Virginia’s Recover, Redesign and Restart 2020 Manifesto – Legal Status

by James C. Sherlock

Recover, Redesign and Restart 2020, discussed yesterday here, was presented as a set of “guidelines,” but the Governor’s manual for re-starting public schools this fall amidst the COVID-19 epidemic included a mandatory reporting provision clearly designed to intimidate schools and school boards.

Let’s look at the legal status and implications of those guidelines.

Following the Governor’s unbroken pattern, the General Assembly was not called into session on this crucial matter, but rather a massive panel of “stakeholders” was convened with more than twice as many members as the elected General Assembly.

The members of the panel apparently considered its constitutional and legal questionability, preposterous length, pedantic unreadability, bureaucratic checklists, designated spaces for self-criticism in the Maoist tradition and internal contradictions to be features not bugs. The rest of us not so much.

See Constitution of Virginia Article VIII. Education
Section 1.  Public schools of high quality to be maintained

The General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth….

Section 5.  Powers and duties of the Board of Education

The powers and duties of the Board of Education shall be as follows:
(e) Subject to the ultimate authority of the General Assembly, the Board 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.

Section 7.  School boards

The supervision of schools in each school division shall be vested in a school board, to be composed of members selected in the manner, for the term, possessing the qualifications, and to the number provided by law.

Recover, Redesign and Restart 2020 was not issued as an executive order under Title 44, chapter 3.2, Emergency Services and Disaster law § 44-146.17. Powers and duties of Governor, so it does not have the force of law as an emergency order under the Governor’s emergency powers.

Recover, Redesign, Restart 2020 is not a regulation, because the regulatory process was not followed (and there was sufficient time to do so before the August school start).

§ 22.1-17. Statements concerning regulations.
Not less than sixty days prior to the adoption of any regulation affecting school divisions, the Board of Education and the Department of Education shall prepare a statement as to the administrative impact of such regulation on school divisions and the projected costs of implementation of and compliance with such regulation and shall send a copy thereof to each division superintendent.

Recover, Redesign, Restart 2020 was not a statute, not an executive order and not a Board of Education regulation, so the school boards remain in charge.

§ 22.1-79. School Boards: Powers and duties.
A school board shall:
5.
Insofar as not inconsistent with state statutes and regulations of the Board of Education, operate and maintain the public schools in the school division and determine the length of the school term, the studies to be pursued, the methods of teaching and the government to be employed in the schools;

The problem is that mandatory reporting provision. It is designed to intimidate not only school boards and public schools, but also private schools.

As a result of those guidelines, schools can be sued

  • for following the guidelines, which have disparate impact on the poor, and
  • for not following the guidelines if they have a single case of COVID.

Senator Bill DeSteph, R-Virginia Beach, reports that some school superintendents have pitched this to their school boards as directive from the Governor. It is not. He also reports the superintendents are saying if we don’t follow the Governor’s directive, he will cut funding to schools. That power resides with the General Assembly of course, not the Governor.

Recover, Redesign, Restart 2020 is a perfect product of a government committee of “stakeholders”. It simultaneously

  • guides to disparate impact because of the instructional program design it recommends; and
  • guides to avoid disparate impact in a separate section on educational equity.

A committee can have it both ways. Local school boards and public and private schools cannot. They have been put in a lose-lose situation.

And the Governor did not consider the General Assembly necessary or useful in this matter. I suspect the feeling is mutual.

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16 responses to “Virginia’s Recover, Redesign and Restart 2020 Manifesto – Legal Status

  1. Press release from DeSteph’s office today:

    … the Governor’s representative, Chief of Staff Clark Mercer, acknowledged that, as stated by Senator DeSteph, it is the individual school districts that have the authority to set school schedule. Not the Governor.

    “Each district has flexibility to come up with its own plan that they will submit to the Department of Education. What the state has put out is guidance based on CDC guidelines. Some districts may want more distance learning, many will want less- we would expect many districts to be at regular capacity when the school year begins.”

  2. Exactly, school districts around the Commonwealth are working to develop a plan that meets CDC guidelines. We are seeing similar action in higher education. Evidencing a disregard for these guidelines could put them at legal risk as well as detracting from the safety of students and staff.

  3. Jim Sherlock is getting too excited again and accusing the administration of requiring things for which it has no legal authority to do. It is not clear what “mandated reporting provision” he is talking about. I assume it is the requirement that schools submit their reopening plans to the state.

    It is true that “Recover, Redesign and Restart 2020” was not issue as an executive order under Title 44. However, under the “Health and Instructional Plans for Reopening” section on the BOE website, there is a link to an order from the Public Health Commissioner. That order sets out the Health Commissioner’s authority under Sec 32.1-13 and 32.1-20 of the Code of Virginia to require these plans due to the existence of a health emergency. https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/VDH_Order-re-School-Reopenings-Mitigation-Plans_6-9-20.pdf

    Having the legal authority to take certain actions does not ensure that those actions are necessarily wise or the best actions to take and I have my doubts about the efficacy of the Governor’s plan to reopen schools in the fall, but that is another question.

  4. Dick, I am not excited, but rather dismayed.

    The Governor’s Chief of Staff took the opportunity to utterly misrepresent what is in Recover, Redesign, Restart 2020.

    He clearly did not read either Recover, Redesign, Restart 2020 or the CDC guidelines when he said “What the state has put out is guidance based on CDC guidelines.”

    That is simply not true, and it would have been a far superior product had they done so. You would think that the task force could have found space in a 136 page document for the actual 8-page CDC guidelines, but they did not.

    The CDC guidelines are at https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/schools.html. Read them. I sincerely hope the school superintendents are doing so instead of the state manifesto.

    The meat of Recover, Redesign, Restart 2020 that has school division superintendents on edge is:

    “Local Division Plans
    “Before entering Phase II and III, every school in Virginia will be required to submit to the VDOE, and make publicly available, a plan outlining their strategies for mitigating public health risk of COVID-19 and complying with CDC and VDH recommendations, including face covering policies and procedures. The Virginia Council for Private Education (VCPE) will receive plans submitted by private schools accredited through a VCPE Approved State Recognized Accrediting Association.”
    “Additionally, public school divisions will be required to submit to the VDOE, a plan for providing new instruction to all students in the 2020-2021 academic year, regardless of phase or the operational status of the school at the time. This plan must also include strategies to address learning lost due to spring 2020 school closures. This should include a plan for fully remote instruction should public health conditions require it. Plan templates and additional guidance from VDOE is forthcoming.”

    Again, “Plan templates and additional guidance from VDOE is forthcoming.
    The superintendents are pretty sure the “plan templates and additional guidance” will mirror pretty much exactly the 136 page document already published.

    What happens to these plans at the VDOE end? Do they read each of them? Store them in the cloud? Count how many of the checklists are missing checks? Record the self-criticism sections for re-education seminars?

    I find a consistent pattern.

    Every time I point out the “inconsistencies” between the Constitutions of the United States, Virginia and the Code of Virginia on the one hand and the Governor’s and the Virginia Supreme Court “emergency” orders on the other, those on here who favor the outcomes of the orders dismiss the process and legal issues.

    Three suggestions:
    – Be careful of dismissing the importance of rule of law.
    – Be careful of taking the words of politicians and bureaucrats without checking the source material. The Chief of Staff could not have been more wrong in this case.
    – Be a little more analytical in judging if “emergency” orders require dismissing participation of the General Assembly.

    Next time you might not like the outcome.

    • I am not “dismissing” the process and legal issues. I care deeply about the rule of law. I am not pushing back on your claims of “inconsistencies” regarding the Constitution and Virginia law because I favor the outcome. I don’t like the result produced by the state Dept. of Education.

      However, that does not diminish the fact that DOE is acting within the law.
      Sec. 22.1-8 of the Code of Virginia: “The general supervision of the public school system shall be vested in the Board of Education.”
      Sec. 22.1-79, regarding the powers and duties of the local school boards–“7. Perform such other duties as shall be prescribed by the Board of Education….”
      Sec. 22-1-23, regarding the duties of the Superintendent of Public Instruction–“8. Perform such other duties as the Board of Education may presecribe,”

      The document, “Recover, Redesign, Restart 2020”, was signed off on by the chairman of the Board of Education.

      As for what happens to the local plans submitted to VDOE, it will be a bureaucratic mess, especially if the DOE staff is telecommuting. I am glad I don’t have to be one of those reviewing those plans.

      • By the way, in your listing of Constitutional provisions regarding education, you skipped over, or ignored, Section 4 of Article VII:

        “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.”

  5. It would be nice if the Commonwealth could retain some semblance of the rule of law as it seems to increasingly be absent at the federal level.

  6. You do realize that this is all going to happen again, possibly within your lifetimes, right?

    I know you guys are all keen on hamstringing the governor and getting the GA involved soon, or sooner, in any such next occurrence, but I’d rather we establish an appointed board of non-elected experts. Buy them if necessary.

    We will lose 200,000 before the election and entirely because of politics and American Politically Exceptional Stupidity.

    • Define expert. Fauci proved that medical experts can know a lot but can predict nothing about diseases for which they have no baseline. Economists? pick your “school” of economic thought. You get the idea.

      I believe we need better elected officials. Smart and honest managers of the peoples’ governments. Not a lot of that going around.

      Harder to recommend a smart and honest person enter into politics than into policing. Both must depend upon a bureaucratic system to sustain them that has fallen well short of basic competence lately. Risk/reward is heavily weighted towards risk.

      • Well, by definition, not elected nor appointed by those who are.

        Fauci would have been very effective without Trump. Bush and Fauci did okay with and after SARS. At least they recognized what had to be in place for COV2.

        In the late 50s, the various branches of government hired the Rand Corporation to put together contingency and evacuation plans in the event of nuclear war. The plans were OBE within a decade, but they would have been effective at the time.

        One just needs to review such plans carefully because they all had one thing in common — the plan principle authors were listed on each one as evacuees.

        I know that at least 20 years of the Navy has whipped this sort of thing out of you, but you’re retired, it’s okay to say it, repeat after me, “Trump is an effing moron.”

        • Like all of us, I am stuck considering the two bad alternatives in November.

          • Nancy_Naive

            No. There’s no good alternative, but there is one really rotten one. To paraphrase, “In your heart, you just know there’s something wrong with that child.”

  7. Regarding sherlock’s comment, “What happens to these plans at the VDOE end?”

    The smart school board should do what I do in my course syllabus — purposefully input incorrect pages to be read to see if any student catches it.
    In fourteen semesters, exactly one student has brought the discrepancy to my attention.

    The board proposal should include deep in the bowels of its pages some silly mandate – like wearing hats of aluminum foil – to see if anyone at VDOE reads the entire document.

  8. Virginia’s Recover, Redesign and Restart 2020 Manifesto reminds me of the infamous 130-page single-spaced “Handbook For Institutions Seeking Reaffirmation.” Issued by the Southern Association of Colleges and Schools Commission on Colleges, that incompetent and corrupt oversight authority used it to investigate “the integrity of UVA Board of Visitors that removed Teresa Sullivan as UVA president.” This remarkable process was led by a former Virginia Secretary of Education.

    “For a taste of the Commission’s mandates applicable to UVa, see the 130-page single-spaced document entitled, “Handbook For Institutions Seeking Reaffirmation.” It requires, among other things, that UVa’s staff exhibit a spirit of collegiality when visited by the Commission, and that the staff maintain current knowledge and understanding of Commission policy as it permeates all aspects of the University — presumably because UVa’s Accreditation process (like that of all members) is an ongoing one.

    This is quite extraordinary. Higher education is simultaneously facing an affordability crisis, driven in large part by administrative bloat, and disruptive change from the challenge of online learning. At a time that the University of Virginia needs to be leaner and nimbler, the Southern Association of Colleges and Schools Commission on Colleges is encumbering it with more rules, more procedure and more administrative review on what appears to be a continual basis. Equally disturbing, the Commission represents another powerful constituency, along with students, faculty, alumni, state government and other stakeholders, that must be placated and catered to, under possible threat of sanction.

    The notion that an accrediting commission can lecture the University of Virginia, one of the most prestigious universities in the country, on how to govern itself is simply breathtaking. UVa is a public institution. While there are legitimate questions regarding the organization and conduct of the Board of Trustees, that debate should take place between the University, its stakeholders, Virginia’s political leaders and Virginia citizens – not an unelected, self-appointed overseer from Georgia, however voluntary that association purports to be.

    The Commission’s reach over University policy rivals that of the State Council on Higher Education in Virginia (SCHEV). The Commission requires the University to periodically reaffirm its accreditation and submit to re-reviews when it substantially modifies or expands the nature and scope of its activities, including the delivery of its services. Changes can trigger a host of mandates. For example, UVa must document that it meets the Commission’s Principles of Integrity, Core Requirements, Comprehensive standards, Federal Requirements, and Commission policies — including its commitment to Commission Philosophy.

    Integral to this process is a mandate that UVa document its ongoing progress in improving programs and services. That effort entails identifying key emerging issues and addressing those issues by means of a Quality Improvement Plan that involves all stakeholders, establishes achievable goals, allocates adequate resources and focuses on learning outcomes, all under a system, including governance, that facilitates the student’s “total development.” All this is detailed in the 130-page, single-spaced, “Handbook For Institutions Seeking Reaffirmation.”

    Not only are the Standards for Accreditation burdensome, intrusive and subjective, an air of coercion permeates the Commission’s micro-management approach to enforcing the mandates. Indeed, it’s not a stretch to view the Commission as an imperialistic entity bent upon increasing its power, imposing its values and extending its reach, even into the smallest details of the University’s governance, administration, curriculum, and teaching practices. The aim to establish a global presence, articulated in the Commission’s strategic plan, confirms the view of an entity whose ambitions apparently know no bounds.

    The imperial mindset can be seen in a staff roster that consists of all chiefs and no indians … ”

    For more of this story of clueless bureaucrats armed with with their own politicized busywork and ill placed authority, see:

    https://www.baconsrebellion.com/wp/who-runs-uva/

  9. It is almost universally the case that when an oversight bureaucracy fails in its mission, and its failures might be exposed to the public, that incompetent bureaucracy most always engages in defensive maneuvers to hide and scapegoat its failures. This happened with Southern Commission on Colleges, like it is happening now within Virginia with regard to health and education.

    Here is a post on BR on that subject back in 2012.

    “The Southern Commission on Colleges has far better subjects for its oversight activities than the University of Virginia’s Board of Visitors.

    by Reed Fawell III

    Despite the fracas last summer between University of Virginia’s Board of Visitors and President Teresa Sullivan, or perhaps because of it, the university has charted a bold new course, as reflected in its recently published 2012-2013 Consolidated Budget.

    Budgets are rarely inspirational. This one is. Setting a new direction for the 193-year-old institution, the budget is detailed and comprehensive, even in summary. It’s also blunt, perceptive, targeted, and visionary. The university is initiating a new financial model that facilitates multi-year strategic planning, integrates University-wide functions, identifies opportunities to grow revenues and finds efficiencies to contain costs. The budget aims to strengthen faculty by increasing pay and recruiting new professors. It incorporates distance learning. If there’s a huge problem with UVa’s governance system, it’s not readily apparent …

    Given the progress made at UVa since Sullivan’s reinstatement, why has the Southern Association of Colleges and Schools Commission on Colleges (the “Southern Commission”) chosen this moment to investigate the integrity of the university’s Board of Visitors? Why would it mention publicly that one possible outcome of its review could be dis-accreditation — a drastic sanction that, among other repercussions, would render University students ineligible for federal loans and grants? Upon what basis does the organization claim the powers of a grand inquisitor standing in judgment of the board?

    The assertiveness of the Southern Commission is all the more remarkable considering that the University consistently ranks among the top two or three most prestigious public universities in the country, far exceeding the minimal academic standards required for accreditation. Moreover, Kiplinger ranks UVa ranks number one among the nation’s public institutions for serving students in financial need. The publication uses three criteria: the cost of a degree versus its value to the student, the certainty of timely graduation, and the value of Virginia’s aid package to the student. Meeting these standards assures needy students the best-quality education at the lowest price and positions them to quickly pay off their loans.

    Using these tests, the University ranks #1 nationally in graduating students on time. It’s tied with UNC for #1 aid package. It’s ranked #3 in overall value nationally among public institutions, irrespective of student need. Only UVa and UNC in Kiplinger’s ranking meet the full financial needs of enrolled students. Average annual cost for in-need students overall is only $5,138.

    By nearly all measures, UVa out-performs every other public college and university, except UNC, under the Southern Commission’s purview. Yet accreditation issues are rampant among many of the Commission’s member institutions, particularly the extent of student loans and grants. College costs and student debt are soaring. Nationally, total student debt exceeds credit card debt, surpassing $1 trillion and increasing at the rate of $100 billion annually.

    These cost are rising even among students graduating on time. But most don’t. Many colleges accredited by the Southern Commission graduate fewer than 25% of those who enroll. Many take six years to earn a four-year degree, dramatically increasing their cost and debt — and they’re the lucky ones. At least they get a degree. Others simply get a bill. Dropout rates are scandalous. Many students pay for years before dropping out. Of those who do manage to graduate, some discover that they have earned worthless degrees. Forty-five percent of students learn “nothing” their first two years at college, and 36% have still learned nothing after four years, according to Professors Richard Arum and Josipa Roksa who tested 2,300 students from the Class of 2009 that attended 24 accredited colleges. (See “Academically Adrift: Limited Learning on College Campuses.”) …

    Given the progress made at UVa since Sullivan’s reinstatement, why has the Southern Association of Colleges and Schools Commission on Colleges (the “Southern Commission”) chosen this moment to investigate the integrity of the university’s Board of Visitors? Why would it mention publicly that one possible outcome of its review could be dis-accreditation — a drastic sanction that, among other repercussions, would render University students ineligible for federal loans and grants? Upon what basis does the organization claim the powers of a grand inquisitor standing in judgment of the board?

    The assertiveness of the Southern Commission is all the more remarkable considering that the University consistently ranks among the top two or three most prestigious public universities in the country, far exceeding the minimal academic standards required for accreditation. Moreover, Kiplinger ranks UVa ranks number one among the nation’s public institutions for serving students in financial need. The publication uses three criteria: the cost of a degree versus its value to the student, the certainty of timely graduation, and the value of Virginia’s aid package to the student. Meeting these standards assures needy students the best-quality education at the lowest price and positions them to quickly pay off their loans.

    Using these tests, the University ranks #1 nationally in graduating students on time. It’s tied with UNC for #1 aid package. It’s ranked #3 in overall value nationally among public institutions, irrespective of student need. Only UVa and UNC in Kiplinger’s ranking meet the full financial needs of enrolled students. Average annual cost for in-need students overall is only $5,138.

    By nearly all measures, UVa out-performs every other public college and university, except UNC, under the Southern Commission’s purview. Yet accreditation issues are rampant among many of the Commission’s member institutions, particularly the extent of student loans and grants. College costs and student debt are soaring. Nationally, total student debt exceeds credit card debt, surpassing $1 trillion and increasing at the rate of $100 billion annually.

    These cost are rising even among students graduating on time. But most don’t. Many colleges accredited by the Southern Commission graduate fewer than 25% of those who enroll. Many take six years to earn a four-year degree, dramatically increasing their cost and debt — and they’re the lucky ones. At least they get a degree. Others simply get a bill. Dropout rates are scandalous. Many students pay for years before dropping out. Of those who do manage to graduate, some discover that they have earned worthless degrees. Forty-five percent of students learn “nothing” their first two years at college, and 36% have still learned nothing after four years, according to Professors Richard Arum and Josipa Roksa who tested 2,300 students from the Class of 2009 that attended 24 accredited colleges. (See “Academically Adrift: Limited Learning on College Campuses.”)

    Instead of turning its inquisitorial gaze upon UVa, the Southern Commission would do well to examine some of its 800 member institutions with demonstrable problems. Take Texas. Seventy-nine of every 100 public college students in Texas start in junior college. Only two of those 79 earn a 2-year degree on time; only seven graduate in four years. Only 5 of 21 students who begin at a four-year Texas college graduate on time, and only 13 of those 21 earn a degree after studying for eight years. Far too often, college students throughout the other ten southern states accredited by the agencyconfront similar fates. Four-year graduation rates include:

    Florida – 35.6%
    Georgia – 24.3%
    Kentucky – 20%
    Louisiana – 15.8%;
    Mississippi – 22.4%
    North Carolina – 36.5%
    Tennessee – 31.9%
    Virginia – 45%
    West Virginia – 22.2%

    The reasons are many for such drop out rates. Students often are not prepared for college work but are admitted anyway. Many get lost in higher education’s “Bermuda Triangle,” taking so many remedial courses they never get to take a college course for credit. But they get the bill, and oftentimes too so does Uncle Sam.

    Who is supervising this awful state of affairs? The leaders of the Southern Commission include:

    The president of Delta State University, which graduated only 19.9% of its four-year students within four years. Fewer than half (46.6%) matriculate within six years. Its president is chairman of the Commission.

    The president of Huston-Tillotson University, which graduated some 11.5% four-year students in 4 years, while another 12.7% earned a degree after six years.

    Along with the chairman and vice chairman, the presidents of 11 other colleges sit on the Commission’s powerful Executive Council. A sampling of their four-year graduation rates ranges from 13.1% to 22%.

    What are these leaders doing, and why? Who knows? Over its 60-year history of accrediting colleges to qualify for Federal student aid, the Southern Commission, as best we can tell, has never revoked an accreditation unless the member was on the verge of bankruptcy anyway. Nor has it established, published, or enforced clear fact-based performance standards that work to insure that our students in need receive the education they pay for. Why? And why instead is the Commission investigating the University of Virginia?

    For more, see:
    https://www.baconsrebellion.com/wp/inquisitor-investigate-thyself/

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