Bacon's Rebellion

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Is Virginia’s Lab School Law Constitutional?

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sherlockj
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by James C. SherlockThe Governor and General Assembly may wish to look at Virginia’s new laboratory schools law in light of the Supreme Court’s June 21, 2022 Carson v. Makin (Carson) decision. 

Held: Maine’s ‘nonsectarian’ requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.

The facts of Carson, in which Maine spent state money to fund students to attend private schools but not religious ones, seem to align generally with the facts of the establishment of laboratory schools under Virginia law.Code of Virginia § 22.1-349.1. Definitions; objectives.

“College partnership laboratory school” means a public, nonsectarian, nonreligious school in the Commonwealth established by a public institution of higher education or private institution of higher education that operates a teacher education program approved by the Board. (Emphasis added)

That definition may be found to make the same constitutional error that the Supreme Court found in the Maine law on tuition assistance. 

As in the court’s findings in Carson, Code of Virginia § 22.1-349.1. may reasonably be found “to identify and exclude otherwise eligible schools on the basis of their religious exercise.” 

Chief Justice Roberts wrote for the Carson majority that: 

‘The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.

If § 22.1-349.1. is revised to exclude private institutions from participating, that would surely cure any potential legal issue. 

Alternately, the federal court system may find that as long as the term “public” school is used, private institutions can found and run them as long as they are non-sectarian, non-religious, much like public charters.

Or maybe not.

Is Liberty University, which operates by far the largest teacher education program in Virginia, to be excluded?

If Liberty is to participate, how will it be able run a school immune from lawsuits contending that the lab school is sectarian, no matter what efforts that university takes to ensure it is not?

For example, is the teaching of morals deemed sectarian?

I hope lawyers, a profession of which I am not a member, will comment on the questions raised.

In any event, Carson represents an interesting turn of events for Virginia law.

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43 responses to “Is Virginia’s Lab School Law Constitutional?”

  1. Eric the half a troll Avatar
    Eric the half a troll

    Public money should not be funding private schools – religious or not. Pretty simple solution.

    1. James C. Sherlock Avatar
      James C. Sherlock

      That is one of the legal alternatives that I offered to current law.

      1. Eric the half a troll Avatar
        Eric the half a troll

        Yes, I saw that. Seems to be the logical way to go…

        1. Nancy Naive Avatar
          Nancy Naive

          As the old Western Airlines commercial used to say, “It’s the only way to fly!”

          https://m.youtube.com/watch?v=RfmRKHtzfFs

      2. Eric the half a troll Avatar
        Eric the half a troll

        Yes, I saw that. Seems to be the logical way to go…

      3. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        Private nonsectarian organizations are likely to be the ones that get hurt by this Supreme Court opinion. Rather than have to fund organizations with religious ties, governments may decide to stop funding of all private organizations.

    2. f/k/a_tmtfairfax Avatar
      f/k/a_tmtfairfax

      That would work. But then we are stuck with public schools that have less and motivation to be responsive to parents and the public.

    3. Kathleen Smith Avatar
      Kathleen Smith

      Talk to Supreme Court. They appear to be making law lately.

      1. LarrytheG Avatar
        LarrytheG

        yup. The actual separation of Church and State is apparently not in the Constitution per se – so when that happens, it’s not clear if SCOTUS has a standard approach to such things.

        1. James C. Sherlock Avatar
          James C. Sherlock

          The Court has simply said that separation does not permit hostility.

  2. James McCarthy Avatar
    James McCarthy

    Maine officials are in the process of ensuring that any religious or private institutions eligible for funding are clearly in accord with non-discriminatory laws and policies with respect to admissions and staffing. Doctrinal ideology may disqualify many; and be the next legal battle. Justice Thomas is waiting.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      And Justice Alito.

  3. Kathleen Smith Avatar
    Kathleen Smith

    Most importantly, the local school board should not govern the school and the funding should follow the student. It

  4. Kathleen Smith Avatar
    Kathleen Smith

    Also, the state board is to come up with policies for these lab schools. That is in the appropriation act. But, a dem board is not likely to make it easy or doable. Passive aggressive at best.

    1. James C. Sherlock Avatar
      James C. Sherlock

      Agreed.

      The Board of Education will have to define whether the lab schools, defined as experiments in education, will have their pedagogy and curriculum restricted to state “model policies” and be examined for hints of instruction in morality.

      I will try to follow that.

    2. James C. Sherlock Avatar
      James C. Sherlock

      Agreed.

      The Board of Education will have to define whether the lab schools, defined as experiments in education, will have their pedagogy and curriculum restricted to state “model policies” and be examined for hints of instruction in morality.

      I will try to follow that.

    3. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      The Board of Education consists of nine members. The General Assembly refused to confirm three appointments made by Governor Northam. Of the remaining six members, the terms of two will expire on June 30. That gives Governor Youngkin five appointments to make, a majority. The terms of three other members expire next year. So, whatever policies or procedures are adopted by the Board of Eduction, on this or any other matter, will be the product of a Youngkin board.

  5. James McCarthy Avatar
    James McCarthy

    Assumedly, the state funded tuition would flow to students enrolled in the lab school institutions not the sponsoring higher education ones. Both would be required by collateral statutes to be non-discriminatory with respect to admissions and staff personnel policies.

  6. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    I think it would be possible for Liberty University to run a nonsectarian lab school. However, regardless of the Carson decision, Liberty probably would not be able to meet the requirements for a lab school under Virginia law.

    As I pointed out in my earlier article, Virginia law (Sec. 22.1-349.3) provides:

    “A college partnership laboratory school is subject to all federal and state laws and regulations and constitutional provisions prohibiting discrimination on the basis of disability, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, ancestry, or need for special education services.” (Emphasis added.)

    Virginia law is very specific about nondiscrimination. Sec. 2.2-3900 stipulates:

    “It is the policy of the Commonwealth to:

    1.
    Safeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, sexual orientation, gender identity, military status, or disability in places of public accommodation, including educational institutions” (emphasis added)

    If Liberty University pledges not to refuse admission or employment of students and teachers due to their LGBTQ+ status, then it would be eligible to establish a lab school.

    By the way, the state of Maine has invoked a similar provision in its law regarding the use of vouchers by private schools and the two schools involved in the Carson case have said they would not take the state money.

    1. James C. Sherlock Avatar
      James C. Sherlock

      You wrote: “If Liberty University pledges not to refuse admission or employment of students and teachers due to their LGBTQ+ status, then it would be eligible to establish a lab school”.

      Do you think that would be the only test for Liberty’s lab school, or would the pedagogy and curriculum also be examined for hints of religious content?

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        Of course it would, but, with the Supreme Court, whether it contained religious content would not matter.

        1. LarrytheG Avatar
          LarrytheG

          I was under the impression that these schools would have to meet the same SOL curriculum requirements.

          1. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            They are subject to the SOQ standards, which includes SOL requirements, but there is nothing that would prevent a lab school from including something in its curriculum that is not covered by the SOLs.

    2. Stephen Haner Avatar
      Stephen Haner

      Recalls a conversation (more than one, really) I had in person with the late Dr. Falwell Sr. in the early days of Liberty, while still with the newspaper. How much government interference would he begin to tolerate to get the king’s gold? He said none. I predicted more than he expected. I predicted it would move more secular, more U. Notre Dame and less Bob Jones U.

      It was almost 40 years ago…

      As to the original premise of the post, the law as drafted reflected the law that then existed. Amending it come January 23 to deal with the new ruling if needed will be easy. Bills come in all the time to adjust sections to reflect new court rulings.

      No public funding for private schools? Then give the parents a tax break to reflect the fact they are not imposing the cost of educating their children on the taxpayers. Won’t do that, will you…

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        The purpose of the TAG program is to give parents of Virginia students a break to reflect “the fact they are not imposing the cost of educating their children on the taxpayers.” In the just-adopted budget, the amount is $4,500 the first year of the biennium and $5,000 the second year. That’s equivalent to a pretty good tax break.

      2. LarrytheG Avatar
        LarrytheG

        so that would mean the folks who don’t do that would have to pay higher taxes to fund those tax breaks?

        1. Dick Hall-Sizemore Avatar
          Dick Hall-Sizemore

          That is $90.8 million in the first year and $100,3 million in the second year that is paid out of the general fund

  7. Eric the half a troll Avatar
    Eric the half a troll

    Related: Looks like the Thomas Court is set to green light coaches organizing and leading prayer groups at football games. I wonder how the Religious Right will feel when a teacher encourages and leads prayers to Allah in the classroom…??

    1. LarrytheG Avatar
      LarrytheG

      For some of these folks, they’re counting on the “Christians” outnumbering the heathens….. those who
      are not of the majority religion will be encourage to find other opportunities….

    2. LarrytheG Avatar
      LarrytheG

      It’s possible that, over time, publicly-funded religious schools in various flavors would be created. So, there will be predominately Christian, Catholic, Jewish, Muslim, schools, all hewing to SOL academic standards but each with additional “content” specific to their religion.

      1. Eric the half a troll Avatar
        Eric the half a troll

        Is it just a matter of time before they outlaw secular schools…??

        1. LarrytheG Avatar
          LarrytheG

          Oh no. They would be just another flavor to choose from… for the unaffiliated… and such… for those that did not want religion in the curriculum. Could be popular.

        2. WayneS Avatar
          WayneS

          It’s nice to see the far-right does not have a monopoly on “boogie-men” and paranoia…

          1. Eric the half a troll Avatar
            Eric the half a troll

            You are right… that probably won’t happen… probably…

    3. WayneS Avatar
      WayneS

      As long as student/player participation in the prayer is voluntary it won’t bother me at all.

      1. Matt Adams Avatar
        Matt Adams

        I don’t understand how this ruling is so controversial. He didn’t require anyone join him, nor did he punish anyone who didn’t.

        Pray to which ever deity you’d like, it has no impact on myself.

      2. Eric the half a troll Avatar
        Eric the half a troll

        Is participation in daily mass voluntary in Catholic schools…? Does “voluntary” count…?

        1. WayneS Avatar
          WayneS

          Nice straw man. Catholic schools are not public schools.

          1. Eric the half a troll Avatar
            Eric the half a troll

            No strawman. They are private schools and are therefore (per the cited rulings) able to access public school funding even if they compel Christian prayer.

          2. WayneS Avatar
            WayneS

            Please post the portion of the ruling where the ability to “compel Christian prayer” resides.

    4. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      I am waiting for a Islamic school to claim state funds that are available to private schools. That is when it will hit the fan. There are several in Virginia. https://www.privateschoolreview.com/virginia/islamic-religious-affiliation

  8. Eric the half a troll Avatar
    Eric the half a troll

    Related: Looks like the Thomas Court is set to green light coaches organizing and leading prayer groups at football games. I wonder how the Religious Right will feel when a teacher encourages and leads prayers to Allah in the classroom…??

  9. WayneS Avatar
    WayneS

    I’m not sure how the SCOTUS decision may affect it, but I think this is why the GA currently does not consider funding sectarian enterprises, including schools:

    from the Virginia Constitution:

    Section 10. State appropriations prohibited to schools or institutions of learning not owned or exclusively
    controlled by the State or some subdivision thereof; exceptions to rule.

    No appropriation of public funds shall be made to any school or institution of learning not owned or exclusively controlled by the State or some political subdivision thereof; provided, first, that the General Assembly may, and the governing bodies of the several counties, cities and towns may, subject to such limitations as may be imposed by the General Assembly, appropriate funds for educational purposes which may be expended in furtherance of elementary, secondary, collegiate or graduate education of Virginia students in public and nonsectarian private schools and institutions of learning, in addition to those owned or exclusively controlled by the State or any such county, city or town; second, that the General Assembly may appropriate funds to an agency, or to a school or institution of learning owned or controlled by an agency, created and established by two or more States under a joint agreement to which this State is a party for the purpose of providing educational facilities for the citizens of the several States joining in such agreement; third, that counties, cities, towns, and districts may make appropriations to nonsectarian schools of manual, industrial, or technical training, and also to any school or institution of learning owned or exclusively controlled by such county, city, town, or school district.

    Section 16. Appropriations to religious or charitable bodies.

    The General Assembly shall not make any appropriation of public funds, personal property, or real estate to any church or sectarian society, or any association or institution of any kind whatever which is entirely or partly, directly or indirectly, controlled by any church or sectarian society. Nor shall the General Assembly make any like appropriation to any charitable institution which is not owned or controlled by the Commonwealth; the General Assembly may, however, make appropriations to nonsectarian institutions for the reform of youthful criminals and may also authorize counties, cities, or towns to make such appropriations to any charitable institution or association.

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