by James C. Sherlock
Jim Bacon yesterday was relatively pessimistic about the prospects of Governor Youngkin and his administration rolling back regulations.
The number of regulations not mandated by federal or state law is miniscule.
A mandate in law is not the only test of a regulation.
The current Virginia Board of Education’s regulations have gone well beyond the texts of the laws of Virginia to challenge parental authority and completely redesign standards and curricula in service to progressive dogma.
Most of those regulations can be modified to eliminate or change the most radical passages and still be responsive to the underlying laws as written.
The issue is that the current Board membership won’t do it. I recommend the Governor replace its membership.
One particularly infamous regulation among many is one written in response to Code of Virginia § 22.1-23.3. Treatment of transgender students; policies.
That law is comprised of a numbered list of items to be covered in the subsequent regulation. The regulation is 29 pages long and challenges both common sense and parental authority over their children.
Some paragraphs, like these, are fiercely controversial:
Gender identity is considered an innate characteristic that most children declare by age five to six (Lamb & Lerner, 2015).
School divisions will need to consider the health and safety of the student in situations where students may not want their parents to know about their gender identity, and schools should address this on a case-by-case basis. If a student is not ready or able to safely share with their family about their gender identity, this should be respected.
In the situation when parents or guardians of a minor student (under 18 years of age) do not agree with the student’s request to adopt a new name and pronouns, school divisions will need to determine whether to respect the student’s request, abide by the parent’s wishes to continue using the student’s legal name and sex assigned at birth, or develop an alternative that respects both the student and the parents.
No distinction is made in Virginia’s regulation between the schools’ treatment of kindergarteners and high school seniors. It may be the only such regulation in the country that does not.
For example, Utah’s regulation, addressing the same issue, recognizes that younger children need parental guidance:
Parental involvement is addressed on a case-by-case basis. The paramount consideration is the health and safety of the student, while also making sure that the student’s gender identity is affirmed in a manner that maintains privacy and confidentiality.
Grades K-5: Generally, the parent or guardian will inform the school of an impending transition. However, it would be appropriate to approach the parent of an elementary school student if school personnel believe that a gender identity or expression issue is presenting itself at school and creating difficulty for the student.
Grades 6-12: Generally, notification from students’ parents about their students’ gender identity, gender expression, or transition is unnecessary.
We note here that Utah’s regulation is compliant with Virginia’s law. Virginia’s Board of Education went far beyond compliance to directly challenge parents over their rights to guide the life choices of their 5-year-old kids.
This is but a single example, but the Board of Education has proven itself to be by far the most radical of Virginia’s Policy Boards.
I have suggested previously that the Governor appears to me, a non-lawyer, to have the authority under Code of Virginia § 2.2-108. Removal of members of certain boards, commissions, etc. to remove and replace members of the Board of Education. Others here have disagreed.
The Governor and, if he seeks an opinion, the new Attorney General, can determine his authority in this matter. I expect he will use all of the tools available to him.
But both the Governor and parents will be paddling upstream against a strong current if he does not fire the current members of that hyper-radicalized board.