Not A Rubber Stamp After All

by Dick Hall-Sizemore

Governor Youngkin just got a lesson on how being governor is different from being CEO of a hedge fund. He just cannot get what he wants by fiat.

The Board of Education, on which his appointees constitute a majority, on Thursday rebuffed the administration on two of its top priorities — Standards of Learning for History and Social Science and school accreditation.

Despite our Jim Bacon’s plea that the Board of Education stick to its guns and support the revised History Standards proposed by the Department of Education, the Board, after four hours of listening to opponents of the proposal and discussing it among themselves, voted 8-0 not to accept them and directed the department to come back with a revision that used the November version as a base and incorporated elements of the version proposed by the previous board under Governor Northam.

In a comment to Jim Bacon’s earlier article, I summarized some of the opposition expressed by speakers during the public session and by board members, including Youngkin appointees. Therefore, I won’t repeat it here.

Perhaps in an attempt to save face, Governor Youngkin himself expressed dissatisfaction with the revised proposed Standards. After the Board meeting, he declared, “I said from the first day that I wanted us to teach all of our history, the good and the bad — all of it — and that’s been the directive that I’ve given to our Department of Education is to make sure that our history curriculum engages on all facets of our history, particularly those that are sometimes hard to talk about. I have to say that the process to date is one that I think hasn’t delivered that. And I’m disappointed. I don’t think we’re where we need to be.” (This is called “throwing the Superintendent under the bus.”)

The governor and his education appointees, the Secretary of Education and the Superintendent of Public Instruction, have expressed much dissatisfaction with the local school accreditation standards currently in place. In response to national test results, the governor directed the Department of Education to revamp the  accreditation standards by the beginning of the next school year.

Unlike the Standards of Learning, the accreditation standards are regulations and subject to the Administrative Process Act (APA). The APA requires extensive periods of administrative review along with public hearings and public comment before a regulation can be adopted. Under that process, it would not have been possible to get a new set of accreditation standards and requirements in place by the beginning of the 2023-2024 school year.

There is, however, a provision in the APA that authorizes emergency regulations. Under this process, much of the time for public input is eliminated and a regulation can be promulgated much faster. An agency or board cannot elect to use the emergency regulation process on its own. It must request authorization from the governor to do so. By the same token, a governor cannot direct a board to utilize the emergency regulation route; the board has to submit a request to him.

At the board’s work session on Wednesday and the business meeting on Thursday, Jillian Balow, the Superintendent of Public Instruction, requested the Board to seek authorization from the governor to develop and adopt new accreditation standards as emergency regulations. As the Richmond Times-Dispatch reporter phrased the reaction, “The board was not convinced.”

Alan Seibert, a Youngkin appointee, explained his reluctance this way: “I get the enthusiasm of that, I just question the wisdom of it. I’m afraid we could just lose everything that we could accomplish. A year to build it thoughtfully, with people in the commonwealth of Virginia who have been asking for modernization of assessment accountability for years — there’s enthusiasm and desire to do this. To do it in an emergency fashion, rather than urgent fashion, would squash the opportunity to really capitalize on that enthusiasm about doing this right, doing it well.”

In the end, the board declined to move to request emergency authorization from the governor. Instead, it asked the department to come back at the next meeting in January with some draft proposals for it to consider. Defeated, Balow said, “We will come back with [regulations]. Again, that is not my preference, but we will concede this.”