Unconstitutional Viewpoint Discrimination in Virginia K-12 Teacher Evaluation Standards

Daniel Gecker Esq., President of the Virginia Board of Education. Appointed to the Board of Education by Governor Terry McAuliffe and reappointed to a four year term by Governor Ralph Northam. Date of expiration of appointment – June 30, 2023

by James C. Sherlock

Progressives, in the fullness of their dogma, oppose the entire Bill of Rights.

The Bill of Rights is specifically structured to limit the powers of government, which progressives find not only unsuitable, but unimaginable.

In the Golden Age of Progressivism in Virginia, 2020 and 2021, they controlled the governor’s mansion, the General Assembly, the Attorney General’s Office and all of the state agencies.

With total control, they took flight.

They have always known what seldom occurs to conservatives not prone to offend the Bill of Rights.

With total control of state government, progressives can enact and have enacted laws, regulations and policies that violate both the federal and state constitutions.

They know it will take a decade or more for courts to push back. Meanwhile they can call opponents “haters.”

After which the worst that can happen is that nobody is held accountable. Except the taxpayers.

I just exposed unconstitutional viewpoint discrimination in the University of Virginia’s hiring process. that was implemented starting in 2020.

The same fertile progressive imagination is also present in the Board of Education’s new (in 2021) Standard 6. “Culturally Responsive Teaching and Equitable Practices performance indicators” (starting on page xv) in “Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers(Guidelines).

There is a helpful note in Guidelines that informs us:

Standard 6: Developed by the Virginia Department of Education with adaptations from Navigating EdEquityVA – Virginia’s Roadmap to Equity, 2021

Guidelines was approved by the Board on March 18, 2021.

EdEquity Virginia, similarly rife with unconstitutional provisions, was cancelled by the Youngkin Administration in early 2022.

But the Board is responsible for the Guidelines. And teachers will suffer under the new Standard 6 until it is repealed.

Here are two of the Guideline 6 performance indicators:

6.2 Fosters classroom environments that create opportunities for access and achievement by acknowledging, valuing, advocating, and affirming cultural and social diversity in all aspects of the learning process, including for gender, race, ethnicity, English Language Learners, and students with disabilities.
6.4 Utilizes inclusive curriculum and instructional resources that represent and validate diversity from all rings of culture that include generational, gender, religion, class, nationality, race, ethnicity, native language, ability, and sexuality by connecting classroom curriculum and instruction to the cultural examples, experiences, backgrounds, and traditions of all learners.

“Acknowledge, value, advocate, and affirm” diversity in “all rings of culture” with respect to gender. “Represent and validate” sexual diversity.

“Value”: so, teachers are not only subject to forced speech, but forced thought as well.

So, what to do if one is a teacher to indicate support for gender diversity, or diversity in sexuality (which is different than gender diversity)?

  • Join the school DEI committee?
  • Put brochures for gender transition clinics on the shelves of the classroom?
  • Cross dress every Wednesday?
  • Affirm “all rings” of his/her/they “diversity of sexuality” with both sexes to meet the standard, or does he/she/they have to include all twelve (or whatever it is this week) genders?

These “performance indicators” are as unconstitutional as the DEI hiring rules at the University of Virginia, and for the same reasons.

  • Viewpoint discrimination is unconstitutional; and
  • Practicing adherents of any of the world’s major religions cannot comply in good conscience with those job requirements.

Progressives, equally unable to imagine religion, limits on government authority and parental rights, don’t care a whit.

The Board should consider Rosenberger v. Rectors and Visitors of the University of Virginia (1995) and R.A.V. vs. City of St. Paul (1992) in its next meeting and eliminate Standard 6 as unconstitutional. Or just do the right thing. Either works.

Meanwhile, mass tort attorneys have access to the likely biggest class in Virginia history — every teacher who has been evaluated under that standard.

Into the breach, tort bar.