By James C. Sherlock
Over the last four years I always found it necessary to monitor the workings and products of both the Virginia Board of Education (BOE) appointed by two Democratic Governors and Governor Northam’s Virginia Department of Education (VDOE).
The amount of radical and objectively dangerous policy that came out of that system was unconscionable.
I just found another one that escaped my notice at the time.
The BOE in 2021 published model guidance still in force that pushes school boards to establish policies that actively discourage school principals from either reporting in-school gang-related assaults to law enforcement. Richmond Public Schools, and I don’t know how many other school divisions, have done just that.
The issues:
- Virginia criminal law makes gang-related assaults in schools aggravated felonies; and
- gang activity in schools is objectively dangerous and disruptive.
Unbelievably, the Northam Department of Criminal Justice Services, responsible for school safety, participated in the drafting of those model policies.
At least that Department should have known that the BOE policy is way out of bounds from both criminal justice and school safety standpoints and blown the whistle.
The BOE needs to change the policy.
The Commonwealth Inspector General and the Attorney General need to investigate how that happened, assign responsibility, levy accountability and ensure such a thing never happens again.
Model Guidance. The BOE 2021 Model Guidance for Positive, Preventive Code of Student Conduct Policy and Alternatives to Suspension (Model Guidance) is offered as “a blueprint for school boards in revising local policies, systems, and practices related to student conduct and school climate”.
It defines and divides student conduct in categories of behaviors by increasing seriousness and suggests disciplinary sanctions in various levels of increasing severity.
Today’s example from Model Guidance is “Category E: Behaviors that Endanger Self or Others (BESO)”. Category E behaviors include:
“Gang-Related Behavior: Engaging in threatening or dangerous behavior that is gang-related as defined in §18.2-46.1. (Level 1 to 4 (sanctions))”
The most severe sanction by schools to gang-related assaults is Level 4. Levels 1, 2 and 3 are also listed as options.
- Level 4 disciplinary sanctions available include:
“Referral to law enforcement for behaviors that may constitute a felony or that are required by local policy.” (emphasis added)
- Levels 1, 2, and 3 sanctions do not offer referral to law enforcement as an option.
The principal gets to decide whether the identical crime requires Level 4 sanctions or something less. It is in his best interest to go with something less. More on that later.
The question is why state policy guidance that precisely describes a Virginia aggravated felony – gang-related assault in schools – would allow for levels of sanctions that do not include mandatory reporting of the crime to law enforcement.
The answer is those who drafted and approved Model Guidance worked with the intent and effect of ensuring that most of those aggravated felonies are not reported to law enforcement.
Let’s look.
Virginia criminal law. Threatening or dangerous behavior against another person is simple assault, a misdemeanor in Virginia.
When the assault is gang-related it both constitutes a predicate criminal act of violence under §18.2-46.1 and violates several of the long list of specific additional laws cited in that law that make simple assault a felony in this state.
When a gang-related assault occurs in schools, mandatory minimum sentences are triggered. But that will not happen if law enforcement is not informed and the courts given an opportunity to function.
The answer is that the Board of Education did not want this particular felony to be handled in the criminal justice system. The Model Guidance, where implemented, will virtually ensure it is not.
In a bracing bit of information, Governor Northam’s Department of Criminal Justice Services was represented in Model Guidance development.
Intent. Model Guidance was developed and is positioned as an initiative to be handled with progressive solutions, not law enforcement.
If you doubt it, see the contemporaneous presentation. (I strongly recommend just looking at the slides. If you listen to the narrator, who reads the slides, you will never finish.) If you make it through the presentation, you will know that those responsible are proud of their work.
The pressure inherent in the menu of sanctions for this aggravated felony clearly is meant to influence a lesser sanction that does not include reporting to law enforcement.
Outcomes. The gangs know the policy. The gangs know that principals have the option not to report them to the police. The principals know they know. Reporting and thus enforcement of Virginia gang-related criminal laws in the schools under Model Policies depend on the principals overcoming fears of both personal and family physical risk and personal career risks.
Of course there is no indication in Model Guidance of any concern as to whether gang assaults in the schools may not be the best “school climate” for the teachers and the kids who are not in gangs.
Or that victims of those felonies are pressured into sitting across the floor from those who assaulted them in “restorative justice circles” . They then get to go home to the same neighborhoods as the criminals when the school day is over.
That should work.
Richmond, of course. The Board of Richmond Public Schools, eager for another chance to prove their special combination of wokeness and incompetence, jumped on this opportunity.
Big Picture. Right and wrong are subjective.
When free people join together to form a government, that right and wrong must be agreed upon and codified in the case of public safety, which is the primary reason for forming governments in the first place.
In the American and Virginia governments, we have three levels of agreement – a constitution, laws and policies.
Laws are governed by a constitution, policies by laws. Each element must be fully constrained by its senior counterpart. That is how it must work if it is to work at all.
Changing the constitutions, the basic agreements, is appropriately very difficult to do. Laws require agreement across the executive and legislative branches. Policies require agreement only among executive branch appointees.
Virginia has very specific and tough laws against gang activity in general.
Yet the Virginia Board of Education very specifically guided school boards to write policies that encourage schools to abstain from reporting gang-related assaults in the schools to law enforcement.
That cannot be allowed to stand.
It purposely frustrates enforcement of Virginia criminal laws and endangers students, teachers and staff every day.
Suggested action items:
- The Virginia Board of Education change the Model Guidance to insist on reporting of gang-related assaults in schools to law enforcement.
- The Youngkin Department of Criminal Justice Services, with the lead on school safety, take a public position on this matter.
- The Department of Education find out how many school divisions in addition to Richmond have published sanctions on gang-related assaults in schools that offer options to the principals that will not result in reporting of violations of those laws.
- School divisions which have adopted the current Model Guidance on gang-related assaults in schools change their policies without waiting for updated guidance. School boards have the constitutional responsibility and authority in Virginia to supervise the schools. I suggest that authority does not extend to keeping aggravated felonies committed in schools from being reported to law enforcement. School boards may not wish to test that in court.
- The Inspector General and the Attorney General:
-
- investigate how current state Model Guidelines were drafted and approved and make the appropriate administrative findings and recommendations (Inspector General) and take the appropriate legal actions (Attorney General) depending upon the evidence; and
- determine whether other state laws in addition to those under discussion in this article were ignored or perhaps broken in the process.
Updated June 14 at 17:15
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