State of Tennessee

Office of the Attorney General

Attorney General

500 Charlotte Avenue

Nashville, Tennessee 37243-0497

 

Memorandum

 

 

To:       John M. White

State Representative 70th Legislative District

 

From:   Paul G. Summers

Attorney General and Reporter

Vickie P. Hall

Assistant Attorney General

 

Date:   December 20, 2000

 

Re:       Request for Informal Opinion - Validity of Statute Requiring Tennessee Commission of Indian Affairs
to Consist of at Least Three Individuals of Native American Lineage

 

You have asked this Office to opine informally on whether it is constitutional for Tenn. Code Ann. § 4-34-104 to require at least three members of the Tennessee Commission of Indian Affairs to be of not less that [sic] twenty-five percent (25%) Native American lineage. For the reasons set forth below, this statute is constitutionally suspect.

 

Tenn. Code Ann. § 4-34-104 sets forth a statutory obligation for the governor to appoint persons of not less than twenty-five percent (25%) Native American lineage to at least three of the five member positions of the Tennessee Commission of Indian Affairs. The language of this statute is similar to two other Tennessee statutes whose constitutionality was determined to be suspect in two separate Attorney General Opinions. Op. Tenn. Atty. Gen. 93-9 (January 28, 1993); Op. Tenn. Atty. Gen. 89-140 (December 8, 1989). (Copies of each attached.)

 

The 1989 opinion asked whether the reservation of two positions on the Metropolitan Government Charter Commission for persons of “African American descent” was constitutional. Citing _Peters v. Moses_, 613 F. Supp. 1328 (W.D. Va. 1985), concerning reservation of two school board positions for members of the black community, the opinion concluded that to categorically exclude persons from consideration for public office solely on the basis of race was a violation of the Equal Protection Clause, unless it could survive a strict scrutiny analysis. The opinion also cited _City of Richmond v. Croson_, 488 U.S. 469, 109 S.Ct. 706,102 L.Ed.2d 854 (1989) which held that the standard of review under the Equal Protection Clause for race-based classifications is a strict scrutiny analysis. The Court went further to say that even measures purporting to alleviate past discrimination through racial classification are subject to strict scrutiny. Id. at 494, 109 S.Ct. at 722.

 

The 1993 opinion questioned whether legislation requiring race-based classifications for membership on the Parole Eligibility Review Board would violate the Equal Protection Clause. Relying on _Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 106 S.Ct. 1842, 132 L.Ed. 2d 158 (1986) among other cases, this opinion concluded that, while this legislation was not per se unconstitutional, it was constitutionally suspect because it would be subject to a review under strict scrutiny and must be narrowly tailored to achieve a compelling governmental interest.

 

Since the issuance of these opinions, the Supreme Court has affirmed that all racial classifications, imposed by any federal, state or local governmental actor, must be analyzed by the reviewing court under strict scrutiny. _Adarand Constructors, Inc. v. Pena_, 515 U.S. 200, 115 S.Ct. 2097 (1995). Further, the Court held that such racial classifications are constitutional only if they are narrowly tailored to further a compelling governmental interest. _Id._ at 227, 115 S.Ct. at 2113.

 

This Office, of course, is not a fact-finding entity and is not aware of the circumstances that led to the enactment of the racial classification within the statute. However, in reviewing the language of the statute, it does not state any reasons for the requirement of three Native American commission members. Perhaps there are compelling state interests not articulated in the statute which could withstand a court’s review under the very high standard of strict scrutiny required by case law. Absent any compelling state interests to support this race-based classification, however, the statute is unconstitutional.

 

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