Section 0520-12-04-.07 - APPEALS TO THE DEPARTMENT(1) The complainant or the individual alleged to have included or promoted the Prohibited Concept may file an appeal of the LEA or public charter school's determination with the Department within fifteen (15) calendar days of the date that the LEA or public charter school issues a written determination.(2) Upon receipt of an appeal, the Department review team shall determine whether it has the authority to review the appeal. The Department review team shall have the authority to review the appeal if: (a) The original complaint filed with the LEA or public charter school alleged that a Prohibited Concept was included in a course of instruction, curriculum and instructional program, or supplemental instructional material;(b) The original complaint was filed with the LEA or public charter school within forty-five (45) calendar days of the Prohibited Concept being included or promoted in a course of instruction, curriculum, instructional program, or supplemental instructional materials, or within forty-five (45) calendar days of these Rules becoming effective;(c) The original complaint was filed by an eligible complainant;(d) The appeal contains the information in Section 0520-12-04-.05(5); and(e) The appeal is filed by the complainant or the individual alleged to have included or promoted the Prohibited Concept with the Department within fifteen (15) calendar days of the date that the LEA or public charter school issues a written determination.(3) If the Department review team determines that it does not have the authority to review the appeal, the Department shall send a letter explaining the basis of the determination to the complainant, the individual alleged to have included or promoted the Prohibited Concept, and the LEA or public charter school in which the allegation(s) arose. If the Department review team determines that it does not have the authority to review an appeal, the LEA or public charter school's determination shall become a final determination.(4) If the Department review team determines that it has the authority to review an appeal, the Department review team shall initiate a review and investigation within fifteen (15) calendar days of receiving the appeal. An investigation is "initiated" when the Department review team sends a written notification to the complainant, the individual alleged to have included or promoted the Prohibited Concept, and the LEA or public charter school in which the allegation(s) arose that the appeal and related findings of the allegation(s) shall be investigated.(5) If the Department determines that it has the authority to review an appeal: (a) The LEA or public charter school shall not take disciplinary action against a teacher for violation of T.C.A. § 49-6-1019 or these Rules prior to the Department sending a final written determination letter; and(b) The LEA or public charter school may, but is not required to, amend its course of instruction, curriculum and instructional program, or supplemental instructional materials prior to the Department sending a final written determination letter.(6) As part of the review and investigation, the Department review team shall have the authority to: (a) Request the investigative file from the LEA or public charter school;(b) Interview the complainant, the individual alleged to have included or promoted the Prohibited Concept, or any other individual deemed necessary by the Department; and(c) Request any new or additional relevant physical or electronic evidence from the LEA, public charter school, the complainant, the individual alleged to have included or promoted the Prohibited Concept, or any witness.(7) No later than fifty (50) calendar days after receiving the appeal, the Department review team shall prepare a report summarizing its findings for the Commissioner upon the close of its investigation. The report shall include a recommendation as to whether the Commissioner should uphold the finding(s) of the LEA or public charter school.(8) After receiving the investigative results and recommendation from the Department review team, but no later than sixty (60) calendar days after receiving the appeal, the Commissioner shall determine whether the LEA's determination should be upheld or reversed. The sixty (60) calendar day timeline may only be extended if exceptional circumstances exist with respect to a particular appeal and those circumstances are appropriately documented. If there is a need for an extension to the sixty (60) calendar day timeline, the Department shall notify the complainant, the individual alleged to have included or promoted the Prohibited Concept, and the LEA or public charter school in which the allegation(s) arose of this extension in writing.(9) The Commissioner shall issue a written determination letter to the complainant, the individual alleged to have included or promoted the Prohibited Concept, and the LEA or public charter school from which the allegation(s) arose. Such determination letters shall be subject to all applicable federal and state student privacy laws and policies, including the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g; 34 C.F.R. Part 99) .(10) The written determination letter shall state that LEAs and public charter schools have the right to request a contested case hearing regarding the Department's written determination. The contested case hearing shall be conducted in accordance with the Tennessee Uniform Administrative Procedures Act at T.C.A. §§ 4-5-301 et seq. and the Rules of the Tennessee Department of State Administrative Procedures Division, Chapter 1360-04-01. If the LEA or public charter school chooses to request a contested case hearing, the LEA or public charter school shall make such a request within thirty (30) calendar days of the Department issuing the written determination of the appeal.(11) If the LEA or public charter school determines that a Prohibited Concept was included or promoted and the Department upholds that determination on appeal, the LEA or public charter school shall determine whether disciplinary action is warranted against the individual determined to have included or promoted the Prohibited Concept.Tenn. Comp. R. & Regs. 0520-12-04-.07
Emergency rules filed November 8, 2021; effective through May 7, 2022. Emergency rules expired effective May 8, 2022, and the rules reverted to their previous statuses. New rules filed May 12, 2022; effective 8/10/2022.Authority: T.C.A. §§ 49-1-201 and 49-6-1019.