NASHVILLE - The Tennessee Senate has approved a bill stripping Gov. Bill Lee of his sole authority to appoint members to the State Board of Education, handing over two-thirds of the nine appointments to the House and Senate speakers.
The measure, which previously passed the House as House Bill 1838, won approval in the GOP-run Senate on a 30-1 bipartisan vote.
"This is a good bill that just revises those appointments and gives the legislature more say," Sen. Joey Hensley, R-Hohenwald, told colleagues.
Because of several Senate changes in the version previously passed by the GOP-dominated House, the bill will return to the lower chamber for a final vote. The bill directs that the governor and Senate and House speakers each get three appointments which are made based on the state's nine congressional districts.
Last month, Lee defended the current process.
"The process we have is a good one - confirmation by the General Assembly of appointments to that," the Republican governor said.
Lee Communications Director Laine Arnold issued a brief response Thursday by text in response to a Times Free Press question.
"We are reviewing and will have more to say at a later time," Arnold said.
Tennessee governors have long enjoyed sole Board of Education appointment power with nominees confirmed by the House and Senate by a joint resolution that must pass both chambers.
The move by lawmakers to insert themselves as a full participant in making appointments comes amid Lee's ambitious effort to overhaul the state's 30-year-old funding formula for K-12 education. Lee's proposal also would assign new responsibilities to the Education Department and the State Board of Education.
Some lawmakers have voiced concerns about the governor pressing to get it done this year.
The sole no vote was cast by Sen. London Lamar, a Memphis Democrat who had been serving in the House before being appointed by the Shelby County Commission recently to fill a vacant seat in the upper chamber.
"The supermajority in the General Assembly doesn't need more power - the legislature already plays a consenting role on these board appointments," Lamar said of legislative Republicans. "I fear this effort only invites more partisanship and more erosion of the separation of powers."
When the bill passed in the House 68-18 on Feb. 24, Democratic representatives voted against it. Among them was Rep. Yusuf Hakeem, D-Chattanooga.
"I felt it was a power grab," Hakeem said in a phone interview Friday, "when I look at the environment [legislators] are responding to, what I consider to be some extreme perspectives when it comes to schools and books.
"It gave me great pause," Hakeem added. "Do you want to take power from the administration so you can use that position to install persons with the extreme perspective? I've truly gone through enough chaos now with the changes that are happening to add on to it. It wouldn't truly be positive."
Lt. Gov. Randy McNally, the Republican Senate speaker from Oak Ridge, and House Speaker Cameron Sexton, R-Crossville, would each get three appointments under the Board of Education bill the upper chamber OK'd Thursday. Lee would have just three appointments after it takes effect.
The bill provides that starting July 1, 2022, successors of departing State Board of Education members would be appointed for five-year terms. The House and Senate speakers' appointees would have to be confirmed by the respective chambers they head. The governor's nominees would still need confirmation by both chambers.
The Senate-amended bill makes several other changes in the existing statute that the House version does not make. The language currently states that "at least three (3) members shall be appointed from the majority and minority parties." The Senate version specifies that each of the appointing authorities (the governor and the two speakers) must appoint at least one member of the minority party.
The nine members will come from the state's nine congressional districts. The speaker of the Senate would appoint successors, with one each from the 3rd, 4th and 7th Congressional districts. The House speaker would appoint members representing the 2nd, 6th and 8th Congressional districts.
That to is a contrast to the House bill which has the 3rd Congressional District under the governor's perview to appoint. But McNally's home in Anderson County is in the 3rd Congressional District and the Senate version nods to that.
The governor would appoint successors representing the 1st, 5th and 9th Congressional districts in the Senate version as well as a student representative. Governors' appointments would have to be confirmed by both the House and Senate in a joint resolution as is the case currently with all nine members.
If the appointment is not confirmed, then the appointment terminates on the day immediately following the rejection of the appointment or on the day immediately following the 90th calendar day of a General Assembly, whichever is earlier.
"Someone brought the idea," Sexton later told reporters. "The administration opposed it, but it's passed in the House and I guess a variation in the Senate. So it'll come back over" for final approval.
Noting lawmakers have no appointments currently, Sexton said members want a larger say on the state school board.
"They want to have representation based on how big of a role the State Board of Education is going to play in education through our state. That's a determination of these two bodies, then that's what we'll do," Sexton said.
Sexton noted there are any number of boards and commissions for which the speakers name members.
"Sometimes they have more [members] and sometimes they have less," Sexton said. "Sometimes there are boards that have none. This was a conversation brought by a couple of members, and it wound up passing."
Senate Democratic Caucus chair Raumesh Akbari of Memphis later told reporters she's not so sure Lee's fellow Republicans are specifically losing faith in him.
"It certainly indicates more of the legislative branch seeking to take power away from the executive branch," Akbari said, adding that's going on in a number of legislatures where some require all of a governor's appointees to be approved by lawmakers. "Certainly this seems to be a trend that is taking place within the General Assembly where you're taking away the absolute power of a governor to make appointments and dividing it up between leadership of the House and the Senate."
Senate Minority Leader Jeff Yarbro, D-Nashville, said he believes the timing of the appointments bill is significant.
"I do think it's telling that this legislation that changes the legislative appointments on the State Board of Education is happening at the same time that the Department of Education is taking as much authority as it is in education," he said.
Yarbro said many state education laws are written to provide the State Board of Education a role as a relatively independent body to make decisions about education.
"I think there is a need for there to be a little bit greater separation from the governor in this instance where they're obviously creating so much rule-making authority within the department. There's a greater need for the State Board of Education to potentially be a check on the executive branch working in education in manners that just might not be consistent with the overall direction of the state," he said.
Origin of bill
The House bill was sponsored by Rep. Scott Cepicky, a conservative Republican from Culleoka who has at times been a fierce critic of Education Commissioner Penny Schwinn, the Board of Education and administration policy.
In 2020, Cepicky was among House Republicans who blasted Schwinn during a House Education Committee hearing on the reopening of public schools after they were largely shut down during the pandemic. Among his criticisms was a lack of communication about the department's child well-being check program. A number of Republicans considered it intrusive.
"There has to be trust between you and this committee," Cepicky pointedly told Schwinn. "We have to know that, philosophically, we're on the same page. There has to be cooperation between us, you, and Gov. Lee. There's a million kids who are depending on us to get this right."
Asked in February by the Times Free Press after the bill came through a House Education subcommittee - despite opposition from Lee administration officials who testified against it - if there was a precipitating event prompting him to bring the bill, Cepicky said a "little bit" had to do with the textbook waiver granting process that lawmakers stripped from Schwinn last year.
"And a lot of that had to do with some steering the department did at the local level and assuming the Textbook Commission would grant approval to the Wit & Wisdom [curriculum] that the commissioner gave 33 waivers for," Cepicky said at the time.
"Wit & Wisdom" content has come under two-fold criticisms with some arguing it isn't appropriate for younger students while also coming under fire for allegedly teaching critical race theory which holds that racism is systemic in the U.S. and has been since the first Blacks were brought here as slaves.