by James C. Sherlock
The Virginia Board of Education (VBOE) is by far the most powerful and consequential public board in Virginia. It is the only one whose Powers and Duties are defined in the Virginia Constitution.
It was a mistake not to make the members of the Board with such vast and unconstrained powers constitutional officers who stand for election.
We are now seeing what the Board, once appointed and confirmed, can do. It has transformed Virginia’s educational system into a Marxist indoctrination system. Board members know what they are doing is not only radically transformational, but intensely political and fiercely opposed.
Their work is not only dogmatic, but sloppy. Their use of the English language has been demonstrated here to be severely challenged. Not exactly a trait most look for in a Board of Education.
And they do not care. There is no constitutional reason they should.
The current Board has demonstrated like no other before it that it needs to face the electorate. Virginia will need a constitutional amendment to make the VBOE, who are together more constitutionally powerful than any elected official but the governor, constitutional officials elected by the people.
It is time.
Article VIII of the Virginia Constitution Section 4. Board of Education provides:
“The general supervision of the public school system shall be vested in a Board of Education of nine members, to be appointed by the Governor, subject to confirmation by the General Assembly. Each appointment shall be for four years, except that those to fill vacancies shall be for the unexpired terms. Terms shall be staggered, so that no more than three regular appointments shall be made in the same year.”
So, once appointed and confirmed, there is no constitutional provision for General Assembly recall of a board member or members.
A new Governor cannot immediately replace the Board. Of the current group, the terms of Jamelle Wilson and Anne Holton — McAuliffe appointees — expire in June. So the lame duck Governor will appoint two of the nine board members for new four year terms.
If Republicans take control of either body of the General Assembly in the fall, I expect a special session of the General Assembly to be called to confirm the Northam appointments before the new GA is seated.
If a Republican Governor is elected, he or she will not have a Board vacancy to fill (two of them) until June of 2022, and won’t have selected a majority of appointees until June of 2023.
The Code of Virginia contains a provision for judicial review of decisions of local school boards:
“Any parent, custodian, or legal guardian of a pupil attending the public schools in a school division who is aggrieved by an action of the school board may, within thirty days after such action, petition the circuit court having jurisdiction in the school division to review the action of the school board.”
There is no such provision for judicial review of the decisions of the Board of Education.
Instead, any person aggrieved by an action of the board may appeal to the House or Senate Privileges and Elections Committee or to the Joint Commission on Administrative Rules. Except they are not in session. And would not take it up if they were.
We clearly need a constitutional amendment. The current Board has made it imperative. Board members should be deemed constitutional officers and stand for election every four years in alignment with the election of a new Governor.
The constitution should define the number of VBOE members as the number of Virginia’s congressional districts, currently eleven, and one member should be elected in each congressional district.
Those who might think to argue that this would politicize the Board simply have not paid attention to what has happened the past few years.
VBOE has proven far too powerful, unconstrained and radical to be allowed to continue without the consent of the governed.
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