” 

Fisher, 604 S.W.3d at 396. By negating the possibility of such an injury to the Plaintiffs’ 

children based upon the trial court’s conclusion that other Williamson County students also 

had been injured, the trial court did not grapple with the particular allegations of injuries 

by the Plaintiffs as to their respective children. 

The Amended Complaint contains allegations related to five children. C.L. is the 

minor child of J.P.L. and P.L. A.B. and B.B. are the minor children of Jennifer Doe. C.D. 

and D.D. are the minor children of Katherine Roe. Before delving more deeply into this 

matter, we note that C.L. is differently situated than the other four children, who were and 

are students in the Williamson County public schools. C.L.’s parents withdrew him from 

the Williamson County School System prior to the first grade and placed him in a private 

school where he has evidently adjusted quite well. We have been cited to no provisions of 

the Amended Complaint that indicate that C.L.’s parents intend to return C.L. to the 

County’s public schools, nor are we aware of any such provisions in the Amended 

Complaint.9 In other words, C.L. is not currently a student in the Williamson County public 

schools, and the Plaintiffs have not in their Amended Complaint asserted any intent or 

desire to return him to the Williamson County public schools should the County’s alleged 

illegalities be addressed. 

With regard to the justiciability of claims on behalf of C.L., this is problematic for 

the Plaintiffs. The Plaintiffs have not crafted an Amended Complaint that seeks damages 

for past injuries but instead they are focused on prospective relief in the form of a 

declaratory judgment and injunctive relief. Given the facts as pled by the Plaintiffs, we 

 

9 The Plaintiffs’ brief on appeal states that C.L., “but for the unlawful actions of the Defendants, 

would have continued his education as a first grade student in the Williamson County school system,” citing 

two paragraphs of the Amended Complaint. Assuming those two paragraphs can carry the weight of this 

assertion, which is less than certain, there is still no assertion in the Amended Complaint that his parents 

plan to return C.L. to Williamson County public schools. 
13

fail to discern how the Plaintiffs’ prospective-focused judicial relief claims on behalf of 

C.L. are justiciable. Pursuant to the Amended Complaint, C.L. is not a public-school

student in Williamson County, and there is no indication in the Amended Complaint of an 

intent or desire to return to Williamson County public schools should the alleged illegality 

be removed. This seemingly places C.L. in the generalized grievance category, seeking to 

require the School Board to follow the cited laws while not actually being affected by that 

outcome. The Plaintiffs do not grapple with the question of how C.L.’s status as a private 

school student who has not expressed a desire or intent to return to Williamson County 

public school affects the parties’ standing to bring claims on his behalf. With the trial court 

having found claims on behalf of C.L. to be non-justiciable, the failure to address this 

significant complication is problematic for the Plaintiffs in seeking to resuscitate claims on 

behalf of C.L. against the School Board. See Sneed v. Bd. of Prof’l Responsibility of 

Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or 

appellate, to research or construct a litigant’s case or arguments for him or her, and where 

a party fails to develop an argument in support of his or her contention or merely constructs 

a skeletal argument, the issue is waived.”). Accordingly, we find no error in the trial court’s 

conclusion that claims on behalf of C.L. are non-justiciable or with its dismissal of those 

claims. 

Allegations related to the other four children A.B., B.B., C.D., and D.D. do not 

present the same complications as C.L. They were and are students in Williamson County 

public schools. We turn next to considering whether their alleged injuries satisfy the 

constitutional requirements for an injury for purposes of standing under the Tennessee 

Constitution. 

Here, the Plaintiffs alleged that each of these children was taught, in violation of 

Tennessee law, using a Common Core curriculum and a curriculum that taught multiple 

prohibited concepts. The Plaintiffs in their Amended Complaint addressed both the alleged 

impact of the curriculum generally and the impact of particular prohibited concepts

allegedly being taught. The Plaintiffs’ Amended Complaint connected these violations 

with injuries allegedly suffered by the individual children A.B., B.B., C.D., and D.D. The 

Plaintiffs alleged that, as result of the School Board’s violation of Tennessee law, their 

children experienced psychological harm including anxiety, stress, and race-based guilt. 

The Parents also assert that they are trying to imbue their children with certain values which 

allegedly are being undermined by the use of a Common Core curriculum and the teaching 

of prohibited concepts in violation of Tennessee law. Additionally, the parents assert that 

their children’s educational development, for example advancement in terms of reading 

ability, is being harmed by the use of a Common Core curriculum and inclusion of 

prohibited concepts in violation of Tennessee law. In other words, the Plaintiffs here are 

not merely alleging that the School Board’s curriculum decisions were unwise or even 

illegal, but instead are alleging that their children experienced actual psychologically harm, 

had their values undermined, and had their educational advancement hampered by the 

School Board’s use of a Common Core curriculum and by teaching prohibited concepts. 
14

These alleged injuries are, according to the Plaintiffs’ Amended Complaint, directly related 

to the alleged illegalities through a curriculum that allegedly teaches prohibited concepts 

in violation of section 49-6-1019 and adopts a Common Core curriculum in violation of 

section 49-6-2206(b)(2)(A). 

The injuries alleged by the Plaintiffs on behalf of their children also appear to be 

akin to the type of harm that the General Assembly was seeking to prevent through the 

adoption of these statutory prohibitions. For example, Tennessee Code Annotated section 

49-6-1019(a)(6) prohibits LEAs from including in their curriculum the concept that “[a]n 

individual should feel discomfort, guilt, anguish, or another form of psychological distress 

solely because of the individual’s race or sex.” The Plaintiffs allege the School Board 

violated this limitation and in doing so has caused their children to experience precisely 

such race-based guilt. 

Here, the individual plaintiffs pled particular facts asserting their children’s injuries

– specifically how certain aspects of the Wit & Wisdom curriculum and the teaching of 

prohibited concepts injured their children through a combination of psychological harm, 

undermining the values taught within their family, and hampering their educational

development. Under the Amended Complaint, these were not hypothetical or theoretical 

injuries, but instead actual, concrete, particularized injuries that have been suffered. That 

there may be many other children who experienced similar harms does not make the

alleged injury any less of a personal injury as to A.B., B.B., C.D., and D.D.

In other words, the Plaintiffs are not upset about the violations of Tennessee law in 

which the children share a generalized grievance with all citizens who may wish to see the

School Board adhere to the law. The Parents are instead alleging that their children are 

personally and actually being directly harmed by the violations of Tennessee law. In the 

context of the statutory violations alleged, these are not generalized grievances but distinct 

and palpable injuries. The trial court did not address any of these allegations. Having 

considered the injuries asserted in the Amended Complaint, we conclude that the trial court 

erred in determining that the Parents lacked standing due to a lack of distinct and palpable 

injuries. 

We note that our determination in this case is intertwined with the stage of the 

proceedings – that is, the context of reviewing the trial court’s grant of a motion to dismiss

based upon lack of standing. We take no view on the question of whether the Plaintiffs’ 

children actually suffered any such injuries. The question before us is not whether the 

Plaintiffs’ children or any other children were actually injured but instead whether,

presuming the allegations of the Amended Complaint to be true and construing the 

allegations in favor of the Plaintiffs, they have adequately alleged injuries sufficient to 

satisfy the minimum constitutional requirements for an injury for purposes of conventional 

standing. See Metro. Gov’t of Nashville & Davidson Cnty. v. Tenn. Dep’t of Educ, 645 

S.W.3d at 149. Nothing in our ruling prevents the School Board from raising a challenge 
15

to Plaintiffs’ standing at a later stage of the proceedings based on the further development 

of facts. 

As for organizational standing, the trial court’s basis for dismissing Parents’ Choice 

for lack of organizational standing was predicated upon the lack of standing of its members, 

the Parents. The trial court’s ruling as to organizational standing followed quite reasonably

from its analysis of the Parents’ standing. See generally ACLU of Tenn., 195 S.W.3d at

626 (noting that to establish organizational standing, an organization must show “(1) its 

members would otherwise have standing to sue in their own right; (2) the interests it seeks 

to protect are germane to the organization’s purpose; and (3) neither the claim asserted, nor 

the relief requested, requires the participation of individual members in the lawsuit”). 

However, because the Parent members do have standing, the trial court’s basis for finding 

lack of organizational standing evaporates. Accordingly, we conclude that the trial court 

erred in determining that Parents’ Choice lacked organizational standing. 

B.

The School Board also contends that the Plaintiffs’ case is non-justiciable under the

political question doctrine. Having determined the Plaintiffs’ case to be non-justiciable due 

to lack of standing, the trial court did not address the School Board’s political question 

argument. In opposition to the School Board’s position, which it renewed on appeal before 

this court, the Plaintiffs argue that the political question doctrine is inapplicable to the 

present case. 

As noted above, the political question doctrine limitation on judicial authority in 

Tennessee is a product of the separation of powers provided for by the Tennessee 

Constitution. See Bredesen v. Tenn. Jud. Selection Comm’n, 214 S.W.3d 419, 434 (Tenn. 

2007). In delineating the broad strokes of what constitutes a political question, Tennessee 

courts have embraced the federal formulation. Id. at 435. The seminal federal case 

examining the political question doctrine is Baker v. Carr, 369 U.S 186 (1962).10 The 

Supreme Court in Baker v. Carr “canvased the field of ‘political question cases to infer 

from them the analytical threads that make up the political question doctrine’ . . . [and]

 

10 See, e.g., El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010) 

(characterizing Baker v. Carr as “the seminal case” of the political question doctrine); Greenham Women 

Against Cruise Missiles v. Reagan, 591 F. Supp. 1332, 1335 (S.D.N.Y. 1984), aff'd, 755 F.2d 34 (2d Cir. 

1985) (“The most authoritative and commonly cited formulation of the political question doctrine is that of 

Justice Brennan in the seminal case of Baker v. Carr.”); Kan. Bldg. Indus. Workers Comp. Fund v. State, 

359 P.3d 33, 42 (Kan. 2015) (“The seminal United States Supreme Court case on the political question 

doctrine is Baker v. Carr.”); Pa. Sch. Boards Ass’n, Inc. v. Commonwealth Ass’n of Sch. Adm’rs, Teamsters 

Loc. 502, 805 A.2d 476, 485 (Pa. 2002) (describing Baker v. Carr as “the seminal case” of the political 

question doctrine). 
16

[f]rom this review of the existing political question jurisprudence”

11 ultimately 

“synthesized the cases” into the six strands of the political question doctrine.12

In addressing the political question doctrine under the Tennessee Constitution in 

relation to separation of powers principles, this court borrowed the handiwork of the United 

States Supreme Court in Baker v. Carr, embracing its six strands:

Prominent on the surface of any case held to involve a political question is 

found [1] a textually demonstrable constitutional commitment of the issue to 

a coordinate political department; or [2] a lack of judicially discoverable and 

manageable standards for resolving it; or [3] the impossibility of deciding 

without an initial policy determination of a kind clearly for nonjudicial 

discretion; or [4] the impossibility of a court’s undertaking independent 

resolution without expressing lack of the respect due coordinate branches of 

government; or [5] an unusual need for unquestioning adherence to a political 

decision already made; or [6] the potentiality of embarrassment from 

multifarious pronouncements by various departments on one question. 

Mayhew v. Wilder, 46 S.W.3d 760, 773 (Tenn. Ct. App. 2001) (quoting Baker, 369 U.S. at 

217). The Tennessee Supreme Court subsequently approved of this court’s formulation

and embraced the same six strands. See Bredesen, 214 S.W.3d at 435.13 

The School Board’s argument in the present case presses upon the second and third 

strands of the political question doctrine, with its primary focus on the third. The argument

advanced is, essentially, that the General Assembly has afforded to local boards of 

education and the Tennessee Department of Education broad discretion and authority to 

make determinations regarding instruction in Tennessee’s schools. Accordingly, the 

Defendant argues Tennessee courts cannot decide whether the statutes adopted by the 

General Assembly have been violated without making their own policy determinations. In 

other words, because the policy-making discretion afforded to the local school boards and 

Tennessee Department of Education is extremely broad, there is no role for judicial review. 

 

11 Michael Teter, Reinvigorating the Judiciary’s Role in Resolving Interbranch Disputes, 2014 Utah 

L. Rev. 897, 902 (2014).

12 Heather P. Scribner, A Fundamental Misconception of Separation of Powers: Boumediene v.

Bush, 14 Tex. Rev. L. & Pol. 90, 121 (2009). 

13 Tennessee’s adoption of the same six strands as embraced by federal courts does not mean that 

the application of these categories will match that of federal courts. Federal authority remains persuasive 

rather than mandatory and what constitutes a political question in Tennessee state courts is ultimately a 

question of the interpretation of the Tennessee Constitution. 
17

The School Board’s argument is ultimately more supportive of a deferential judicial 

approach to reviewing challenges to decisions reached by local school boards and the 

Department of Education14 than it is to warranting a total judicial abdication under the 

political question doctrine. The Plaintiffs’ claims are predicated upon claims of 

transgression of two statutes in which the General Assembly has addressed what may be 

taught in Tennessee public schools. The Plaintiffs allege that the School Board violated

Tennessee Code Annotated section 49-6-1019, which prohibits teaching of certain 

enumerated restricted concepts (the Prohibited Concepts Claim), and Tennessee Code 

Annotated section 49-6-2206(b)(2)(A), which prohibits use of Common Core textbooks 

and instructional materials and those marketed as Common Core (the Common Core 

Claim). In alleging that these statutes have been violated, the Plaintiffs are not inherently 

asking Tennessee courts to make a policy determination as to the substance of what should 

and should not be taught in Tennessee public school classrooms. The Tennessee General 

Assembly has already made that determination. The courts are instead being asked to 

determine whether the School Board transgressed the statutorily imposed prohibitions

crafted by the General Assembly. As for discretion afforded, assuming for purposes of 

argument that the School Board is correct insofar as the zone of discretion afforded to local 

school boards and the Department of Education is as wide as an ocean, there are still shores 

where the water comes to an end, and figuring out where the metaphorical ocean and shore

meet presents a question of statutory interpretation. 

More than a century ago, addressing separation of powers, the Tennessee Supreme 

Court observed that “[t]heoretically, the legislative power is the authority to make, order, 

and repeal, the executive . . . [is the power to] administer and enforce, and the judicial . . .

[is the power to] interpret and apply, laws.” Richardson v. Young, 125 S.W. 664, 668 (Tenn.

1910). State courts have repeatedly rejected arguments invoking the political question 

doctrine in a manner that interferes with the judiciary’s statutory interpretation role. See, 

e.g., Moss v. Bd. of Cnty. Comm’rs for Boulder Cnty., 411 P.3d 918, 922 (Colo Ct. App. 

2015) (citation omitted) (“Interpreting those provisions in no way infringes on the powers 

and duties of other branches of government. . . . Indeed, statutory interpretation is a 

question of law that is traditionally within the role of the judiciary to resolve.”); Office of 

Hawaiian Affairs. v. Kondo, 528 P.3d 243, 251 (Haw. 2023) (rejecting a contention the 

political question doctrine rendered a matter non-justiciable because “[s]tatutory 

interpretation is the judiciary’s forte, central to its mission” and a court engaging in 

statutory interpretation “does not intrude on another governmental branch”); Bedke v.

Ellsworth, 480 P.3d 121, 130 (Idaho 2021) (rejecting an argument for application of the 

political question doctrine, noting that “[i]nterpreting statutes is a fundamental 

responsibility of the judiciary”); N.J. Election Law Enf't Comm’n v. DiVincenzo, 169 A.3d 

1002, 1008 (N.J. App. Div. 2017) (“The question presented here is one of statutory 

 

14 In this case, we are not deciding either that a degree of deference is due to such decision-making 

or the extent to which deference may be due. That question is not before us in the present case; rather, our 

reference here is that School Board’s argument is better addressed to seeking deferential review than it is 

to establishing that this case presents a political question. 
18

interpretation and does not implicate any of the criteria for a nonjusticiable controversy.”); 

Creswick v. Univ. of S.C., 862 S.E.2d 706, 708 (S.C. 2021) (“Contrary to the Attorney 

General’s position that this matter presents a political question, we hold this action involves 

solely a question of statutory interpretation.”). 

The United States Supreme Court has reached the same conclusions as state courts, 

rejecting invocation of the political question doctrine in a manner that invades the role of 

the courts in interpreting statutes. Addressing a case involving the Secretary of Commerce, 

international agreements, Congressional legislation, foreign affairs with Japan, and 

whaling, the United States Supreme Court declined to find the political question doctrine 

to be applicable. See generally Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221 

(1986). The Court explained its reasoning as follows:

[C]ourts have the authority to construe treaties and executive agreements, 

and it goes without saying that interpreting congressional legislation is a 

recurring and accepted task for the federal courts. It is also evident that the 

challenge to the Secretary’s decision not to certify Japan for harvesting 

whales in excess of [International Whaling Commission] quotas presents a 

purely legal question of statutory interpretation. The Court must first 

determine the nature and scope of the duty imposed upon the Secretary by 

the Amendments, a decision which calls for applying no more than the 

traditional rules of statutory construction, and then applying this analysis to 

the particular set of facts presented below. We are cognizant of the interplay 

between these Amendments and the conduct of this Nation’s foreign 

relations, and we recognize the premier role which both Congress and the 

Executive play in this field. But under the Constitution, one of the 

Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk 

this responsibility merely because our decision may have significant political 

overtones. We conclude, therefore, that the present cases present a justiciable 

controversy . . . .

Id. at 230.

Similarly, in Zivotofsky v. Clinton, the United States Supreme Court rejected the 

argument that a plaintiff’s suit to vindicate a “statutory right” created by Congress, “to 

choose to have Israel recorded on his passport as his place of birth,” instead of simply 

Jerusalem, presented a nonjusticiable political question. See Zivotofsky ex rel. Zivotofsky 

v. Clinton, 566 U.S. 189, 195 (2012). The Supreme Court stated:

The existence of a statutory right, however, is certainly relevant to the 

Judiciary’s power to decide Zivotofsky’s claim. The federal courts are not 

being asked to supplant a foreign policy decision of the political branches 

with the courts’ own unmoored determination of what United States policy 
19

toward Jerusalem should be. Instead, Zivotofsky requests that the courts 

enforce a specific statutory right. To resolve his claim, the Judiciary must 

decide if Zivotofsky’s interpretation of the statute is correct, and whether the 

statute is constitutional. This is a familiar judicial exercise.

Id. at 196. The Supreme Court further explained:

Resolution of Zivotofsky’s claim demands careful examination of the 

textual, structural, and historical evidence put forward by the parties 

regarding the nature of the statute and of the passport and recognition powers.

This is what courts do. The political question doctrine poses no bar to 

judicial review of this case.

Id. at 201.

We do not doubt that the interpretation of the statutory provisions that the Plaintiffs 

assert were violated may present challenging questions of interpretation for Tennessee 

courts, but the presence of a difficult question does not usher out the judiciary via the 

political question doctrine. There is a qualitative difference between hard questions and 

political questions. One involves metaphorically rolling up one’s sleeves and getting to 

work as a court; the other involves abandoning the field because the state or federal 

constitution requires the court to do so. Local boards of education and the Department of 

Education may be entitled to deference, perhaps even to a significant degree,15 but the 

political question doctrine does not provide for deference – it demands total abandonment. 

There is a chasm between deference and abdication. However challenging the questions 

raised may ultimately be, it is clear that there are some discernable lines. The Tennessee 

Supreme Court has stated that the political question doctrine will render a case nonjusticiable only “in rare cases”; this is not one of them. See Bredesen, 214 S.W.3d at 434.

C.

As an alternative ground for dismissal, the trial court determined the Plaintiffs were 

required to exhaust their administrative remedies and failed to do so. There is some 

ambiguity in the trial court’s Memorandum and Opinion regarding this ground for 

dismissal. The trial court stated that “[b]ecause these procedures were not exhausted prior 

to filing suit, as an alternate ruling, the Court also DISMISSES the case on this ground.” 

The School Board, however, did not seek dismissal of “the case” based upon failure to 

exhaust administrative remedies. While the School Board sought dismissal of the 

Plaintiffs’ Amended Complaint in its entirety on a number of grounds, the School Board

only pursued dismissal for failure to exhaust as to Prohibited Concepts Claims. As noted 

 

15 As noted above, the question of whether deference should be afforded and if so to what degree 

is not before the court in the present case. 
20

above, the Plaintiffs’ Prohibited Concepts Claim asserts a violation of Tennessee Code 

Annotated section 49-6-1019, which prohibits teaching of certain enumerated restricted 

concepts, whereas the Plaintiffs’ Common Core Claim alleges a violation of Tennessee 

Code Annotated section 49-6-2206(b)(2)(A), which prohibits use of Common Core 

textbooks and instructional materials. In addressing the Plaintiffs’ failure to exhaust 

administrative remedies in its briefing before the trial court, the School Board’s argument 

was framed in connection with the Prohibited Concepts Claim, related solely to that claim, 

and exclusively referenced that claim.

16

 In setting forth the School Board’s argument in 

its Memorandum and Opinion, the trial court expressly noted that the School Board argued 

that the Prohibited Concepts Claim “should be dismissed because the applicable statutory 

and regulatory procedures have not yet been exhausted.” The trial court’s analysis 

regarding failure to exhaust administrative remedies was also tied exclusively to that claim. 

On appeal before this court, the School Board only argues in support of trial court’s 

dismissal as to failure to exhaust remedies in relation to the Prohibited Concepts Claim. 

The School Board does not separately argue that the Common Core Claim is subject to an 

exhaustion of administrative remedies requirement or argue that the trial court’s order 

dismissed the Common Core Claim. Accordingly, while the trial court’s Memorandum 

and Order states that failure to exhaust was an alternative basis for dismissal of “the case,” 

we understand the trial court to have only dismissed the Prohibited Concepts Claim upon 

this basis and not the Common Core Claim. 

Regarding the trial court’s dismissal of the Prohibited Concepts Claim due to failure 

to exhaust administrative remedies, the Plaintiffs argue the trial court erred in dismissing 

on this basis. The Plaintiffs do not either contest the existence of the relevant 

administrative procedures or suggest that they availed themselves of those administrative 

procedures. They concede on both accounts. Rather, they argue that pursuing the

administrative procedures is not mandatory and, in any event, would have been futile. 

Therefore, the Plaintiffs assert that exhaustion of administrative remedies was not required 

for their Prohibited Concepts Claim to be heard by a court. In other words, they contend 

that they may advance this claim in court without first proceeding through the relevant 

administrative process. The School Board disagrees. The School Board argues that the 

trial court properly concluded that the Plaintiffs were required to exhaust their 

administrative remedies and note the Plaintiffs’ concession that they failed to do so.

 

16 The section heading preceding the School Board’s argument before the trial court is expressly 

tied to the Prohibited Concepts Claim, which matches the argument advanced in the section of the 

School’s Board Memorandum in support its motion to dismiss. The heading stated “COUNT I OF THE 

AMENDED COMPLAINT MUST BE DISMISSED BECAUSE THE APPLICABLE STATUTORY 

AND REGULATORY PROCEDURES MUST BE EXHAUSTED BEFORE SEEKING RELIEF IN 

COURT.” Count I set forth the Plaintiffs’ Prohibited Concepts Claim.
21

While distinct conceptually from the ripeness doctrine,17 the requirement of 

exhaustion of administrative remedies functions as a form of procedural ripeness. Where 

justiciability concerns of this variety are present, it is not that the parties cannot ever have

their case heard by a court; rather, it is that a party who has not exhausted her claims has 

not yet followed the prerequisite that unlocks the door to her case being heard in court. 

The Tennessee Supreme Court explained the rationale for requiring exhaustion of 

administrative remedies as follows:

By discouraging premature judicial interference with agency processes, the 

exhaustion doctrine serves several goals. First, it allows an administrative 

agency to function efficiently and to correct its own errors. Second, it 

“allows the agency to develop a more complete administrative record upon 

which the court can make its review.” Third, the doctrine allows agencies to 

take full advantage of their particular expertise in specialized fact-finding, 

the interpretation of contested technical subject matter, and disputes over the 

agency’s regulations. 

Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 236 (Tenn. 2010).

There are important distinctions between exhaustion of administrative remedies 

being mandatory as a matter of law and circumstances where exhaustion is required by a 

court in the exercise of its discretion. The Tennessee Supreme Court has indicated that 

“when exhaustion of administrative remedies is required by statute, the failure to do so will 

deprive the court of subject matter jurisdiction.” Chattanooga-Hamilton Cnty. Hosp. Auth. 

v. UnitedHealthcare Plan of the River Valley, Inc., 475 S.W.3d 746, 758 (Tenn. 2015); see 

also Pickard v. Tenn. Water Quality Control Bd., 424 S.W.3d 511, 523 (Tenn. 2013) (“When 

exhaustion is a clear statutory requirement, ‘exhaustion is an absolute prerequisite for 

relief,’ and failure to exhaust administrative remedies will defeat a reviewing court’s 

subject matter jurisdiction.”). Alternatively, in the absence of a legal mandate, “the 

exhaustion of the administrative remedies doctrine is a matter of judicial discretion” and 

subject to review under an abuse of discretion standard. Ready Mix, USA, LLC v. Jefferson 

Cnty., 380 S.W.3d 52, 64 (Tenn. 2012).

In concluding that exhaustion is mandatory in the present case, the trial court drew 

upon the Department of Education’s regulations that were promulgated with the express 

“purpose . . . to effectuate T.C.A. § 49-6-1019.” Tenn. Comp. R. & Regs. 0520-12-04-.01. 

 

17

“The central concern of the ripeness doctrine is whether the case involves uncertain or 

contingent future events that may or may not occur as anticipated or, indeed, may not occur at all.” B & B 

Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 848 (Tenn. 2010).
22

The trial court determined that, under these regulations, exhaustion of administrative 

remedies is mandatory. 

The Plaintiffs contend that the regulations are not mandatory upon parents of public

school students. We disagree. The regulations promulgated by the Department of 

Education to effectuate Tennessee Code Annotated section 49-6-1019, the prohibited 

concepts law, set out a specific and mandatory administrative procedure. Tenn. Comp. R. 

& Regs. 0520-12-04-.05, entitled “Reporting and Investigating Prohibited Concepts,”

mandates that a complaint about violations of the law must be filed with the LEA or public

charter school in which the allegation(s) arose: 

To file a complaint alleging the Prohibited Concepts are being or have been 

included or promoted in a course of instruction, curriculum and instructional 

program, or in supplemental instructional materials of an LEA or public 

charter school, a complainant must file a complaint with the LEA or public 

charter school in which the allegation(s) arose. An eligible complainant may, 

but is not required to, use the complaint form provided by the LEA or charter 

school, so long as the complaint contains the information required by Section 

0520-12-04-.05(5).

Tenn. Comp. R. & Regs. 0520-12-04-.05(2) (emphasis added). An LEA is defined by 

statute:

“Local education agency (LEA),” “school system,” “public school system,”

“local school system,” “school district,” or “local school district” means any 

county school system, city school system, special school district, unified 

school system, metropolitan school system or any other local public school 

system or school district created or authorized by the general assembly.

Tenn. Code Ann. § 49-1-103(2); see also Tenn. Comp. R. & Regs. 0520-12-04-.02

(referring to Tennessee Code Annotated section 49-1-103 for the definition of LEA for 

purposes of the regulation). 

On appeal, the Plaintiffs argue this regulation is not mandatory as to parents but 

instead only creates a mandatory procedure for an LEA if parents file a complaint. In 

support of this contention, the Plaintiffs note that multiple provisions of the regulations 

related to prohibited concepts impose mandatory duties upon the LEA and not parents.

18

 

 

18 See, e.g., Tenn. Comp. R. & Regs. 0520-12-04-.05(6) (“Upon receipt of a complaint, the LEA or 

public charter school shall determine whether it has the authority to investigate the complaint.” (emphasis 

added)); Tenn. Comp. R. & Regs. 0520-12-04-.05(7) (“Within fifteen (15) calendar days of receiving the 

complaint, the LEA or public charter shall send a letter to the complainant explaining whether it has 

authority to investigate the complaint and will be initiating an investigation.” (emphasis added)); Tenn.

Comp. R. & Regs. 0520-12-04-.05(8) (“Within sixty (60) calendar days of receiving the complaint, the LEA
23

The multitude of mandatory requirements imposed on the LEA under the regulations does 

not make the imposition of the filing requirements upon parents any less mandatory. 

“Complainant” is defined in Section 0520-12-04-.02 as “a current student of the LEA . . .

in which the allegation(s) arose [or] a parent of a current student of the LEA . . . in which 

the allegation(s) arose . . . .” And, it is complainants who “must file a complaint with the 

LEA or public charter school in which the allegation(s) arose.” Tenn. Comp. R. & Regs. 

0520-12-04-.05(2) (emphasis added). 

We note that “administrative rules and regulations” have “the force and effect of law 

in Tennessee.” Swift v. Campbell, 159 S.W.3d 565, 572 (Tenn. Ct. App. 2004). The 

Plaintiffs have not challenged the administrative regulation. Their argument is limited to 

the contention that the regulations are not mandatory upon parents seeking to file a 

complaint regarding the teaching of prohibited concepts but instead are only mandatory 

upon the LEA should parents file such a complaint. Regarding whether the regulations are 

mandatory, we consider only the argument advanced by the Plaintiffs. See Sneed, 301 

S.W.3d at 615 (noting “[i]t is not the role of the courts, trial or appellate, to research or 

construct a litigant’s case or arguments for him or her . . .”). Addressing the argument 

advanced by the Plaintiffs, we find no error in the trial court’s conclusion that the 

Department of Education regulations render exhaustion of administrative remedies 

mandatory for the Parents who are bringing complaints regarding the teaching of prohibited 

concepts in violation of Tennessee Code Annotated Section 49-6-1019.

The Plaintiffs contend that even if the regulations are mandatory that, nevertheless,

an exception is applicable in the present case based upon futility. Tennessee courts have

recognized an exception to the requirement to exhaust administrative remedies based upon 

futility. See, e.g., Bailey, 303 S.W.3d at 236; Freeman Indus., LLC v. Eastman Chem. Co., 

172 S.W.3d 512, 525-26 (Tenn. 2005); Cantrell v. Walker Die Casting, Inc., 121 S.W.3d 

391, 396 n. 3 (Tenn. Ct. App. 2003). Unsurprisingly, for a party seeking to avoid having 

to exhaust administrative remedies where they are mandatory by law, the bar to surmount 

is high. The Tennessee Supreme Court has indicated that “[t]he standard for adjudging the 

futility of resorting to the administrative remedies . . . is whether a clear and positive 

indication of futility can be made. A plaintiff must show that it is certain that his claim will 

 

or public charter school shall determine whether the allegation(s) in the complaint is substantiated.”

(emphasis added)); Tenn. Comp. R. & Regs. 0520-12-04-.05(9) (“The LEA or public charter school shall

issue a written determination stating whether the allegation(s) in the complaint is substantiated. The written 

determination shall be communicated to the complainant and the individual alleged to have included or 

promoted the Prohibited Concept.” (emphasis added)); Tenn. Comp. R. & Regs. 0520-12-04-.05(10) (“If 

an alleged violation is substantiated, the LEA or public charter school shall take appropriate remedial action 

to ensure that the Prohibited Concept(s) is no longer included in a course of instruction, curriculum and 

instructional program, or supplemental instructional materials.” (emphasis added)); Tenn. Comp. R. & 

Regs. 0520-12-04-.05(11) (“The LEA or public charter school shall maintain, for five (5) years, an 

investigative file containing the complaint, the initiating letter, any interview notes, any electronic or 

physical evidence obtained, any other notes maintained by the investigator, and a copy of the written 

determination issued in the matter.” (emphasis added)).
24

be denied on appeal, not merely that he doubts. . . a different decision.” Bailey, 303 S.W.3d 

at 236 (quoting Cantrell, 121 S.W.3d at 396 n.3) (emphasis added). Simply stated, “[t]he 

futility exception is . . . quite restricted and has been applied only when resort to 

administrative remedies is clearly useless.” Bailey, 303 S.W.3d at 236 (quoting Commc’ns 

Workers of Am. v. AT & T, 40 F.3d 426, 432 (D.C. Cir. 1994)); see also Cantrell, 121 S.W.3d 

at 396 n.3. The Tennessee Supreme Court has described the showing necessary for

demonstrating futility as an administrative process that is “pointless” and “a foregone 

conclusion.” Bailey, 303 S.W.3d at 236.

The Plaintiffs raise four arguments which they place under the umbrella of futility. 

One, they contend that the School Board holds a negative and antagonistic view of 

complaints such as theirs. Two, they argue the administrative process is too lengthy. Three, 

they point to challenges for parents in fully understanding what is being taught in their 

children’s schools and being able to adequately demonstrate a violation in a complaint to 

their LEA. Four, the Plaintiffs note because violations appear at each grade-level it could 

be necessary for parents to file multiple complaints. 

As for the first purported basis for futility, the Plaintiffs allege that various School 

Board and Department of Education officials have publicly indicated their approval of the 

Wit & Wisdom curriculum and have stated that the curriculum does not teach Critical Race 

Theory, which is a contention advanced in the Plaintiffs’ Amended Complaint. 

Additionally, the Plaintiffs allege that some other parents who have discussed concerns 

with LEA officials have been “derided and laughed at” and given inadequate information 

about the complaint process, and that some complaints lodged in the past with the LEA

have been downplayed or ignored. The Plaintiffs do not, however, suggest that they have 

been deprived of access to the administrative process or that information is not publicly 

available as to how to access the process. Furthermore, the Plaintiffs concede that the LEA

has made multiple changes in response to complaints from other parents. While the 

Plaintiffs’ allegations may suggest an uphill path, they do not demonstrate a “pointless” 

exercise or a “foregone conclusion.” 

The Plaintiffs also argue that the administrative process is lengthy in support of their 

assertion of futility. The Plaintiffs do not cite to any Tennessee case law wherein parties 

have been relieved of exhaustion requirements on this basis, but instead cite only to Parks 

v. Pavkovic, 536 F. Supp. 296 (N.D. Ill. 1982), a federal district court case from the 

Northern District of Illinois. The present case, however, bears no resemblance to the 

Plaintiffs’ cited authority. There, the court found administrative remedies inadequate 

where the plaintiffs had “done everything possible to obtain speedy administrative review, 

but [had] been unable to do so through no fault of their own. In fact, it [was] the defendants 

who [were] at fault, because of their failure to decide plaintiffs’ administrative appeal 

within the time specified by federal law.” Parks, 536 F. Supp. at 302-03. Here, the 

Plaintiffs have not availed themselves of the administrative process only to be confronted 

by governmental actors who are not adhering to legal requirements as to the timing of the 
25

process set forth in regulations. To the contrary, the Plaintiffs did not pursue the procedural 

remedies that were afforded. They have also failed to explore how the timing of the 

administrative process compares with seeking a judicial remedy or how the timing of the

judicial process itself may be streamlined by a narrowing or clarification of the issues 

through the administrative process.

Furthermore, the Plaintiffs’ timing argument ignores that, at various points in the 

administrative review process, complainants may actually get the resolution they desire

much more quickly. In fact, the regulations themselves provide for possible early 

resolution of complaints. Tennessee Comprehensive Rules & Regulations 0520-12-04-.06, 

entitled “Early Resolution of Complaints,” not only provides for, but encourages, a 

procedure in which the complainant and the LEA can work collaboratively to come to an 

agreed solution to a complaint in the form of a “resolution agreement.” More 

fundamentally, the Plaintiffs’ argument assumes that error will not be admitted by the LEA. 

This runs contrary to a foundational basis of the exhaustion requirement, which is that 

exhaustion affords an opportunity to correct errors. Bailey, 303 S.W.3d at 236. The 

Plaintiffs also fail to consider that consequences are imposed upon LEAs that persist in 

engaging in knowing violations of the prohibited concepts law in the face of complaints. 

See, e.g., Tenn. Code Ann. § 49-6-2206(b)(2)(B) (providing that “[t]he commissioner of 

education shall withhold a portion of the state education finance funds that an LEA is 

otherwise eligible to receive if a teacher or principal employed by the LEA intentionally 

violates subdivision (b)(2)(A) by purposefully using, or permitting to be used, in the 

person’s school, textbooks or instructional materials created to align exclusively with the 

Common Core State Standards or that are marketed as Common Core textbooks or 

materials”); Tenn. Comp. R. & Regs. 0520-12-04-.08(1)(C) (including as part of the 

definition of knowing violation that the LEA “[d]etermined that the allegation(s) was 

substantiated, but failed to remedy the violation”); Tenn. Comp. R. & Regs. 0520-12-04-

.06(2) (stating that “[e]ntry into an early resolution agreement shall not constitute an 

admission that the LEA or public charter school knowingly violated T.C.A. § 49-6-1019 or 

that the individual alleged to have included or promoted the Prohibited Concept, in fact, 

included or promoted a Prohibited Concept”).

The Plaintiffs offer two more arguments in support of their contention that they need 

not exhaust administrative remedies due to futility. As a third basis, they contend that it is 

difficult for parents to know precisely what is being taught in their children’s schools so as 

to be able to demonstrate teaching of a prohibited concept. They concede, as the School 

Board notes, that parents are free to learn more by, among other things, acting to “review 

course syllabi, maintain an open line of communication with their children’s teacher(s), 

review the books assigned, or by simply asking their children what they learned in school 

that day.” The Plaintiffs counter that “Social Emotional Learning,” which they allege 

equals critical race theory “is far more nuanced than simply looking at the syllabi, talking 

to the teacher or the student, or simply reading the books.” The Plaintiffs do not specify, 

and we fail to discern how this argument supports an elimination of the requirement to 
26

exhaust administrative remedies. The uncertainty referenced by the Plaintiffs seems more 

in accord with potential advantage of an administrative process that may avoid completely 

unnecessary lawsuits predicated upon misunderstandings or errant perceptions. As for 

their fourth basis for asserting futility, the plaintiffs contend that because the Wit &

Wisdom curriculum, which allegedly teaches prohibited concepts, is taught in all the 

elementary grade levels, parents would need to re-file a complaint in each academic school 

year that an alleged violation occurs. This argument ignores the possibility of more global 

remedial action being taken by the LEA in response to a complaint, but even if the factual 

predicate is accepted, the Plaintiffs offer no authority or additional argument to explain 

how this requirement is so onerous as to excuse a legal requirement to exhaust 

administrative remedies.

Therefore, we find no error in the trial court’s conclusion that the Plaintiffs’ 

Prohibited Concepts Claim is subject to an exhaustion requirements and dismissal thereof 

for failure to comply with the mandatory procedure. 

IV.

In addition to the aforementioned justiciability doctrines, the School Board also 

argues that the Plaintiffs’ claims should be dismissed because there is no private right of 

action that has been created to allow for a suit based upon the statutory violations which 

the Plaintiffs allege. Having concluded that the Plaintiffs lacked standing, the trial court 

did not address this argument, which the School Board renews on appeal before this court. 

Given our justiciability based dismissal of the Plaintiffs’ Prohibited Concepts Claim for 

failure to exhaust administrative remedies, we address the private right of action issue 

solely as to the Plaintiffs’ Common Core Claim. 

The Tennessee Supreme Court has observed that in determining if a private right of 

action exists to enforce a statutory requirement “[a] court can find that the legislature 

created a private right of action in one of two ways: based on the express terms of a statute 

or by implication through the statute’s structure and legislative history.” Affordable Constr. 

Servs., Inc. v. Auto-Owners Ins. Co., 621 S.W.3d 693, 696 (Tenn. 2021). In other words, 

the private right of action for enforcement of a statute is a legislative creation that is express 

or implied. See id. The Tennessee Supreme Court has indicated that the ultimate 

touchstone for analysis is whether the General Assembly “intended for a private right of 

action to exist.” Id. 

The School Board notes that Tennessee Code Annotated section 49-6-2206 does not 

expressly create a private of right of action and suggests that language therein runs contrary 

to implying a private right of action. They are correct on both accounts. Tennessee Code 

Annotated section 49-6-2206 does not expressly create a private right of action and the 

Code section does not appear to imply the existence of a private right of action. The 
27

problems for the School Board, however, is that a private right of action applicable to the 

Plaintiffs’ Common Core Claim is created in Tennessee Code Annotated section 1-3-121. 

Chapter 3 of Title 1 of the Tennessee Code addresses the “Construction of Statutes.” 

Tennessee Code Annotated section 1-3-121 provides that 

Notwithstanding any law to the contrary, a cause of action shall exist under 

this chapter for any affected person who seeks declaratory or injunctive relief 

in any action brought regarding the legality or constitutionality of a 

governmental action. A cause of action shall not exist under this chapter to 

seek damages.

Addressing section 1-3-121, the Tennessee Supreme Court observed that 

The plain meaning of this text expressly recognizes the existence of causes 

of action “regarding the legality or constitutionality of a governmental 

action” that seek declaratory or injunctive relief. Causes of action “regarding 

the legality or constitutionality of governmental action” must of necessity be 

brought against governmental entities . . . .

Recipient of Final Expunction Ord. in McNairy Cnty. Cir. Ct. Case No. 3279 v. Rausch, 

645 S.W.3d 160, 168 (Tenn. 2022). 

The plain language of section 1-3-121 creates a private right of action – “a cause of 

action shall exist ... for any affected person” – when that person seeks declaratory or

injunctive relief, not damages, challenging the legality of a governmental action. The plain 

language specifically dismisses any concern of contradiction with other law in its sweeping 

pronouncement, “[n]otwithstanding any law to the contrary.” Furthermore, this is not a 

case in which there is interpretive tension through a more specific negation or denial of a 

private right of action either with regard Tennessee Code Annotated section 49-6-2206 or 

the type of claim being advanced by the Plaintiffs. 

The Plaintiffs’ Common Core Claim fits precisely within the contours of a private 

right of action created by Tennessee Code Annotated section 1-3-121. The Plaintiffs are 

affected persons who are seeking declaratory and injunctive relief, rather than damages,

and challenging the legality of a governmental action. Specifically, they are arguing that 

the School Board violated Tennessee Code Annotated section 49-6-2206(b)(2)(A) by 

requiring teachers and principals in public schools to use “textbooks or instructional 

materials created to align exclusively with the Common Core State Standards or that are 

marketed as Common Core textbooks or materials.”

Our conclusion as to the private right of action question in this case is based upon 

the plain language of Tennessee Code Annotated section 1-3-121. While not grounding 
28

our opinion in legislative history, we do note that the legislative history of 2018 Public Acts 

Chapter 621 section 1 is consistent with our plain language reading. The House Sponsor, 

then-Majority Leader Glen Casada, at the final reading of the proposed legislation before 

the full Tennessee House of Representatives, was specifically asked whether it was 

intended that citizens would have private rights of action for Tennessee Code provisions 

that did not currently authorize such suits, and answered in the affirmative.19

 In committee, 

the Senate sponsor, Senator Jon Lundberg, in explaining the proposed legislation to 

committee members, also expressly indicated that this legislation was designed to address 

circumstances where there is not a specific cause of action to address unconstitutional or 

illegal governmental action, providing one so long as it is not for an action seeking 

damages.

20

 

19 Leader Casada: [This bill] has to do with giving the right of the citizen to take government to 

court if they violate our state law or our constitutional rights. It makes it very clear and cold that we have 

that right . . . . That is what this bill does.

. . . 

Representative Clemons: Mr. Leader, the breadth of this provision in Title I Chapter 3 – is this intended to 

apply across the board to any action against the government? 

Leader Casada: Declaratory action.

Representative Clemons: Or injunctive relief?

Leader Casada: Or injunctive. . . . 

. . .

Representative Clemons: I want to make sure the intent of this legislation is as I understand it which is the 

breadth so if any cause of action against the government in the Code or elsewhere does not currently contain 

a cause, a private cause of action you are creating one with this legislation?

Leader Casada: I would submit we are making it clear that it already exists. I think we have passed 

legislation in the past. Lower courts have opined that citizens don’t have a right to take their government 

to court. I contend that we have on many occasions said that they do. But it we are making it very clear 

that they do.

. . .

Representative Clemons: . . . My original question was if we are creating this new or at least clarifying that 

everyone has standing that it then opens up the entire Code for any Code that is not currently or may not 

have a private cause of action for something prohibited that we are opening that door up -- I just want to 

make that clear.

Leader Casada: Yes sir.

20

 Senator Lundberg: . . . A lot of folks thought well they couldn’t sue cities and states because they 

didn’t have a specific cause of action. This says again they can but not for damages. 

. . .

Senator Kelsey: . . . It only applies if you are not seeking damages so you cannot be asking for money is 

that correct?

Senator Lundberg: Absolutely. Precisely. 
29

V.

For the reasons discussed above, we affirm the trial court’s dismissal of P.J.L. and

J.L. and their child C.L. based upon lack of standing. We conclude, however, that the trial 

court erred in determining that Jennifer Roe and her children A.B. and B.B. and Katherine 

Roe and her children C.D. and D.D. do not have standing and that Parents’ Choice 

Tennessee lacks standing. We conclude that the trial court properly determined that the 

remaining Plaintiffs’ Prohibited Concepts Claim is subject to a mandatory exhaustion 

requirement and properly dismissed their claim due to failure to exhaust. We reverse the 

trial court’s dismissal of the remaining Plaintiffs’ Common Core Claim. 

Costs of the appeal are taxed equally to the Appellants, Parents Choice Tennessee, 

P.J.L., J.L., Jennifer Roe, and Katherine Roe, and the Appellee, the Williamson County 

Board of Education. We remand for further proceedings consistent with this opinion.

_________________________________

JEFFREY USMAN, JUDGE

 

. . .

Senator Lundberg: . . . There are recent court opinions that have expanded the intent of the original law 

again that is just that people are prohibited from filing those suits. This clarifies that they do have a cause 

of action but not to seek damages so to stop whatever the unconstitutional or illegal act would be.