Published Online: September 10, 2013
Published in Print: September 11, 2013, as Battle Brews in Va. Over State-Run-District Law

Va. Battle Brews Over Law Authorizing State-Run District

School boards in Virginia are planning a legal fight against a new law signed by Gov. Robert F. McDonnell that creates a state-run K-12 district for schools performing poorly academically. Such a move would challenge a policy that has been put to use in various ways by officials in such states as Louisiana, Michigan, and Tennessee seeking more direct control over struggling public schools.

The threatened lawsuit by the Virginia School Boards Association in conjunction with the Norfolk school district is an example of policy fights nationwide between local education officials and state governments that in some ways mirror the feuds between states and the federal government over the proper role of Washington in K-12 policy. But the Virginia lawsuit might bring those tensions to a new, more prominent level.

"The local districts [in Virginia] are more aggressively fighting back than you saw either in Tennessee or in Louisiana," said Jeffrey Henig, a professor of political science and education at Teachers College, Columbia University.

Perhaps adding to the tension is the fact that Virginia and New Jersey are the only two states with gubernatorial elections this year.

The Republican candidate, state Attorney General Kenneth T. Cuccinelli, is already staking out his own position on the new state-run district. In an Aug. 27 letter to Gov. McDonnell, Mr. Cuccinelli said he cannot defend the state against any lawsuits challenging the new state-run district after an "analysis of the constitutional issues involved." A statement from the attorney general's office goes on to say that Mr. Cuccinelli "certainly supports efforts to turn failing schools around," but that under the state constitution, "the supervision of public schools must remain with their local school districts."

Last month, Mr. Cuccinelli released a K-12 plan that includes more conversion of regular public schools to charters and the removal of the state's prohibition against public funding for religious schools.

Virginia Democratic candidate Terry McAuliffe, by contrast, has said that he would address inadequate school funding levels in Virginia.

Broad Reach

Virginia’s new Opportunity Educational Institution, or OEI, is authorized to take over struggling schools and change how they operate and who is allowed to operate them.

• The agency has nine members, including three appointed by the governor, as well as two members of the House of Delegates and two members of the Senate, and one nonlegislative member. The state schools superintendent is also a member, but without voting privileges. The state education department also must assign two staff members to assist the board.

• If a school becomes unaccredited, or is “accredited with warning” for three consecutive years, the OEI may take control of the school, and receive the per-pupil funding for those schools.

• The OEI can operate schools in whatever way it thinks will best steer them back to fully accredited status, “including the utilization of charter schools and college partnership laboratory schools.”

• Before the fifth year that a school operates under the control of the OEI, the agency must decide if the school should remain under its control for an additional amount of time, and if so, specify the number of years that it will be under the OEI’s control.

• Any school staff member in an OEI-operated school can choose to remain an employee of the local school division, which can then retain or reassign that staff member.

Fight for Control

The new executive-branch agency in Virginia, the Opportunity Educational Institution, or OEI, was enacted into law earlier this year. The new agency is authorized to take over operations of schools that become unaccredited, or are "accredited with warning" for three consecutive years, based on their performance on the state's Standards of Learning assessments.

The law states that the OEI board can supervise those schools in "whatever manner that it determines to be most likely to achieve full accreditation," including the use of charter school operators. Upon regaining full accreditation, schools in the OEI are eligible to return control of local school districts, but the law doesn't require it. Four schools—two in Petersburg, one in Norfolk, and one in Alexandria—are currently slated to be placed in the OEI for the 2014-15 school year.

But the agency represents the desire of Gov. McDonnell, a Republican who will leave office because of term limits, to "address failure" in public education, said Virginia Deputy Secretary of Education Javaid Siddiqi.

"The state has a duty to create a meaningful, high-quality educational experience for all students in the commonwealth," he said. "We don't believe that all schools in the commonwealth have met their constitutional requirement. So now we have to come in."

School boards have a different view. In an Aug. 21 statement announcing the lawsuit it intends to file in circuit court in Norfolk, the VSBA argued that only the state school board had the authority to create an organization like the OEI. The association also said the OEI represented the "loss of local control, dollars, and resources."

The new law also doesn't describe the "strategies or tactics" the agency will ultimately use to purportedly make schools better, said VSBA Executive Director Barbara Coyle. And new, higher cutoff scores for Standards of Learning assessments mean vast numbers of schools could ultimately be placed in the OEI, she added.

"I think there was an urgency to get something passed. And it got diluted and convoluted," Ms. Coyle said.

In public remarks, Gov. McDonnell has asserted that local control remains important for public schools, but that the OEI must go forward despite the lawsuit.

Tradition or Excuse?

But such efforts in Virginia ignore the biggest problem for struggling schools, which is poverty, argued Mark Lineburg, the superintendent of the state's 2,400-student Bristol school district, where 65 percent of students receive free or reduced-price meals. Mr. Lineburg said he's worried that the OEI eventually will take control of some Bristol schools.

"I'm not aware of anybody asking high-poverty school districts what they really need. What we really need is more ways to create time," he said, referring to offering more enriching learning activities.

Those who object to the new state agency also argue that it flies in the face of the state's strong tradition of local control over public schools.

Unlike many other states, Virginia in its constitution explicitly provides for local school boards to have control over schools. Colorado and Montana are two other states that have such explicit language in their constitutions.

"If I were the school boards, I would be looking to that" provision said Richard Briffault, a professor at Columbia Law School who has studied state governance of K-12 education.

Virginia in 2010 declined to adopt the Common Core State Standards, which most other states are now implementing. Eleanor Saslaw, who was then the president of the state school board, said at the time that the common core—a project spearheaded by the National Governors Association and the Council of Chief State School Officers—would be an "imposition" on the state.

The federal government has encouraged states to adopt the standards.

Critics of the OEI say the new agency demonstrates that the state itself is willing to exert improper authority over communities, even though state officials often decry federal and other outside influence on local prerogatives.

"Somewhere this message isn't consistent," said Meg Gruber, the president of the Virginia Education Association, a National Education Association affiliate with more than 50,000 members. "Do we want local control, or don't we want it?"

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Others, however, believe such arguments amount to excuses to avoid taking responsibility for bad schools. School boards often make a false argument about their importance to democracy and invariably clamor for more money and personnel, said Jeanne Allen, the president of the Center for Education Reform, a Washington-based group that advocates school choice and assessment-based accountability.

"Even our better public schools are still way below where they should be," she said.

New Hands on the Wheel

Since the OEI is a part of the state bureaucracy, Ms. Allen said she was skeptical that it would truly provide the kinds of diverse educational options parents want.

But the OEI will be "most successful when it has zero schools," argued Mr. Siddiqi, the deputy education secretary. He added that despite the fears of school boards about state assessment results, "this is not a referendum on all public education; ... this is a referendum on a handful of schools."

Ultimately, Ms. Allen said, the OEI's fate may depend on whether Mr. Cuccinelli or Mr. McAuliffe, a former chairman of the Democratic National Committee, wins the governor's race.

Vol. 33, Issue 03, Pages 24,26-27

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