by Dick Hall-Sizemore

The Virginia Department of Education (DOE) has issued its “guidance” on the usage of cell phones in schools.

While there are lots of definitions and clarifications, the policy boils down to this:

• Elementary schools—”Cell phones and personal electronic communication devices will not be used by elementary students within the school building or on school grounds.”
• Middle and high schools—”Students shall not have a cell phone or personal electronic communication device during the bell-to-bell school day. If cell phones or personal electronic communication devices are brought to school, they must be stored and turned off during bell-to-bell school day.

“Guidance” implies “suggested, but not mandatory.” That is not the case here. The document concludes with this directive: “School divisions are expected to review their existing policies and, if necessary, adopt and implement age-appropriate policies and procedures aligned with the guidance on the bell-to-bell cell phone policies by January 1, 2025. School divisions may adopt policies that are more comprehensive than the guidance.”

DOE was responding to an executive order issued by Gov. Youngkin to develop these guidelines for schools to follow. In that order, the Governor directed that DOE to develop policies to be used by school division “to develop policies and procedures by January 1, 2025.” It is clear that schools are required to adopt policies in line with the guidelines issued by DOE.

As laudatory as the policies set out in the DOE document may be, it is highly questionable whether the Governor has the authority to require schools to adopt any aspect of this “guidance”.

In his executive order, the Governor cites Sec. 22.1-23 (6) as his authority for this action. That subdivision says that the Superintendent of Public Instruction shall “along with the State Health Commissioner, work to combat childhood obesity and other chronic health conditions that affect school-age children.”

The Code section does not define, or give examples of, “other chronic health conditions that affect school-age children,” but to stretch the language to include cell phone usage would be to stretch the language out of all recognition. 

The Governor goes to some lengths in his executive order to link cell phone usage to mental health issues, but mental health is not the subject of the Code section. The Code language directs the Superintendent to work with the State Health Commissioner. That official does not deal with mental health; that is the bailiwick of another state agency.

Each local school division has the authority to regulate cell phone usage in the schools in its jurisdiction. The General Assembly could enact legislation requiring school divisions to regulate cell phones along the lines laid out in the DOE document. But the Governor does not have unilateral authority to direct schools to adopt certain policies. Readers of this blog who were upset about how Gov. Northam was using the Code to deal with COVID should be really up in arms about this seizure of authority by Youngkin.

Youngkin’s use of this Code section in this instance opens it up to be used to deal with any sort of perceived problem. For example, it certainly could be used by a Governor to require high schools to disband their football teams since there is some evidence that concussions suffered while playing football in high school can result in “chronic health conditions for school age children.”

Regardless of his questionable authority to take this action, most superintendents and school board members are probably secretly happy about it. These are actions that they would want to take but are reluctant to do so because of opposition of parents and students. Now, when parents complain, they can just say, “The Governor made me do it.”