by Emilio Jaksetic
On July 18, 2023, the Virginia Department of Education (VDOE) issued “Model Policies on Ensuring Privacy, Dignity, and Respect for all Students and Parents in Virginia’s Public Schools” (Revised Model Policy). A copy of that policy is accessible at https://www.doe.virginia.gov/Home/Components/News/News/308/
On August 15, 2023, Michelle Reid, Ed.D, Superintendent of the Fairfax County Public Schools (FCPS) issued a Superintendent’s Message entitled “Model Policy Update.” According to the Superintendent’s Message, “We have concluded our detailed legal review and determined that our current Fairfax County Public School (FCPS) policies [on transgender and gender-expansive students] are consistent with federal and state anti-discrimination laws as required by the new model policies.” A copy of the Superintendent’s Message is accessible at https://www.fcps.edu/news/model-policy-update.
On August 23, 2023, Virginia Attorney General Jason S. Miyares issued an advisory opinion affirming the legal validity of the VDOE’s Revised Model Policy and advising Virginia Governor Youngkin that Virginia school boards are required by Virginia Code Section 22.1-23.3 to adopt policies that are consistent with the VDOE’s Revised Model Policy. A copy of the Attorney General’s Advisory Opinion is accessible at https://www.oag.state.va.us/citizen-resources/opinions/official-opinions?view=article&id=2523&catid=30.
Attorney General Miyares is correct that Virginia Code, Section 22.1-23.3 imposes a duty on Virginia school boards. Section 22.1-23.3.B. requires “Each school board shall adopt policies [on transgender students] that are consistent with but may be more comprehensive than the model policies developed by the Department of Education pursuant to subsection A.” The word “shall” means Virginia school boards have a mandatory duty to adopt policies that are consistent with the VDOE’s Revised Model Policy. Under Section 22.1.-23.3.B., Virginia school boards have no authority or discretion to adopt or retain policies that are inconsistent with the Revised Model Policy. However, the Superintendent’s Message is a declaration that FCPS will not carry out the mandatory action required by Section 22.1-23.3.B.
More is at stake than just noncompliance with Section 22.1-23.3.B. The decision of the FCPS to retain its existing policy on transgender students is an act of defiance that (1) violates provisions of the Virginia Constitution and the Virginia Code; (2) indicates FCPS officials do not recognize the limits of their authority under Virginia law; and (3) shows that FCPS officials do not consider themselves bound by their oaths of office. To understand how I reach that conclusion, it is necessary to consider the cumulative effect of the following provisions of law: (a) Virginia Constitution, Article VIII, Section 5(e); Article I, Section 7, and Article II; Section 7; and (b) Virginia Code, Section 22.1-78.
The Fairfax County School Board (FCSB) does not have unlimited or unfettered authority to carry out its duties and responsibilities. To the contrary, the authority of FCSB to promulgate policies or regulations is subordinate to the authority of the General Assembly and the VDOE. Virginia Constitution, Article VIII, Section 5(e) states the following: “Subject to the ultimate authority of the General Assembly, the [VDOE] shall have primary responsibility and authority for effectuating the educational policy set forth in this article, and it shall have such other powers and duties as may be prescribed by law” [italics added].
Furthermore, Virginia Code, Section § 22.1-78 reads: “A school board may adopt bylaws and regulations, not inconsistent with state statutes and regulations of the Board of Education, for its own government, for the management of its official business and for the supervision of schools, including but not limited to the proper discipline of students, including their conduct going to and returning from school” [italics added]. Given the quoted provisions of Virginia law, it is clear that FCSB has no authority or discretion to promulgate or retain any policy or regulation inconsistent with any educational statute or any policy or regulation adopted by the VDOE.
Furthermore, the Virginia Constitution, Article I, Section 7 (“Laws should not be suspended”) states: “That all power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.” Even if Article I, Section 7 were broadly construed to give FCSB the authority to decide to suspend the execution of any bylaw or regulation FCSB had promulgated, such authority would not allow FCSB to presume to suspend the execution of any provision of the Virginia Constitution or the Virginia Code.
The Virginia Constitution, Article II, Section 7 (Oath or affirmation) states: “All officers elected or appointed under or pursuant to this Constitution shall, before they enter on the performance of their public duties, severally take and subscribe the following oath or affirmation:
‘I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as … , according to the best of my ability (so help me God).’” [ellipsis in original]
As elected officials, the members of the FCSB took oaths of office required by the Virginia Constitution, Article II, Section 7. The members of the FCSB have a constitutional duty to support the Virginia Constitution and faithfully discharge all the duties imposed on them under Virginia law. The members of FCSB are violating their oaths of office by:
(1) ignoring and exceeding the limits of their authority under Virginia Constitution Article VIII, Section 5(e);
(2) refusing to carry out the mandatory direction of Virginia Code Section 22.1-23.3.B., thereby presuming to have the authority to suspend and nullify the legal effect of Virginia Code Section 22.1-23.3, in violation of Virginia Constitution, Article I, Section 7; and
(3) by maintaining and refusing to modify a FCSB regulation that is inconsistent with the qualifications and limitations of its authority under Virginia Code, Section 22.1-78.
The members of the FCSB have crossed a constitutional and legal Rubicon. By refusing to comply with the mandatory requirement of Virginia Code Section 22.1-23.3.B., the members of FCSB have declared their willingness to refuse to comply with their constitutional and statutory duty to act within the limits of their legal authority. If they believe they can unilaterally act this way with respect to the issue of transgender students, then there is no limit to what future issue could tempt them to ignore the limits of their legal authority and act without regard to the Virginia Constitution or the Virginia Code.
The people of Fairfax County face the clear threat of arrogant, willful members of FCSB who see themselves as free to ignore their oaths of office and the limits of their authority. Such an arrogant usurpation of power and abuse of office will not remain isolated or limited if allowed to go unchallenged and unchecked. History shows that abuses of power often start with small steps that initially may not seem to be too dangerous or threatening. However, like a serious infection or a cancerous tumor, abuse of power increases, spreads, and endangers the rights, freedoms and liberties of a free people.
The people of Fairfax County should exercise their constitutional rights under Virginia Constitution, Article I, Sections 2, 6, and 12 to protest the lawless action of the FCSB, hold the members of the FCSB accountable for their lawless action, and seek lawful and peaceful redress through the judicial mechanisms and political processes available under Virginia law.
Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.