Home Education McDonnell’s failing grade: Is a statewide division constitutional?

McDonnell’s failing grade: Is a statewide division constitutional?


by Paul Goldman

While well-meaning, the controversial Opportunity Educational Institution legislation introduced by Governor McDonnell seems to run  counter to the Virginia constitution. The ends never justify the means in these kinds of situations, that is what Republicans once believed. But not so much lately. Fortunately, James Madison and others decide to run Virginia according to a constitution. Yeah, I know: the rule of law is so well….20th century….a real pain when you are sure you are right. I understand.

McD's legislation is aimed at allowing the creation of  a statewide board 11 individuals – 4 GA members and 7 ordinary mortals appointed by the governor – to run schools denied state accreditation for two straight years. The board would take over management of the schools, presumably get them in shape and then the local board from which they were taken can ask to get them back.

As a matter of generic educational policy, this McDonnell initiative is clearly aimed at trying to improve a struggling school. One can't really argue with the position of "try something new for gosh sakes" if you are dealing with a chronically bad situation. I applaud his concern.

BUT:  The concept of "local control of education" is a very dear and near one to Virginia, indeed it is suppose to be to Republicans particularly. But the governor no doubt sees his OEI as a way to create a charter school-lite type of situation to help these schools. Again, I don't have any problem per se with charter schools, indeed was the only Democrat willing to publicly help the one in Richmond – now a great success – get its charter, even helped write the original version of the charter. A charter school is still a public school, people forget that.

BUT: All this good stuff, good intentions does not obviate the need to follow the Virginia constitution. The operative part of the constitution in this situation reads in pertinent part as such:

Article VIII, Section 5. Powers and duties of the Board of Education.

The powers and duties of the Board of Education shall be as follows:

*(a) Subject to such criteria and conditions as the General Assembly may prescribe, the Board shall divide the Commonwealth into school divisions of such geographical area and school-age population as will promote the realization of the prescribed standards of quality, and shall periodically review the adequacy of existing school divisions for this purpose. 

Historically, every county and independent city in Virginia has had one school division. But technically, as a matter of constitutional law, each county and city is not legally entitled to its own school division, this has been a division of the state done by the Board of Education. In theory therefore, no county or city has a legal right to their own school board, it has been as a matter of political necessity, demanded by General Assembly members or they would get defeated for re-election by angry local residents.

According, it would seem – I say seem –  the General Assembly would have the power – if it wanted to take the political heat – to create by law "such criteria and conditions" as it my prescribe to create  a statewide school division and give that school division certain schools based on said criteria and conditions. However, the operative word is "seem" since the creation of a statewide school division would seem to fly in the face of the constitutional language "such geographical area and school-age population" etc. etc.

Why? What McDonnell is claiming to have – or precisely what is claiming the General Assembly can do – is pass such criteria and conditions that allows for the creation of a statewide school division: ipso facto as the lawyers say, this is not creating a division to serve a "geographical area" of school age population but rather merely using the whole state as a geographic area per se. 

Or put another way: If you read the constitution to give the GA the power to create a statewide school division for struggling schools, then you per se read it as giving the GA the power to put all the schools in the state under state management, or all the schools in a particular city, for whatever reason the GA may later decide. It is the kind of expansive state power conservatives would decry if proposed by a Democrat.

Moreover, under the Governor's view of the constitution, what is to stop a Board of Education from using his legislation to order the takeover of any school, since the basis of this takeover is lack of accreditation. Those standards can change by administrative decision of the folks running the accreditation program.What is accredited today can be unaccredited tomorrow.

THE CONSTITUTIONAL POINT BEING: The constitution does not contemplate the state running any local schools, nor is there anything to suggest anyone has ever considered this part of the state constitution.

The constitutional language intends for the Board of Education to divide the running of schools among the localities of the state, leaving open the issue of the precise boundaries. That these boundaries have historically coincided with county and city lines is, admittedly, not required by the constitution.

So I will concede the ED Board's power to carve things differently…up to a point however. They can't use the power to create geographic divisions to in effect put everything in one big statewide division that represents not an area of the state but the whole thing. 

By definition, if you create a school division whose geographical boundaries are the same as the statewide wide boundaries, then you have not divided up the state at all, rather the Board of Education has in effect taken over the local school system.

But you say: "Paul, these are only 4 schools around the state, out of thousands, and they need some real help. What's the big rub, constitutionally, no one is saying take over everything?"

The rub: precedent. The governor is saying the Board of Education would have that power if so empowered by the GA in a law signed by him. He is claiming an expansive state power for the state government that is not there in the VA constitution. I thought conservatives saw the constitution as a check on state government power. That's why it is the rule of law, not men. 

As a matter of educational policy, coming up with a new way to solve an old, chronic problem is jake with me in terms of "don't just sit there, do something if you can" common sense. School Boards around the state have situations seemingly too difficult for them to handle: getting some expertise from the outside is a good thing in many circumstances, Virginia should have something in place to make that happen even pressure local school boards to reach out.

But short of a constitutional amendment, the governor and the GA need to do it according to the constitution, not their own desires.

Bottom line: The VA constitution is written, and this is not a matter of debate, to provide for local control of education. It is written to have local school divisions run by local boards either appointed by locally elected officials or through local elections. This is not my speculation, this is 200 plus years of history.

The GA has the power, under the constitution, to create criteria that will either require local boards to seek state help with certain struggling schools, or allow the Board of Education to create a second local school board to run a failing school in that local district with the state legislation fixing the membership of that board. It could create a regional school board for that purpose as it has with Governor's Schools.

That is to say: It can divide up the state in geographic areas that make sense, but it can't just create a statewide geographic area since this, by definition, divides nothing.

The governor should amend his legislation to reflect this constitutional imperative: it would have the extra value of being more politically attractive.

Right now, he is claiming state power to run whatever local schools the GA passes legislation to allow a group of legislators and non-local statewide folks to run. That is not the VA constitution.

It is well meaning to fix a failing school – it is necessary to fix it – but the ends to do not justify the means under the VA constitution.


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