School Board Battles: Important But Not Enough

Parents and concerned citizens in various Virginia communities have challenged School Board decisions and policies on a variety of issues, including COVID restrictions, Critical Race Theory, and transgender policies.  In addition to raising concerns and objections at public School Board meetings, there have been efforts to initiate removal proceedings against members of some School Boards.

School Board battles are important for a number of reasons. First, they allow parents and concerned citizens to exercise their constitutional rights to (1) petition the government for the redress of grievances under Virginia Constitution, Article I, Section 12; and (2) hold elected officials accountable to the public pursuant to Virginia Constitution, Article I, Section 2.  Second, they allow parents to participate in decisions concerning the education of their children under Virginia Code, Section 1-240.1 (“A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.”).

Although victories achieved by parents, legal guardians, and concerned citizens in School Board battles will be important, they will have limited effect because the authority of School Boards is constrained under Virginia law.

The General Assembly is responsible for providing for a system of free public education 

throughout Virginia (Virginia Constitution, Article VIII, Section 1) and has ultimate authority over the Board of Education (Virginia Constitution, Article VIII, Section 5(e)). 

The Board of Education has broad educational authority under the Virginia Constitution and Virginia law, including the following:

(1) It is responsible for determining and prescribing the standards of quality for Virginia public schools, subject to revision by the General Assembly (Virginia Constitution, Article VIII, Section 2);

(2) It  has general supervisory authority of the public school system (Virginia Constitution, Article VIII, Section 4; Virginia Code, Section 22.1-8);

(3) It has authority to approve textbooks and instructional material for use in the public schools (Virginia Constitution, Article VIII, Section 5(d));

(4) It has primary responsibility and authority for effectuating educational policy, subject to the ultimate authority of the General Assembly (Virginia Constitution, Article VIII, Section 5(e)).

Although School Boards have the authority to supervise schools in each school division (Virginia Constitution. Article VIII, Section 7), their authority is constrained under Virginia law.  Significantly, School Boards must:

(1) See that school laws are properly enforced and observed (Virginia Code, Section 22.1-79 (1);

(2) Operate and maintain public schools, determine studies to be pursued and the methods of teaching “insofar as not inconsistent with state statutes and regulations of the Board of Education” (Virginia Code, Section 22.1-79(5); and

(3) Perform duties prescribed by the Board of Education or imposed by law (Virginia Code, Section 22.1-79(7).

And, School Boards have no authority to adopt or implement any bylaw or regulation that is inconsistent with the Virginia Constitution or Virginia laws.  (Virginia Code, Section 1-248 and Section 22.1-78).

Given the constrained authority of School Boards, Virginia parents and concerned citizens must understand that any victories they achieve in School Board battles will have limited effect — unless they expand their efforts to include higher levels of Virginia government.

Virginians dissatisfied with the current Board of Education’s policies and practices have to consider what effect their votes for Governor, Attorney General, and the General Assembly in 2021 will have on Virginia educational policy and practices for several reasons:

(1) The Governor appoints members of the Board of Education, subject to confirmation by the General Assembly (Virginia Code, Section 22.1-9).  A Democrat Governor and a Democrat-controlled General Assembly are not likely to appoint and confirm a new Board of Education that will moderate or rollback the current “woke” educational policies.

(2) Virginia Code, Section 22.1-23.3.A directs the Department of Education to develop policies concerning the treatment of transgender students in public schools.  Subsection B of that statute states “Each school board shall adopt policies that are consistent with but may be more comprehensive than the model policies developed by the Department of Education pursuant to subsection A.”  The statute was enacted by a Democrat controlled General Assembly and signed by Governor Ralph Northam, and is not likely to be repealed by Virginia Democrats.  And, even if Republicans win control of the General Assembly after the 2021 election, it is likely that Terry McAuliffe (if elected Governor) would veto any repeal of that statute.

(3) Any changes in Virginia law that would grant School Boards greater authority or more autonomy from the Board of Education are not likely to be made by a Democrat controlled General Assembly or signed into law by a Democrat Governor.

(4) Attorney General Mark Herring has stated strong support for transgender policies.  See Office of Attorney General press release dated July 27, 2021.  And Herring’s actions concerning the discrimination complaint brought against the Loudoun County Public Schools in late 2019 resulted in a settlement that imposes severe constraints on that school system.  See Office of Attorney General press release dated February 18, 2021. (Office of the Attorney General press releases can be accessed here).  If re-elected in 2021, Herring is likely to take legal action against any School Board that tries to (a) moderate or soften the Board of Education’s model policy on transgender students, or (b) distance itself from the current Board of Education’s embrace of “woke” educational policies.

In conclusion, any Virginian dissatisfied with Virginia’s current education policies and practices needs to vote Republican in the 2021 election or face the likelihood that those current education policies and practices will continue for another four years.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.