IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 4, 2006 Session

ALEXANDER C. WELLS v. TENNESSEE BOARD OF REGENTS, ET AL.

Appeal from the Chancery Court for Davidson County

No. 95-2144-III Carol McCoy, Chancellor

No. M2005-00938-COA-R3-CV - Filed on September 27, 2006

PATRICIA J. COTTRELL, J., dissenting.

It is elementary that a statute waiving sovereign immunitymust clearly do so, and any statute

purporting to waive that immunitymust be strictly construed. Courts are to determine to what extent

and in what ways the Legislature has allowed suits against the State. The statute allowing the suit

herein, Tenn. Code Ann. § 49-8-304, authorizes de novo judicial review of the termination or

suspension of tenured state university professors. The statute does not mention or refer to backpay

or the award of damages. This court cannot imply such a remedy or interpret the statute so as to

enlarge the waiver of sovereign immunity beyond that intended by the legislature.

Mr. Wells bases his entitlement to backpay on Chapdelaine. The discussion in Chapdelaine

of the award of backpay in light of the sovereign immunity of the State is very limited. It appears,

however, that the Court found a waiver of immunity in Tenn. Code Ann. § 49-1417 as it existed at

that time. This reliance is explained by language in then-existing Tenn. Code Ann. § 49-1421,

quoted in the Chapdelaine opinion, that stated that tenured college and university teachers were

entitled to judicial review of board decisions “for the same purposes and in the same manner

provided by § 49-1417.” See also Eads v. Humphries, 562 S.W.2d 805, 806 (quoting the statute).

At that time, Tennessee Code Annotated § 49-1417 was part of the statutory scheme

applicable to tenured teachers in local school systems. Thus, at the time of the employment action

at issue in Chapdelaine, tenured teachers at colleges governed by the State Board of Education were

entitled to a judicial review co-extensive in scope and remedy with that available to tenured teachers

in local elementary and secondary schools. The Chapdelaine court, finding that Tenn. Code Ann.

§ 49-1417 provided jurisdiction of actions brought by tenured teachers to review their dismissal,

noted that the Court had “consistently approved awards of back pay as to teachers in the city and

county school systems.” Chadelaine, 532 S.W.2d at 550.

In 1976, however, the General Assembly severed the connection between actions regarding

tenured college and university professors in Board of Regents schools from those regarding

elementary and secondary teachers in local school systems. 1976 Tenn. Pub. Acts, ch. 839. That
-2-

legislation is now codified at Tenn. Code Ann. § 49-8-301, et seq. (dealing with tenure for faculty

at institutions within the state university and community college system, governed by the State Board

of Regents). Thus, the basis for the Chapdelaine court’s reliance on authority governing public

school teachers in local systems no longer exists.

The current Board of Regents statutes provide for de novo judicial review of the dismissal

or suspension of a tenured faculty member. Tenn. Code Ann. § 49-8-304. Thus, the court’s review

is limited to the propriety of the Board’s decision to dismiss or suspend the tenured professor.

Nothing in that statute, or the statute regarding the Board’s adoption of policies for “the termination

of faculty with tenure,” Tenn. Code Ann. § 49-8-301(a)(3), or the statutes regarding procedures for

and review of such actions, Tenn. Code Ann. §§ 49-8-302 through - 304, authorizes the payment or

award of backpay. An action for judicial review of the Board’s decision does not include the

remedies available in a 42 U.S.C. § 1983 action or one brought under various state and federal

statutes prohibiting employment discrimination.

There is certainly an argument that the Chapdelaine court did not rely exclusively on TennCode Ann. § 49-1417. The opinion includes language indicating that judicial review of a termination

decision would be less than satisfactory or effective if backpay were not available. Of course, a

decision that the Board’s termination decision must be overturned brings other concrete relief. In

any event, the doctrine of sovereign immunity precludes full monetary relief against the State in

many situations. Exceptions to that doctrine must be explicit and have not generally been based on

concepts of equity or implication.

While I understand the majority’s adherence to Chapdelaine, I would interpret that opinion

as relying primarily on a statutory scheme that has been changed, effectively eliminating the basis

for the backpay ruling. It appears to me that the proper interpretation of Chapdelaine and the

availability of an award of backpay against the State under a statute that is silent as to that remedy

are issues that need to be addressed by the Tennessee Supreme Court.

___________________________________ 

PATRICIA J. COTTRELL, JUDGE