Virginia’s Updated “Regulations Governing Educational Services for Gifted Students” Has Temporarily Disappeared

James Lane, Secretary of Public Obfuscation and Obstruction Education

by James C. Sherlock

Sometimes you just need to go to the documents to see what the Virginia Department of Education is up to. This example will tell you everything you want to know.

Each agency proposing a new or revised regulation is required by Virginia law to post a “Proposed Agency Background Document” on the “Virginia Regulatory Town Hall” website.

Turns out that those postings are occasionally fabulous. This is one of those times. One can see the wheels turning, including when the wheels go off the rails.

I have dissected one of particular interest to parents – Regulations Governing Educational Services for Gifted Students [8 VAC 20 ‑ 40]. 

The underlying draft regulation was first prepared on my 75th birthday, September 25, 2020  I do not consider that a personal tribute. The current version was updated as of October 16, 2020.

The first revelation in the Agency Background Document is that the revised regulation is dreadfully late.  

“An extensive review to the existing regulations was approved by the Virginia Board of Education in 2010, with the Regulations requiring changes to be implemented by 2012.

On September 17, 2020, first review of the proposed changes were accepted by the Virginia Board of Education and changes were made to support Board recommendations.”  

No explanation for the lost eight years.

As for the “Mandate and Impetus”:

“The impetus of these proposed revisions came from direction from the Virginia Board of Education to their Gifted Education Advisory Committee to review with an equity lens. Additionally, Chapter 871 from the 2020 General Assembly required the Board to review and revise.”

The 2020 Chapter 871 reference uses neither advisory committee nor equity lens nor any of the words therein. They are VDOE favorites, however, and serve many bureaucratic needs.

The VDOE “Purpose” for the revised regulations indicates:

“These regulations ensure that school divisions’ programs respond appropriately to the learning needs of gifted students, especially those students with economically disadvantaged backgrounds, those with limited English language proficiency, or those with disabilities.”

But 2020 Chapter 871  required only that gifted education programs: 

“improve the identification of student populations that are underrepresented in such programs, including economically disadvantaged students, English language learner students, and students with disabilities”; and

“consider revisions to the data collection requirements .…”

Now read the highlighted text of the draft regulation.

Try to determine how the regulation changes you just read are directed in the actual law that required identification and reporting of student populations that are underrepresented in such programs. You can’t.  

VDOE has the general authority to do what it did, but it cannot find that “mandate” in the 2020 law. It rather represents an attempt at deflection.

Then try to determine how under “Agencies, Localities, and Other Entities Particularly Affected 

“There are no disproportionately significant negative or positive effects of the proposed regulations to any specific entity.”

In addition to being a straight up lie about the greatly increased costs to every school and school district in the Commonwealth of administering the expanded processes required by this regulation, how about the negative effects on those “too many Asians” in Northern Virginia?

What did VDOE list as “Alternatives to Regulation”?

“There are no viable alternatives to updating these regulations.”


My personal second favorite part: “Public Comment.”

“Other than the proposed changes to the regulations from the Virginia Advisory Committee for the Education of the Gifted, no public comments were received.”

“Comments may also be submitted by mail, email or fax to Dr. Donna Poland, Virginia Department of Education, P.O. Box 2120, Richmond, VA 23218-2120; or by email to; or phone at 804-225-2884.”

Other than the fact that the Eagle Scouts should award a merit badge for finding this stuff, the claim of no public comment equals no public outreach. Drop Ms. Poland an email, or, better, give her a call. The regulation has been withdrawn for now, but it is lurking. She will be happy to hear from you. It is her job.

My favorite part is on the main webpage for this regulation. It is the sequence of the consideration of the draft regulation:

Attorney General Review Submitted to OAG: 10/16/2020 Review Completed: 11/16/2020

Result: Certified

DPB Review Submitted on 12/3/2020

Review Completed: 1/15/2021

Secretary Review Secretary of Education Review Completed: 1/21/2021
Governor’s Review Stage withdrawn on 04/27/2021 before the Governor’s office completed its review.

We are to believe that the Governor’s office had it for three months and it was “withdrawn before the Governor’s Office completed its review.” And immediately after the national press got hold of it and all hell broke loose.  

I’d like to think had some small part in that.

But caution, it was withdrawn with no announced date for re-submission, but they did not say they were going to start the NOIRA process over:

“Pursuant to §2.2-4016 of the Code of Virginia, the Virginia Board of Education voted to withdraw the proposed stage of the Regulations Governing Educational Services for Gifted Students at the April 22, 2021, business meeting to provide staff and Board additional time to respond to potential action items and solicit public feedback and engagement.”

The Board of Education withdrew another regulation at the same meeting with a very different statement:

At the April 22, 2021, meeting of the Virginia Board of Education, the Board voted to withdraw these regulations as they intended to start the process over by issuing a new NOIRA in the coming months.

So the Educational Services for Gifted Students regulation is sitting at VDOE and we must presume that the NOIRA process has not been stopped.   It could be re-introduced directly to the Governor for approval at any time.

That is the kind of thing lame ducks sign.

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7 responses to “Virginia’s Updated “Regulations Governing Educational Services for Gifted Students” Has Temporarily Disappeared”

  1. Great catch, Jim. You are the master of cutting through bureaucratic jargon and cant. Your years as a government contract served you well!

  2. This post raises a really important issue. It shows how bureaucrats can hide rules and regulations they know will be controversial by burying public notice deep in the bowels of a government website, knowing no one will ever see them.

  3. CJBova Avatar

    It’s like the pandemic plan that disappeared after you brought it up, or failing to post required information on contracts. There’s no one to stop these behaviors so you and others have to stake out a topic and monitor for what should be out in the open for public review and discussion. Happens all too often.

  4. vicnicholls Avatar

    Thank you Jim! Will do either now or on Sunday.

  5. Nancy Naive Avatar
    Nancy Naive

    Meh. Aside from a difficult to follow markup, what’s the deal? So they want to assure that certain impediments to identifying TAG kids are avoided. What’s the beef?

    (I’m assuming the underlined were additions/changes. The absence of strikes makes parts incomprehensible, e.g., “are may be“)

  6. DJRippert Avatar

    Sounds like a combination of disorganization and intellectual cowardice. So disorganized that a highly controversial set of regulations was put forth in an election year. Intellectual cowardice evidenced by making the proposed regulations temporarily disappear once Lane realized (or was told) this is an election year.

    The key is to make sure that all of these disappearing rules and regulations become talking point for Republican candidates for Governor, Lt Governor and the House of Delegates.

    Nothing would be better than seeing Kirk Cox or Glen Youngkin nail Terry McAuliife to the wall over these issues in a debate.

    “Yes or no, Mr McAuliffe – do you support the elimination of fast tracked math classes for students with high math aptitude?’

    It’s time to start pinning these weasels down.

    1. James C. Sherlock Avatar
      James C. Sherlock

      DJ, the entire swath of radical policies will draw fire, but the regulation for Social Emotional Learning might be the biggest landmine for the Democrats.

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