Governor McDonnell’s Opportunity Education Institution Ruled Unconstitutional

July 30, 2014

Pardon Our Dust

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On June 10, 2014, a Norfolk Circuit Court granted summary judgment in favor of the School Board of the City of Norfolk and the Virginia School Boards Association in a suit against Governor Bob McDonnell’s Opportunity Educational Institution. The Court found the Opportunity Educational Institution (“OEI”) to be unconstitutional. On July 22, 2014, Governor Terry McAuliffe announced that the Administration will not appeal the Circuit Court’s decision to overturn the OEI. With funding removed during the 2014 General Assembly budget session for OEI coupled with this ruling and Governor McAuliffe’s decision not to appeal, the fate of Governor McDonnell’s Opportunity Educational Institution appears to now be sealed.
As part of Governor McDonnell’s All Student Initiative during the 2013 General Assembly session, the OEI was created through legislation. Governor McDonnell and those supporting the bill purported that a child should receive a quality education no matter where he or she may live or what his or her background may be, and that the education community was too concerned with local dollars coming to their districts and not worried about the success of children in chronically failing schools. Many of the Delegates representing localities with a failing school voted in favor of the OEI.
Under the law, any public school denied state accreditation or accredited with warning for three consecutive years could be taken over by the statewide school district entitled the Opportunity Educational Institution. Many components of the legislation warranted concern, including removing authority from local school divisions and capturing funding from localities to send to the state-run school division. At the time of the OEI’s enactment in 2013, several groups joined in opposing the legislation, including the Virginia Education Association, Virginia Association of School Superintendents, Virginia Association of Elementary School Principals, Virginia Association of Secondary School Principals, Virginia School Boards Association, Virginia PTA, Virginia Municipal League, Virginia Association of Counties and Virginia First Cities.
At the time of passage in 2013, opponents warned that the OEI was unconstitutional as these failing schools were physically located within local school divisions yet the legislation sought to create a statewide school division with control over these schools.
In August 2013, the Virginia School Boards Association and the City of Norfolk School Board (collectively, the “Plaintiffs”) filed suit in the Circuit Court for the City of Norfolk (the “Court”) petitioning the Court to invalidate the legislation enacted by the General Assembly, which created the Opportunity Educational Institution. While defense of this suit fell to the Attorney General’s office, then Attorney General Ken Cuccinelli stated that while he supported efforts to turn failing schools around, he believed the law to be unconstitutional and thus would not defend it in the suit.
The Virginia School Boards Association and the City of Norfolk School Board based their challenge on two primary grounds:
1.      The legislation violates Article VIII, Section 7, of the Constitution of Virginia, which provides that “the supervision of schools in each school division shall be vested in a school board.”
2.      The legislation violates Article VIII, Section 5, of the Constitution of Virginia, which provides that the State Board of Education shall create school divisions.
The Court determined the issue at hand to be of first impression – may the General Assembly establish a statewide school division to which selected local public schools are assigned and which is not supervised by a school board? In deciding the issue, the Court reviewed both arguments asserted by the Plaintiffs.
The Court granted the Plaintiffs’ Motion for Summary Judgment and held:
1.      Virginia Code Section 22.1-25(A)(4) is not constitutional because it purports to establish a statewide school division and because it purports to create a school division that is not supervised by a school board while Article VIII, Section 5 of the Constitution of Virginia, vests the authority to establish school divisions in the Board of Education and not the General Assembly.
2.      Insofar as Chapter 4.1 of Title 22.1 of the Code of Virginia violates Article VIII, Section 7 of the Constitution of Virginia to the extent that it purports to divest local school boards of authority to supervise public schools within their respective school divisions.
3.      Virginia Code Section 22.1-27.6 violates Article VIII, Section 7 of the Constitution of Virginia because it purports to require local school boards to relinquish control of school property to OEI and because it purports to prohibit school boards from selling real property without OEI’s permission it.
Roughly a month after the release of the Court’s opinion, Governor McAuliffe decided that his Administration will not seek to appeal the Norfolk Circuit Court’s decision. 
To read the full opinion, please click here
If you have any questions or for more information, please contact Ashley Allen.