by Paul Goldman

Did you know the Constitution of Virginia denies white children the right to equal educational opportunities? Indeed, not just denied: but intentionally denied by the drafters of Article VIII, the Educational Clause. The denial is particularly damaging to white children in the Western and rural parts of the state.

That’s right: Trump country, conservative country. And yes: Governor Youngkin knows all about this. As does the Republican Party. As do Democratic leaders. To his credit, Senator Bill Stanley, R-Moneta, led the fight to stop this discrimination. Joined by my State Senator at the time. But the liberal leaders from NOVA in the House of Representatives killed it.

NOW, I KNOW WHAT YOU’RE THINKING: “ Come on Paul we would’ve heard about it. Jim Bacon and the Bacon Rebellion would’ve discussed it.”: 

My answer: I believe I actually first wrote about the basic issue years ago in this space. Jim was the only one willing to print it. Many years later, the Virginian-Pilot published a discussion of the matter, written by myself and Professor Rozell from George Mason University. Governor Wilder and I talked  about the constitutional issue over 30 years ago. We both were determined to try to do something to fix it but got sidetracked by the customs of the General Assembly and the insistence of an otherwise brilliant attorney to pursue what he had to know would be a losing appeal to the Virginia Supreme Court. 

Moreover, I have an admission to make: In hindsight, I used the wrong strategy to bring the matter to the attention of the politicians and the public. This is why we weren’t able to get the critical mass needed to change the constitution.

That is to say: People saw it as a Black and Brown K-12 issue, not an issue of concern to white students. I should’ve realized my having been Doug Wilder’s campaign manager makes people think my causes tend to be civil rights related. In America, this is assumed to be connected to helping minorities only. This perception, of course, is rather foolish and untrue. But as we know, in politics perception is reality

So today, right here, let me explain my mistake and my new strategy. 

Fact: nearly half of Virginia’s public-school students are white. Ironically, they are being damaged by something the segregationist did in an effort to hurt black students! 

The action I am discussing occurred in 1969–1970. Mills Godwin, the state’s last segregationist governor and his cronies knew they were losing their grip on Virginia politics. They also knew the 1902 “white supremacy“ Constitution needed to be changed for various reasons. Virginia needed a modern Constitution with a new Education Clause due to Supreme Court opinions. But they had no intention of giving must less paying for equal educational opportunities to non–white students. 

As I have written and discussed previously, the Brown v Board of Education decisions had a fatal practical legal flaw unappreciated by the Justices.

Liberals and progressives had missed it. But not the old segregationists and reactionaries. Godwin, a shrewd while evil politician, realized he could take advantage of it. 

To a non-lawyer reading Article VIII, Section I, it appears to require the state to provide the same educational opportunities to every child. This was important for Godwin since the new constitution had to be adopted by public referendum. People needed to think Virginia was finally complying with the Supreme Court given Virginia’s lead role in fighting their equal educational opportunities mandate. The referendum passed overwhelmingly in 1970. 

Article VIII, Section 1, reads as follows:

The General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth, and shall seek to ensure that an educational program of high quality is established and continually maintained.”

The phrase “shall seek to” had been purposely chosen for its hidden anti-equality  purpose. The word “shall” makes the educational goals seem mandatory. This had been my first impression. No doubt the same for voters years ago. 

However the “shall” is pure political misdirection. The operative legal words are “seek to.” This legalese denied Virginia school children a legal right to educational equality. Why?

The term “seek” is what the law views as an aspirational goal. Courts of law cannot force a state or locality to achieve such a goal. Rather courts can only enforce government violations of a citizen’s right. This requires the government having a duty to do something. But an aspirational goal does not create a duty, only a vision. Thus, no right. Therefore, no winnable law suit. 

The fundamental point being: There is no constitutional — thus no legal –accountability in Virginia for denying equal educational opportunities. The Brown decisions had made what Godwin and cronies did perfectly legal. Even though the court intended the exact opposite. 

Back in 1970 the state school population was 90% white. 

But Godwin and cronies were willing to sacrifice the futures of 90% if that was required to deny black children a chance of equal educational opportunities.

My mistake is thus clear: In my writings and discussions with politicians, I failed to sufficiently explain how this constitutional problem badly hurts the educational opportunities of white students. 

That’s on me. 

Our democracy is at a pivot point. More and more, we are devaluing the value of the educated mind as an important public and personal virtue. Increasingly, we see education as a goal for financial success only. Forgetting its indispensable role as a necessary ingredient to the critical thinking required for a citizen in a democracy. 

It is clear we can no longer rely on Washington to protect long-standing American educational values.

An even more tragic based on my research: No state, even the most liberal state, guarantees equal educational opportunity to its younger generation.

All kids deserve equal educational opportunities so they can be all they can be. 

White kids, too. 

Paul Goldman is former Chair of the VA Democratic Party, a former candidate for mayor of the City of Richmond, and author of “Remaking Virginia Politics.”