GOLDMAN: Richmond School Board flunks Education 101?

Posted at 12:33 PM, Dec 10, 2013
and last updated 2013-12-10 12:33:34-05

RICHMOND, Va. – Is the Law, according to Richmond School Board Jeff Bourne, actually the Law?

According to Richmond School Board chief Jeff Bourne, who has a specially created legal job with a city agency, state law is forcing the “Richmond 9″ to break solemn promise to the people. But is he right?

For months now, the Richmond School Board has been specifically promising public meetings to allow for parents and others to meet the finalists for the job of school superintendent.

This guarantees direct community input prior to the Board making this critical choice.

It is also what the Board’s experts, paid by your money, advised them to do IN ORDER TO MAKE THE BEST POSSIBLE DECISION.

But Mr. Bourne says the law prevents the School Board from doing the right thing. Is that true?

Turns out, the law is not clear on the deadline for the Richmond School Board to pick a permanent School Division chief. It has an ambiguity as written. Moreover, there is no constitutional or legal impediment preventing the State Board of Education from giving them more time, or for the General Assembly to pass a law in a few weeks retroactively giving them more time, should that be their respective decisions.

Indeed, there is no reason to believe either the State Board or the GA would refuse such a reasonable request. Quite the opposite: They are likely to want to help if they can.

The State Constitution, in Article VIII, Section 5 says that in “the event a division school board fails to select a division superintendent within the time prescribed by law, the Board of Education shall appoint him.”

What is the time prescribed by law? Virginia Code Section 22.1-60 says the “division superintendent shall be appointed by the school board within 180 days after a vacancy occurs.”

This then raises the following legal question: When does “a vacancy occur?”

Right now, the Richmond School system is run by an acting division superintendent as permitted by Board of Education administrative regulation 8VAC20-390-30. This regulation says the “acting superintendent shall… serve until the newly appointed superintendent assumes office.”

The Richmond School Board interprets these legal and regulatory provisions as creating a vacancy whenever there is no individual with the title of permanent school superintendent in their employ.

Thus, while they appointed an acting chief, the clock continues to click on the 180 “vacancy” rule. Apparently they fear that under 22.-1-61, a failure to pick a new permanent chief by their self-imposed December deadline will then give the appointment to the State Board of Education as permitted by the state constitution.


The Constitution intends for the local school board to pick the local school system superintendent. But it tries to make sure the local board acts in a timely manner. This makes perfect administrative and constitutional sense.

But since our system favors local control, as opposed to state control, of local education, the law has to be interpreted to favor the local school board whenever there is a reasonable ambiguity in the statute and regulation provisions at issue.

The Constitution doesn’t discuss permanent vacancy; it leaves such distinctions to the General Assembly or the State Board by virtue of legislative delegation.

Moreover, the Constitution doesn’t restrict the State Board of Education from granting waivers or temporary extensions to any applicable 180 rule. Since the power, if appropriate, rests with the State Board, they can then decide how best to exercise it.

Current state law is not clear as to the meaning of “vacancy” in this instance.

It is subject to reasonable differences in interpretation. Moreover, the Richmond School Board has not acted in a manner calculated to do an end run around any law or regulation.

FINALLY: The Board’s own experts, hired with city money, have said BREAKING THIS PROMISE is not a positive, that rather KEEPING THE PROMISE figures to get Richmond the best possible choice.

The pragmatic and legal solution: If keeping the promise requires a few extra days or even weeks, then there would be no reasonable explanation for the State Board of Education to deny a formal request for such extra time.

Moreover, if the State Board did so refuse, they would only be “buying” a law suit or smack down from the General Assembly and the new Governor-elect, who won a lot of votes in Richmond. This is not in the SBOE’s interest.

Instead of looking for reasons to justify breaking the promise, Mr. Bourne should use his legal skills to protect the interests of the people of Richmond and the promise made to them. There is no shame in asking for an extension of time. No one is suggesting the Richmond School Board has not been diligent in its search for a new school chief.

So why, at the last minute, risk angering the public by making it appear the alleged “reformers” who got elected promising openness last year have reverted back to a “my way or the highway” authoritarianism once elected?

Between Mr. Bourne, the school board attorney and the city attorney’s office – we are paying them all hundreds of thousands of city dollars in one patronage position or another – surely they can make a persuasive case to the State Board that either the “vacancy” doesn’t clearly exist or that granting more time is consistent with the constitutional intent.

Or: Joe and I will do it for free.

Paul Goldman is in no way affiliated with WTVR. His comments are his own, and do not reflect the views of WTVR or any related entity. Neither WTVR nor any of its employees or agents participated in any way with the preparation of Mr. Goldman’s comments.