Virginia School Boards Ass’n and Norfolk Public Schools file suit to overturn legislation authorizing state takeover of failing schools

According to the Richmond Times-Dispatch,  the Norfolk Public Schools (NPS) board has voted to join the Virginia School Boards Association (VSBA) in a suit against the state seeking to overturn the legislation creating the Opportunity Educational Institution (OEI).  The suit will be filed in the City of Norfolk Circuit Court.

Under the legislation, the Opportunity Educational Institution, run by a board of state lawmakers and gubernatorial appointees, will take over schools that have been denied accreditation.  It can also take over schools in their third consecutive year of warning.  To lose accreditation in Virginia, as at least four schools currently have, schools must fail to meet basic academic benchmarks at least four years in a row.  School accreditation ratings are expected next month from the Virginia Department of Education.  Until then, it’s unclear how many schools could be seized.

OEI’s board is free to operate the school in whatever manner it chooses, including turning it into a charter school or college laboratory school.  It could return the schools to local control once they reach full accreditation, but it’s not required.

The VSBA was among the groups opposing the school takeover legislation promoted by Gov. Bob McDonnell, and the association argued that it was unconstitutional.  Per pupil funding would follow the student, meaning both the state and local shares of the funding for each student would go to the statewide board.  OEI would also be able to use any school facility or property that’s part of the school or used by its students before it’s taken over.

NPS and VSBA contend that the construct is unconstitutional and that the legislation violates parts of the Constitution of Virginia providing that “the supervision of schools in each school division shall be vested in a school board” and that the State Board of Education shall create school divisions.

“Creation of the Opportunity Educational Institution and the OEI Board clearly violate the Constitution of Virginia,” Kirk Houston, chairman of the Norfolk School Board, said.  “As Governor McDonnell referenced last week in a visit to Northern Virginia, local school boards and local control are vital to the success of local schools.”

J. Tucker Martin, Gov. McDonnell’s spokesman, said, “The Governor believes every child deserves the opportunity to attend a great school and have a real chance at success.  If it takes now beating a lawsuit to provide them with that basic right, so be it.”

Source: Richmond Times-Dispatch, 8/22/13, By Olympia Meola

[Editor's Note: Legal Clips thanks VSBA for bringing this issue to Legal Clips' attention and sharing it with our readers.  In a joint press release from VSBA and NPS announcing plans to file the suit, VSBA Executive Director Barbara Coyle said, "The Virginia School Boards Association and Norfolk City School Board request the court to declare the OEI legislation unconstitutional and to enjoin the OEI Board from taking any action to implement the legislation.”

The release also states that the suit will challenge the legislation primarily on two 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;” and (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.]

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