Federal school funding threatened; Democrats and unions in a bind; Lawsuits coming
Timing is Everything
by James C. Sherlock
Ralph Northam declared on August 30 of this year that Virginia’s schools are systemically racist and that teachers are presumptively racist and must be treated and monitored.
In addition to threatening to create turmoil in the schools and damage to the very students he apparently meant to help, the Governor has potentially kicked over a hornets’ nest worse than he stirred up with his infamous infanticide interview that resulted in the release of his blackface yearbook photo.
And he may have set Virginia up for federal demands for repayments of Department of Education funds and related fines. At stake is a breathtaking amount of money that includes CARES Act funding, all of which has been contingent on compliance with the Title VI of the Civil Rights Act of 1964.
The documented facts may also have put Democrats and their allies (in that word’s traditional and critical race theory definitions) in a large political bind.
The Media
I suspect social media will spread the word at some level, but social media cannot directly question the Governor on the matter.
Traditional media may or may not try to get a statement from the Governor. We’ll wait and see.
School Board Elections
The elections at issue for which voters need this information are the November school board contests. There is seldom enough campaign money there to get this issue out in paid media, but I expect some candidates who oppose mandatory indoctrination and monitoring of teachers to create news events to get coverage.
The Governor
I think the Governor will try to wait it out and see if it goes away. If he feels pressure, he may provide a Friday night news release carefully crafted to obfuscate, assuring both sides that he was misunderstood. He can’t claim he was misquoted or quoted out of context because of the video.
I don’t anticipate him being directly questioned on the matter at one of his COVID news conferences, but again, we’ll see.
The General Assembly
This might prove interesting in January.
Republicans and perhaps a couple of Democrats will introduce bills to stop the mandatory “training” of government employees in critical race theory-driven anti-racism conversion sessions, and to ban the assumption that any employee is racist without direct proof.
Government Employee Unions
The government employee unions may be in the toughest position of all. They will not be able to avoid the issue. They will damn Ralph Northam in private for making them deal with this.
If they will not defend their members against this government-directed onslaught against the dignity, privacy and civil liberties of their members, they risk losing all credibility.
But there will be problems with parts of the membership no matter what position they take.
Political Parties
The Democratic party in Virginia is better funded and organized than the Republican party. It will have no choice but to support the Governor’s mandatory anti-racism training regime.
As for the Republicans as a party, don’t expect much.
The Legal Profession
The civil liberties bar won’t sit this one out. I am not an attorney, but I expect Hans Bader or another attorney to weigh in directly on this here.
I don’t expect the critical-race-theory bar to remain silent either. Critical race theory originated in the 70’s with Derrick Bell and other African American lawyers trying to set a predicate for defending blacks accused of crimes. They won’t stand by idly.
The Courts and the Department of Justice
There are certainly federal legal issues involved. When the issue gets to federal court depends on the Justice Department Civil Rights Division and the civil liberties bar.
The Federal Department of Education
The issue for the Department of Education is whether state and local governments have failed to comply with:
- Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. – prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance; and
- and 20 U.S.C. § 1094(c)(3)(B) – Education program participation agreements and 34 CFR 668.71(c) Student Assistance General Provisions – Misrepresentation.
See the Department of Education’s September 16 letter to Princeton’s President for the direct parallels with what our Governor has done.
Since you became President in 2013, and in exchange for well over $75 million in federal Title IV taxpayer funds alone, Princeton University (“Princeton”) has repeatedly represented and warranted to the U.S. Department of Education (“Department”) Princeton’s compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. Title VI provides no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Also, Princeton has made many material nondiscrimination and equal opportunity representations to students, parents, and consumers in the market for education certificates during this time.
On September 2, 2020, you admitted Princeton’s educational program is and for decades has been racist. Among other things, you said “[r]acism and the damage it does to people of color persist at Princeton …” and “[r]acist assumptions…remain embedded in structures of the University itself.” You also said that Princeton is “exploring the possibility of a new credit- or degree-granting program that would extend Princeton’s teaching to a new range of students from communities disproportionately affected by systemic racism and related forms of disadvantage…” Id. Because of racism, you announced race-based “diversity” measures for hiring, procurement, teaching, fellowship, and research funding.
Based on its admitted racism, the U.S. Department of Education (“Department”) is concerned Princeton’s nondiscrimination and equal opportunity assurances in its Program Participation Agreements from at least 2013 to the present may have been false. The Department is further concerned Princeton perhaps knew, or should have known, these assurances were false at the time they were made. Finally, the Department is further concerned Princeton’s many nondiscrimination and equal opportunity claims to students, parents, and consumers in the market for education certificates may have been false, misleading, and actionable substantial misrepresentations in violation of 20 U.S.C. § 1094(c)(3)(B) and 34 CFR 668.71(c). Therefore, the Department’s Office of Postsecondary Education, in consultation with the Department’s Office of the General Counsel, is opening this investigation. …
Based on the facts, the Secretary of Education may consider measures against Princeton for false Program Participation Agreement nondiscrimination assurances, including an action to recover funds. Also, she may consider measures against Princeton for making substantial misrepresentations about the nature of its educational program, including a fine proceeding. The Department is aware of the challenges posed by COVID-19 to institutions of higher education. However, the serious, even shocking nature of Princeton’s admissions compel the Department to move with all appropriate speed.
There are enormous amounts of federal education money at stake in Virginia. See the VDOE website for the federal programs, including CARES Act education funds, that are threatened.
Well done, Governor.
