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:
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.