McDonnell: School Takeover Law is Constitutional

Gov. Bob McDonnell said Tuesday that the state Supreme Court may have to decide whether the state can take over poorly performing schools, but he's confident a key part of his education reform package would be upheld.

State lawmakers passed a law earlier this year allowing a newly created state institution to take over any school that fails to meet state accreditation standards. Schools that receive accreditation warnings for three consecutive years can also be taken over by the Opportunity Educational Institution.

Two schools in Norfolk, one in Petersburg and one in Alexandria are currently eligible for state takeover, although none would occur until after this school year. Proponents of the legislation said some schools have been allowed to fail for too long, shortchanging students who are entitled to a quality education. Organizations representing Virginia teachers, school boards and administrators opposed the proposal from the start.

Last week, the Norfolk School Board voted to join the Virginia School Boards Association and sue the state over the law, contending that it violates the state's constitution.

"The School Board of the City of Norfolk fully appreciates the urgent need to improve student achievement across our city, and particularly in schools that have been most challenged by recent increases in state standards. State takeover of our schools is not the answer, and it is the School Board's contention that the Opportunity Educational Institution (OEI) violates the Constitution of Virginia,'' Kirk Houston, chairman of the Norfolk School Board said in a written statement following McDonnell's comments.

At issue in the upcoming legal fight is how the OEI was created. Norfolk and the School Boards Association argue that the Opportunity Educational Institution board isn't a school board, but rather a policy board in the executive branch of government. The state constitution requires the supervision of each school in a school division to be administered by a school board.

Norfolk and the association also contend that the OEI violates the state constitution because the State Board of Education didn't create the statewide OEI school division, which it contends is the only body with the authority to create school divisions. The OEI was created by the General Assembly.

Speaking to reporters in front of a failing middle school in Norfolk on Tuesday, McDonnell said he's disappointed in the Norfolk board's decision to sue the state rather than work with it to improve results. He also dismissed the constitutional arguments the school board association has made, saying other clauses in the constitution effectively trump the ones it is referencing.

"I know the Norfolk school system has maintained that our legislation is unconstitutional and I don't accept that for a minute. I think they're absolutely flat wrong,'' McDonnell said.

McDonnell contends that a section of the state constitution requiring the General Assembly ``to ensure that an educational program of high quality is established and continually maintained'' gives the state the right to seek alternatives.

"Eight out of ten years at an underperforming school, that's not keeping faith with our constitutional requirement. That's not a continually maintained high quality institution,'' he said.

McDonnell also cited a line in the state constitution saying the General Assembly may establish other educational institutions as justification for how the General Assembly can create the OEI, likening it to the state's creation of a school for the deaf and blind that he says hasn't been challenged in court before.

"We don't have a lot of tests of this,'' McDonnell said. "I don't disagree that this may be a novel matter or a new interpretation of conflicting constitutional provisions that the court, and ultimately maybe the Supreme Court of Virginia will have to resolve.''