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Youngkin’s executive orders raise constitutional questions. It’s unclear when they’ll be answered.

People seated at desks
Crixell Matthews
Students wear masks on the first day of school at Hopewell High School. (Photo: Crixell Matthews/VPM News)

Gov. Glenn Youngkin’s executive orders allowing parents to opt their kids out of mask-wearing in schools and seeking to prohibit Virginia teachers from discussing “inherently divisive concepts” in public school classrooms are raising constitutional questions. Some legal scholars are suggesting they could even be unconstitutional, though courts are just starting to weigh in on these questions.

That comes amid ongoing fights over the extent to which local school boards have autonomy from the state on a variety of issues including policies to protect transgender students. Given the intense debate, we wanted to step back and explain what the Virginia Constitution has to say, how this is interpreted by constitutional scholars today and the key legal questions being debated and discussed.

What does the constitution say about who controls public education policy?

The 1971 Virginia state constitution sets up a tiered management system for public schools. It vests the “supervision of the public school system” with the state Board of Education and the “supervision of schools in each school division” with local school boards.

Virginia’s constitution also states that “subject to the ultimate authority of the General Assembly,” the state Board of Education “shall have primary responsibility and authority for effectuating the educational policy set forth…and it shall have such other powers and duties as may be prescribed by law.”

Among powers vested in the state Board of Education: the authority to approve textbooks, instructional aids and materials for use in public school courses.

The only constitutional authority given to the governor regarding control of public education is the appointment of a superintendent of public instruction as well as members to the state Board of Education, who are nominated on a staggered basis. All of these appointments must be approved by the General Assembly. The constitution states that no more than three regular appointments can be made to the nine-member education board in any given year.

What do constitutional scholars interpret this to mean?

Dick Howard, who helped draft revisions for the 1971 constitution, told VPM that the constitution was written to ensure that when it comes to education policy, “the conversation begins with the Board of Education and the General Assembly.”

Howard says the staggered appointments for state Board of Education members were meant to ensure that “some time has to pass before a new governor can put his stamp on the board” and to “keep the schools from being buffeted about every time there is an election. I mean, it would be very sad if education became the play thing of political parties and candidates.”

In other words, Howard says, it was meant to give the state Board of Education more of a voice when it came to setting education policy.

“He [the governor] has veto power over legislation that affects education. He will have a voice obviously in the budget, proposing a budget and the final disposition of budgetary matters,” Howard said. “So he's clearly a part of that sort of discussion or dialogue, the conversation, but he can't summarily just simply step in and change things.”

Rich Schragger, a constitutional law professor at the University of Virginia, agrees – adding that the idea of the staggered state Board of Education appointments “was to try to insulate education policy in the commonwealth from the politics of particular administrations, particularly in the aftermath of massive resistance.” The 1971 constitution replaced one that mandated school segregation.

As for the General Assembly’s ability to approve laws that impact public education, University of South Carolina constitutional expert Derek Black says, “there are some areas in which the state board and the General Assembly have what you might call concurrent authorities or intersecting authorities… So it's really saying: the state board can set all the policies, but ultimately, the General Assembly could change the education policy.”

Howard says the legislature “generally does need to take into account the constitutional status of the Board of Education, which has been given the power by the constitution to provide for textbooks and educational instructional materials,” but adds that lawmakers can make other changes.

“If they [lawmakers] want to provide for certain kinds of curricula or courses then they can do that, and the Board of Education is subject to that,” Howard said.

What are the big legal questions being discussed today?

Because state lawmakers passed a measure last year requiring school boards to follow CDC guidelines “to the maximum extent practicable,” multiple school boards have mandated masks in schools.

CDC guidelines currently recommend universal masking for all students, staff and school visitors regardless of vaccination status. One of Youngkin’s executive orders – allowing parents to opt their kids out of masks – contradicts that state law.

“The question here is whether the governor can override the state law,” Schragger said. “It's not clear that the governor has independent authority to make rules for the schools outside of the state school board process.”

In other words, Schragger says, this is really a fight between the governor and the legislature - with school boards stuck in the middle.

Another question being debated and discussed: how much flexibility do local school boards have to set their own policies, especially when the state legislature has weighed in?

For example, Virginia lawmakers passed legislation in 2020 that required school districts to pass policies in line with state-endorsed model policies to protect transgender students. But despite the legislative mandate, local school boards have pushed back – many refuse to adopt policies fully in line with the Virginia Department of Education’s.

Jack Preis, law professor at the University of Richmond, says the constitution clearly establishes that school boards have to follow state laws regarding education policies like this.

“The legislature is allowed to tell schools, ‘listen, this is what you should be doing,’” Preis said.

The key legal question in this case, Preis says, is whether or not school boards are violating state law by choosing to adopt policies not explicitly in line with VDOE’s.

“What's going on is whether or not the failure to adopt the policy – the specific model policy –is justifiable under state law,” Preis said.

How are these questions playing out in courts?

This week, the Virginia Supreme Court decided not to consider a Chesapeake case, brought by parents, challenging Youngkin’s mask-related executive order. UVA’s Rich Schragger says it was a procedural dismissal.

“They didn’t consider the merits of the lawsuit,” Schragger said. “And then they drop a footnote that says we’re not making a ruling on the legality of the governor’s order.”

That means a temporary order from an Arlington judge still stands, allowing seven school boards, which jointly sued the state, to require masks in schools – at least until there’s a final decision in the case. In the order, the judge wrote that upending policies that have been in place throughout the school year would cause “irreparable harm.”

It’s unclear if – and when – the state supreme court will hear this case. Carl Tobias, law professor at the University of Richmond, says two soon-to-be vacant seats could explain the delay in an order being issued. Virginia lawmakers will elect the new members, which Tobias says is likely to happen during this year’s General Assembly session.

“That's a little bit in flux. And maybe they want to have a full complement of justices to decide it,” Tobias said. “Hopefully, the supreme court would act quickly if it were to receive an appeal. And that could happen rather expeditiously if the court wants to move quickly.”

Meanwhile, the legislation requiring school boards to follow CDC guidelines to the maximum extent possible expires in August. The state Senate also passed legislation this week that would allow parents to opt their kids out of mask mandates in public schools; a House bill is still making its way through the General Assembly.

And in Hanover County, a group of parents filed a lawsuit last December against the Hanover County School Board after the board refused to pass a policy fully in line with VDOE’s last fall. Last month, the district responded.

“The plaintiffs say, ‘you're supposed to adopt a policy that's consistent with the model policy,’” Preis said. “The Hanover County [school board] says we do have a policy, it says we don't discriminate on the basis of gender identity.”

Litigation in that case is still pending.

“Part of this case is whether or not students have a right not just to be treated equally, but have a right to a policy that explicitly guarantees them that right,” Preis said. “And so what the parents are trying to argue essentially is: we're not just entitled to having our kids treated equally. We're entitled to a policy that states what exactly equal treatment will amount to.”

Megan Pauly covers education and health care issues in the greater Richmond region.