Northam Back-to-School Plan Unconstitutional, DeSteph Says

by James A. Bacon

Wise King Ralph may have a problem with his back-to-school plan for this fall: Some of his subjects think it may be unconstitutional.

Under the Governor’s directive, schools will return to something resembling normal in three phases. The most controversial part of the plan requires staggering classes so students attend in-person some days and remotely on others. Critics have questioned the quality of teaching that can occur in such an environment, and have noted that keeping kids at home makes it difficult for parents to go back to work.

Senator Bill DeSteph, R-Virginia Beach, issued a letter yesterday saying that the plan is not only misguided, but it is unconstitutional.

Despite the emergency authority being executed by your office, it is the General Assembly, not the Governor, that is given the power and authority to formulate the policies in our educational system for school boards to apply. Your plan announced June 9th is best characterized as gubernatorial overreach.

Article VIII, Section 1 of the Constitution of Virginia explicitly states, “The General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth….” In Section 7, it is quite clear that the supervision of the schools in each school district will be vested in the school board. The Constitution of Virginia does not grant the Governor the power or legal authority to intervene in the schedules of public school districts. The school board in each locality has the authority and is best-suited to make these decisions.

It is also worth noting that our public schools look to the Virginia Department of Education (VDOE) for guidance, not decree. We have received communications from both the VDOE and our local school division, Virginia Beach City Public Schools, that misrepresent the role and authority of the VDOE. Again, individual school boards are empowered with decision-making at the local level, not the Governor or the VDOE.

The Governor has said he intends to reconvene the General Assembly in August. If he does so, the school-reopening issues should be addressed by the legislature at that time, DeSteph said.

Bacon’s bottom line: Be careful, Wise King Ralph, don’t let your emergency powers go to your head. You are acting like a monarch, not a governor, and the peasants are getting restless.

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30 responses to “Northam Back-to-School Plan Unconstitutional, DeSteph Says

  1. I assume that King Ralph will try to keep this issue out of Virginia Courts by making a public statement that the nature of the emergency precludes court challenges to his decrees. The Chief Justice of the Virginia Supreme Court denied access to the courts for landlords in order to support the royal decree. It worked earlier, maybe again.

  2. The safety of students and staff will always be the number one priority of local school boards. They do not want an outbreak or worse deaths at one of their schools. Hence, they will follow CDC and VDOE guidance as a wise precaution. Despite what Bill DeSteph might think, these officials will act in what they feel is the best interest of their schools. It would be nice if DeSteph could be part of the solution. Jim really does appear to have a “King” complex.

    • And why would you assume schools would work for the best interests of students and [teaching] staff? Fairfax County Public Schools had a significantly large staff that operated its proprietary Blackboard distance access system; had more than a month to launch it; discovered it wouldn’t work, in large part because the software had not been updated in three years; and even allowed the assistant superintendent in charge to retire with access to two separate pension plans for the same job/career. Students and teacher first.

      Talk to some of the front line teachers and get their views about the benefits or lack thereof from the central staff. I used to ask teachers what value they thought 200 plus curriculum specialists provided. I can’t print all the adjectives they used. Ask the staff at McLean High School what they think of the Division’s efforts at addressing overcrowding at the School.

      • On some levels,it’s pretty simple. If we develop protocols to help the child of two educated and financially-secure parents then why can’t we also find the right way to educate kids of lesser educated parents of limited means?

        If we provide extra resources to educate kids with English as a second language why not kids who have English as a first language but other disabilities?

        The word being used now is Equity. What does that really mean in the context of pubic schools?

        If we say we cannot do that – then what is the benefit of public education to those kids of less-than-ideal circumstances – and in fact, the rest of society that the concept of public schooling was supposed to serve?

        • Not all students learn the same, speak to a teacher before making blanket statements that are easily refuted.

          https://www.vox.com/2020/4/21/21223585/school-closure-impact-students-children

        • Give me a break! We already provide additional resources to kids who come from low-income families who have either one or two parents at home. There are also resources for those parents seeking assistance with helping their kids.

          We spend lots and lots of money on kids with disabilities, both physical and emotional.

          What is the obligation in return?

        • You speak of equity, but tell me this: Do you believe in equal opportunity or do you demand equal outcome?

          • I do not believe in equal outcomes but I do believe that the concept of equal opportunity is in the minds eye sometimes.

            At risk kids can be taught successfully – are taught successfully but it take the right kind of resources and those resources are often not sufficiently available in low-income neighborhood schools.

            Kids (white and black) of parents who are not well-educated nor economically secure – do not learn the same way that kids of educated, economically secure parents.

            It’s much hard to teach those kids. The question is do we give up on those kids because we fail to bring enough of the right resources to teach them? Are those kids essentially out of luck because of their disadvantaged circumstances even if they have normal IQs?

      • My comment was about school boards not central staff. As a front line teacher for 20 years, I am well aware of the criticism of central staff. Spend a little time with the teachers and administrators in a school and see if overall they aren’t busting their butts for the students and the school. School board members stand for election every few years and can be voted out of office should they fail to adequately support the students and staff. Nobody will try to tell you that everything a district does is perfect.

        • Anytime a group of teachers want to stand in protest against the size and pay of central staff, I’d like to join them.

          A few years ago, Fairfax County Schools had a shortage of about 200 teachers. The superintendent requested that central staff consider going back to the classroom. How many did? Zero. It’s all about the kids – not.

    • Not all school boards agree that the Governor’s course of action is in their students’ best interests.

      https://www.heraldcourier.com/news/local/tazewell-school-board-considers-legal-action-to-reopen/article_1d157cd3-96e4-5f1c-800e-2d661f535a60.html

      • It’s true and thank you for posting it. It could well be that much of rural Va does want to re-open.

        • They do. I’m right here in the middle of them.

          • Do you know if they just want to re-open like it was before or are they proposing changes like masks and social distancing…classroom changes, etc?

          • I have not heard any calls to resume as prior to the pandemic, but with some precautions. I’ve even heard discussions proposing allowing families to choose whether to physically send their students to school or allowing for an online option. In that scenario, teachers would be given the same option- teach from school or teach from home. That way, younger, healthy teachers could be with the kids that chose to come to school and the older, more medically fragile teachers can work online with the students who chose not to come to school.

            However, the guidelines as issued by the state most find unworkable. For example, by following the guidelines, you might be able to get maybe 10 students on a bus at one time. Those buses normally carry 40+ students.

            I personally don’t think there is a right path forward that can be applied consistently across the state. This should be a local decision. While the state says it is, but it really isn’t. The guidelines they have issued are very onerous and will significantly and negatively affect the outcomes for all of our our at-risk students. This doesn’t take into account the varying levels of risk associated with each of the geographic areas/localities across the state.

            We also have to keep in mind that everything is a risk/benefit analysis. We cannot guarantee 100% safety for anything. We couldn’t guarantee that every student would be safe prior to Covid-19. This is really a decision to be made at the local level.

  3. It only took Virginia’s Republicans three months to wake up. That must have been one hellava St Patrick’s Day party. There’s plenty of money rattling around in the overstuffed bank accounts of Republican politicians in Virginia. Time to go full throttle after King Ralph and all Democratic politicians in Virginia. Keeping kids out of school absolutely hurts less affluent families more than more affluent families. Less affluent families and many middle class families aren’t working from home and need to get back to work to reclaim their jobs as the economy reopens.

  4. Notice that the basic argument from the “anti” folks is to essentially re-open the schools like they were before. In other words, they are opposed to the proposed split-shifts/split weeks so they just keep peddling the “King Ralph” and “unconstitutional” foolishness…

    As far as I can tell, no public school, indeed no private schools are proposing to open up like they were before.

    So what do the critics really want?

  5. I had said this earlier this week, but late in a thread, so I’ll repeat it for the “Good King Ralph” types of my Republican friends.

    To paraphrase the lines of Orson Welles, “The Republicans have laid claim to moral certitude and political intellectual superiority for the last 50 years, and what do we have to show for it? Donald Trump.”

    At least the Swiss gave Orson the cuckoo clock. You giuys are just giving us the bird.

  6. Who is deSteph and why should I care?

    • He is a public official (Virginia State Senator). Did you read the article or did you simply dismiss him since is not on your team? I thought that actions and statements of Virginia public officials are fair game for this blog. However, I am new and may not have the secret decoder ring for the unspoken rules.

    • James Wyatt Whitehead V

      Mr. Peter I think people eventually cared about what happened in Prince Edward County years ago. We should care about the delivery of the best possible strategy to deliver education before another year is lost and unrecoverable.

  7. Sbostian. A google search shows he is not a lawyer or a judge. Why should I care if he thinks something is unconstitutional? Would you care if I came out with a statement that something is unconstitutional? Doubt it.

  8. And Northam doesn’t have authority in a time of a health crisis? We have to pass it down to School Boards? Good luck with that! It is the 21st century after all.

  9. It is common practice to label something you dislike as being “unconstitutional”. As a lawyer I once worked for told me, “A law is constutional until a judge says it is not.” So, if the good Sen. DeSteph thinks the Governor’s actions under the laws dealing with a health emergency are unconstitutional, I am sure there are a lot of lawyers who would be willing to represent him in a court case challenging the actions.

    That being said, I thought from the beginning that the Governor’s plan for reopening schools was unnecessarily complex and unworkable. There is plenty to criticize, but that takes some time and effort to do analysis. It is much easier to just shout, “Unconstitutional!”

  10. If we routinely elect General Assembly members who don’t have credible opinions about our state Constitution then we are closer to going down for the count than I suspected. Since when were judges and attorneys the only people who have credible opinions about our constitutions (US and Virginia). For crying out loud, GA members and our statewide officers swear an oath to uphold and defend both constitutions. By your logic, Northam is not entitled to have an opinion about constitutional issues – on second thought I could be persuaded on that point. By the way, I do care what you think about constitutional issues. I might not agree with you, but I care.

    • We frequently elect members to the General Assembly who do not have extensive knowledge of the state Constitution. As for Sen. DeSteph, he obviously skipped over, or ignored, Section 4 of Article VII. That section says very plainly: “The general supervision of the public school system shall be vested in a Board of Education of nine members, to be appointed by the Governor, subject to confirmation by the General Assembly.” Section 7 gives local school boards authority to supervise the schools in each school district. That means hiring the superintendent, the teachers, setting the school budget, siting schools, etc. Policies that apply to all schools in the “public school system” are the purview of the state Board of Education.

      As for constitutionality, yes, everyone can, and usually does, have an opinion. But the only opinions that count are those of judges, General Assembly members and Governors notwithstanding. And all opinions, to be credible, should be backed up with some sort of reasoning, not declarations.

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