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School takeover unit ruled unconstitutional
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School takeover unit ruled unconstitutional

Va. judge cites legislative overreach to aid student outcomes; appeal unclear

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A Norfolk Circuit Court judge has found Virginia’s embattled school takeover division to be unconstitutional.

In a ruling issued Tuesday, Judge Charles E. Poston said that as the Virginia Constitution vests the authority to establish school divisions in the Board of Education — and not the General Assembly — the Opportunity Educational Institution 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.”

The decision could be appealed, but Gov. Terry McAuliffe said Tuesday only that he and his team are evaluating the ruling “and will make a decision about next steps soon.”

Regardless of the ruling, he said, his administration is “committed to working in a collaborative way with local school divisions and the Board of Education to improve outcomes in all communities, and particularly in our struggling schools. We absolutely have to do better by the children in these schools.”

OEI board member Julia Ciarlo Hammond said the news was “very disappointing.” She said she would like to see the decision appealed and go to the Supreme Court “and have final arbiter on the issue.”

The Virginia School Boards Association and the Norfolk School Board last year filed the lawsuit attempting to invalidate the legislation. They argue that it violates parts of the Virginia Constitution 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.

“This ruling is an important affirmation of the Virginia Constitution’s intent that localities hold the responsibility for their public schools,” Gina Patterson, the VSBA’s executive director, said in a statement. “With that being said, there is still much work to be done to ensure that all of our schools are successful.”

The VSBA said that since the lawsuit’s filing, more than 100 school boards and municipal governing boards passed resolutions in support.

“We are pleased with the ruling,” Norfolk School Board Chairman Kirk Houston said in a statement. “We value our strong partnership with Virginia elected and appointed leaders; however, state takeover of schools was not going to be a magic formula for addressing challenges with student achievement, particularly in high-poverty schools.”

Six schools were facing takeover by the OEI for the upcoming school year: three in Norfolk, two in Petersburg and one in Alexandria.

Then-Gov. Bob McDonnell championed the OEI as a statewide vehicle to rehabilitate academically failing schools. It was created to take control of schools that have not met basic academic benchmarks for at least four years in a row. It also has the authority to take over schools that have been accredited with warning for at least three consecutive years.

But it has faced obstacles since its infancy.

McDonnell appointed outside counsel to defend the law when then-Attorney General Ken Cuccinelli declined to do so after his analysis found that it was unconstitutional. McAuliffe’s office switched special counsel not long after he took office and hired Robert A. Dybing at Thompson McMullan.

Its financing is also uncertain and could end up with level funding, at best, in the next two-year budget.

Despite the court challenge, OEI’s board of state lawmakers and other McDonnell appointees have forged ahead, meeting to review its work on compiling information from the schools slated for takeover, among other things.

Sen. Ryan T. McDougle, R-Hanover, a member of the board, said the panel meets next week and reiterated that the OEI was created to help students in schools that have failed to meet basic academic benchmarks for years.

“We need to make sure that we are doing everything possible to ensure that they are getting a quality education,” he said.

omeola@timesdispatch.com (804) 649-6812 Twitter: @omeola

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