Journal of Local Government Law

Published by the Local Government Section of the Virginia State Bar

Vol. XXIV, No. 2, Fall 2013

Article reprinted from full Journal issue with permission of the Local Government Section

Constitutional Roots that included a notable, down- Brooks v. Sch. Bd., 569 F. to-earth passage: Supp. 1534, 1539 (E.D. Va. and Shadow: 1983) (emphasis added). While This Court has previously The School Board’s his memorable words in that sought the guidance of the case focused on what he per- Manifest Power Under Fourth Circuit in the morass ceived as a confounding Eighth Article VIII, Section 7 in which decisions in this Amendment test, they provide a area have left the trial judg- Douglas L. Guynn reminder of how constitutional es to flounder . . . . Absent analysis—both under the U.S. Introduction some . . . dividing line be- Constitution and Virginia Con- ortch Warriner, a tween common law tort and stitution—can be challenging former Emporia City constitutional tort, we are for courts and counsel. Those D Attorney, eventually left to a two-step analysis words challenge us to consider, became a U.S. District Judge that does little to divide one as well, how Virginia’s Consti- for the Eastern District of tort from another. . . . Only tution has been “run” when it Virginia, serving on the feder- after a trial . . . can we de- comes to the authority of the al bench for more than 10 termine whether we had 1 Commonwealth’s school years. Known perhaps distinc- jurisdiction to try the case. boards. This kind of review tively for his direct and candid If we are not shocked we brings to the discussion some judicial approach, he had didn’t have jurisdiction. of the legal, strategic, and occasion to address various That is a heck of a way to tactical questions under Article constitutional issues that in- run a Constitution. volved Virginia’s public VIII, Section 7 and, in the schools. In one particular instance, Judge Warriner vent- ed about the practical difficul- TABLE OF CONTENTS ties in handling a constitution- Constitutional Roots and Shadow: The School Board’s al issue within the framework Manifest Power Under Article VIII, Section 7 ...... 1 established by the Fourth Chairman’s Message ...... 2 Circuit Court of Appeals. You An Interview with Mike Kaestner: have to admire the candor and The 2013 Virginia State Bar Local clarity in his published opinion Government Fellowship Recipient ...... 22 Ramifications of Shelby County v. Holder Doug Guynn is the City Attorney of for Practitioners in Virginia ...... 25 Staunton and heads the Virginia Notice to Members re Electronic Publication ...... 30 Education Law Group of Botkin- Rose in Harrisonburg. He may be Bibliography & Back Issues Notice ...... 30 reached at [email protected]. Board of Governors ...... 31

Journal OF Local Government Law

Chairman’s Message

As you may know, the Virginia State Bar is planning a different format for next year’s Annual Meeting in Virginia Beach. As a result of renovations underway at the Cavalier Hotel, which has hosted the Annual Meeting for decades, the VSB had to get creative and find new places and new ways to hold the Annual Meeting. The VSB’s Better Annual Meeting Com- mittee (evocatively known by its acronym as the “BAM Committee”) took on the challenge and it lived up to its name. The programs and events will be scheduled at several hotels along the boardwalk instead of concentrating them at one headquarters hotel. Instead of multiple CLE sessions running simultaneously, fewer but bigger and better sessions will be held. The BAM Committee developed a long list of timely and engaging subjects and the sections were asked to weigh in on what they thought would be of greatest interest to their members.

I’m happy to say that one of the programs that the Local Government Law Section advo- cated for was ultimately selected. Together with the Construction Law Section, the Local Government Law Section will co-sponsor a “Showcase CLE” on Private Property Rights/Public-Private Partnerships. The panel will address property rights, public-private part- nerships, tolls for tunnels and HOT lanes, and where the constitutional line is for private action or authority action, as opposed to legislative action by the state or local governments. The Supreme Court of Virginia’s October 31, 2013, decision in Elizabeth River Crossings Opco, LLC v. Meeks will be one focus of the discussion.

The BAM Committee also proposed scheduling lunches for sections that want to combine their annual business meetings with social time. Your Board of Governors responded favora- bly, so we will be conduct our business meeting over lunch next year. In short, there are ex- tra reasons for Local Government Law Section members to attend the Annual Meeting in 2014, so put it on your calendars. It will be on June 13 and 14, 2014.

Meanwhile, we present the Fall issue of the Journal of Local Government Law. This issue in- cludes a retrospective by Mike Kaestner, who was awarded the Section’s First Fellowship, an article by Staunton City Attorney Doug Guynn on the constitutional authority of school boards, and an article about the future impact of the U. S. Supreme Court’s decision in Shelby County v. Holder, by Stephen C. Piepgrass and Anne Hampton Andrews of Troutman Sanders.

Erin Ward Chairman

process, a greater appreciation especially fitting with the schools.2 A discussion of this for the historical contexts in approach of the 60th anniver- history and Virginia judicial which the Virginia Supreme sary of the U.S. Supreme precedent additionally invites Court has found itself dealing Court’s groundbreaking deci- reflection on the post-Brown with the consequences of other sion, Brown v. Bd. of Educ., role of courts and judges today institutions’ actions and the 347 U.S. 483 (1954) (often in the operation of our public ensuing conflict that occa- referred to as "Brown I"), on schools—operations that can sioned litigation. The timing is racial segregation in the public implicate a myriad of personnel

Page 2 Journal OF Local Government Law and other decisions leading to lawyers—and judges—unschooled vested in a school board.” See litigation.3 Advocates, includ- about the reach. Bradley v. Sch. Bd., 462 F.2d ing local government attor- 1058, 1067 (4th Cir. 1972). As neys, who underestimate the Development and history would demonstrate in grounding and reach of the Nature of Virginia yet unforeseen ways, the judi- Virginia Constitution’s Article School Boards cial interpretation of this lan- VIII, Section 7 do so at some In the late 1700s in Virginia, guage would become pivotal in considerable risk, especially Thomas Jefferson proposed his determining issues of legal given what is the long “shad- Bill for the More General control and decision-making ow of [Virginia Supreme Diffusion of Knowledge. He discretion in the century ahead. Court] . . . cases giving full believed “to diffuse In the constitutional amend- effect to that provision.” Rus- knowledge more generally ments ratified in 1928, Virginia sell Cnty. Sch. Bd. v. Ander- through the mass of the peo- also adopted what is the more son, 238 Va. 372, 384, 384 ple” would have the effect of modern-day structure for basic S.E.2d 598, 604 (1989). The “rendering the people safe, as public education: the Gover- federal courts, too, have rec- they are the ultimate guardians nor’s appointment of all mem- ognized the unique authority of their own liberty.” See A.E. bers of the Board of Education of Virginia school boards and Dick Howard, Commentaries and of a Superintendent of those federal judicial decisions on the Constitution of Virginia Public Instruction and division also bear study to appreciate 879 (1974) (hereafter, “Com- superintendents selected locally the potential implications. mentaries”). His early Bill by the respective local school boards. Commentaries at 914- Public education is a complex, would have resulted in allow- 15, 932. often big, business in contem- ing several years of some porary times and the conflicts education at public expense In 1969, the Commission on touching it continue in various for various children, although Constitutional Revision ren- ways. Those conflicts can it did not ultimately get adopt- dered its report to Governor 4 5 bring competing claims of ed. Eventually, though much Godwin, recommending chang- legal-societal control and later, Virginia’s Constitution es that led to the 1971 Constitu- influence that test traditional of 1870 “gave public educa- tion. Through the process that notions of local governance tion in the Commonwealth its culminated with overwhelming and decision-making before first genuine constitutional voter approval, the Constitu- the courts. Even today, how- underpinning.” Commentaries tion’s Education Article VIII ever, Virginia school boards at 881. Consistent with that assumed its present form: cities seem to have considerable development, a statewide and counties would not be able authority rooted not just in board of education came statu- to elect whether to have statutory provisions but more torily into being, with authori- schools and to help fund them, powerfully in the Virginia ty to appoint county superin- the supervision of the schools Constitution itself in the form tendents and manage school remain “vested” in the local of a deceptively simple decla- funds, id., and elected or ap- school boards by virtue of a ration: “The supervision of pointed trustees to constitute single sentence, and a constitu- schools in each school division the local governing board of tional ethic of education gained shall be vested in a school each school district, id. at 934. standing in the Bill of Rights,” board . . . .” Va. Const. art. The 1902 Constitution includ- declaring in distinctive Jeffer- VIII, § 7. With the record of ed additional emphasis on sonian-like language: results before the Virginia public education and stipulated That free government rests, Supreme Court over almost in its Section 133—the prede- as does all progress, upon the 100 years, the constitutional cessor provision to today’s broadest possible diffusion injunction casts a long shadow Article VIII, § 7—that “the of knowledge, and that the that might surprise more than a supervision of the schools in Commonwealth should avail few institutional players and each county or city shall be itself of those talents which

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nature has sown so liberally pervision” under Article VIII, school board may adopt by- among its people by assur- § 7, that reality should not be laws and regulations, not ing the opportunity for their lost in any analysis. Yet, an in- inconsistent with state stat- fullest development by an depth examination of Virginia utes and regulations of the effective system of educa- Supreme Court’s decisions Board of Education,12 for its tion throughout the Com- from this era and beyond own government, for the monwealth. leaves questions about inco- management of its official herent doctrine and predicta- business and for the supervi- Va. Const. art. I, § 15. See bility of the rules or standards sion of schools, including A.E. Dick Howard, The Vir- for future cases in assessing but not limited to the proper ginia Constitution at 40, 39 that authority. In the end, discipline of students, in- VBA J. 22, 25 (Spring 2012). though, Virginia school boards cluding their conduct going The Commission included, have an enviable history of to and returning from school. among others, Albert V. Bry- prevailing under its constitu- an, Jr., who in his father’s Va. Code § 22.1-78. Other tional grant of power. footsteps became a U.S. Dis- provisions of the Virginia Code trict Judge,6 Staunton City specify that a Virginia school Attorney and General Assem- A School Board’s board, among other things, bly member George M. Role and Power of “shall see that school laws are Cochran,7 who became a Vir- “Supervision” properly explained, enforced 10 ginia Supreme Court Justice,8 Virginia’s Constitution does and observed,” be fully in- former Richmond School not detail in any way what is formed about the schools and Board Chairman, Virginia meant by “supervision” in its “take care that they are con- Board of Education member, succinct prescription that such ducted according to law and and nationally prominent supervisory role is “vested” in with the utmost efficiency,” lawyer and American Bar the local school board for each maintain, manage and control Association President Lewis F. school division. In various school property and the related Powell, Jr., an eventual U.S. Virginia statutes within Title operations, including erecting Supreme Court Justice,9 and 22.1, however, the legal status and equipping necessary school Virginia’s revered leading and functions of school boards buildings by purchase, lease or civil rights attorney, Oliver are identified and, to some contract, consolidate schools Hill. The Constitution of Vir- degree, delineated. For exam- and redistrict school boundaries ginia, Report of the Commis- ple, a school board is recog- or adopt pupil assignment plans sion on Constitutional Revi- nized as a for efficiency, determine the sion (1969). In various ways, body corporate and, in its studies and methods of teach- each of them had witnessed corporate capacity, is vested ing and governance in the the epic battles in public edu- with all the powers and schools, adopt grievance pro- cation in the turbulent 1950s charged with all the duties, cedures, and various other and 1960s and beyond. They duties sown sometimes vexing- obligations and responsibili- 13 knew the force of a single ties imposed upon school ly throughout Title 22.1. The constitutional sentence, as boards by law and may be statutorily prescribed functions interpreted by the courts, sued, contract, be contracted and tasks of a school board which operated to considera- with and, in accordance include both the educationally bly blunt, if not undermine, substantive14 and the procedur- with the provisions of this 15 some aspects of Virginia’s title, purchase, take, hold, ally tedious, and range from “massive resistance” to racial lease and convey school those focused on essential integration of the public instructional achievement mat- board property, both real 16 schools. As courts today con- and personal. ters to those focused on what sider what meaning and force might be considered peripheral, 11 to ascribe to a Virginia school Va. Code § 22.1-71. In addi- if not extraneous, kinds of board’s fully exercised “su- tion, a things.17

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Early Virginia which does not deny to the the appeal given the absence of Supreme Court citizen the constitutional the taxing authority. In what is Decisions right to enjoy life and liber- one of the early, if not the As early as the 1920s, the ty, to pursue happiness and earliest, pronouncements by the Virginia Supreme Court began to acquire property. Virginia Supreme Court on a school board’s special role, the to give voice to the principle In the conduct of the public Court discussed the import of of deference owed to a Virgin- schools it is essential that the predecessor provision to ia school board. The Supreme power be vested in some what is now § 7 of Article VIII Court, in a case that somewhat legalized agency in order to of the Virginia Constitution. pitted parental authority maintain discipline and Implicitly leveraging the inter- against school disciplinary promote efficiency. In con- play of the “supervision” decla- rules in much simpler times, sidering the exercise of this ration of the Constitution and had occasion to offer com- power, the courts are not the provisions of the Virginia ments on the place of the concerned with the wisdom Code, the Court began to legislature and of a school or unwisdom of the act acknowledge a school board’s board in the Virginia legal done. The only concern of power: structure for public educa- the court is the reasonable- 18 tion: ness of the regulation prom- Section 133 of the Constitu- [T]he Acts [of the General ulgated. To hold otherwise tion provides for the creation Assembly] conferred upon would be to substitute judi- of a school board for each the . . . school board the cial opinion for the legisla- county and city, vested with power to make local regula- tive will. the supervision of the public schools within their several tions for the conduct of the Flory v. Smith, 145 Va. 164, jurisdictions, to be selected schools and the proper dis- 168, 134 S.E. 360, 362 (1926). cipline of students. This in the manner prescribed by power, however, was to be In 1933, the Virginia Supreme law. . . . Among the manifold exercised in connection Court squarely addressed the powers and duties prescribed with, and not paramount to, role and authority of a school by the statutes on the subject, the general provisions of the board under the constitutional the county school board is Code relative to the opera- grant that reposes in the school vested with the exclusive tion of the public schools. board—and only the school control of all school property Pursuant to this grant of board—the authority to super- in the county, both real and authority, the . . . school vise the schools. The General personal, has authority to board made the regulation Assembly of Virginia had condemn land for and erect complained of. undertaken statutorily to man- school houses, employ date that the Carroll County teachers, and to incur other While the Constitution of Board of Supervisors make a expenses incidental to the the State provides in manda- special levy for erecting and proper operation and admin- tory terms that the legisla- equipping a high school. The istration of the public ture shall establish and Carroll County School Board schools of the county. Under maintain public free joined with the Carroll County [several statutory provi- schools, there is neither Board of Supervisors initially sions], the school board mandate nor inhibition in to defend an attack against the alone is vested with the use the provisions, as to the locally enacted tax levy in- and control of all school regulation thereof. The leg- tended to benefit the school funds . . . and has the exclu- islature, therefore, has the division. When the Board of sive authority to expend power to enact any legisla- Supervisors chose not to pros- funds set apart for school tion in regard to the con- ecute the appeal to the Virgin- purposes. . . . [T]he county duct, control, regulation of ia Supreme Court, a taxpayer school board is also given the public free schools challenged the continuation of authority to employ counsel,

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and . . . whenever such ac- ey. Helping us remember that them by law, know accurate- tion may be necessary “for some things do not change that ly its personnel, its mode and the protection of the public much in local government manner of operation and the schools of the county from dynamics, the Chesterfield importance of the various loss or detriment from any County Board of Supervisors parts of the system. This in- cause”. . . . [W]e see no tried to dictate the division formation, the board of su- good reason why the . . . superintendent’s salary contra- pervisors do not have. If the school board of Carroll ry to the school board’s own board of supervisors has con- county should be denied the budgetary choice. “The Board trol of the various items of right of appeal in this case . of Supervisors reduced this the budget, it could exercise . . . Under the law the item” and after this amount a large amount of control school board not only has had been expended for this over the operation of the the authority, but it is its purpose, the Treasurer refused school system, and there duty, to protect the school to honor the warrants of the would be a serious division revenues by proper legal School Board, with the result of authority, which it would action, whenever threatened that the Superintendent only not seem the legislature with loss or detriment from received a smaller local salary would have intended. any cause. supplement. Board of Supervi- . . . sors v. County School Board, Sch. Bd. v. Shockley, 160 Va. 182 Va. 266, 268, 28 S.E.2d It is noted from these consti- 405, 409, 168 S.E. 419, 421 698, 699 (1944). Adopting in tutional provisions [includ- (1933) (emphasis added). toto the “excellent opinion of ing Section 133] that the lo- In reaching the underlying the learned trial judge” while cal school authorities, which merits on the tax levies, the referencing its 1933 Shockley is the school board, is to ap- Supreme Court remarked that decision, the Virginia Supreme portion and expend this “[m]anifestly, it was not con- Court specifically recognized money, and that all the su- templated by the framers of what it regarded as the exclu- pervisors have to do with it the Constitution to permit the sive grant of Section 133 of is to lay the levy . . . . legislature to nullify the pow- the Virginia Constitution and . . . ers and discretion thereby embraced the following con- conferred upon the local au- clusions: [T]he board of supervisors thorities of the several coun- has the right, within the lim- [T]he Constitution of Vir- ties and school districts of the its prescribed by law, in their ginia and the statutes of the State, as is attempted to be discretion, to fix the amount State clearly set up the done by the act under consid- of money to be raised by school board as an inde- eration.” Id. at 415, 168 S.E. at local taxation for school pur- pendent local agency 423 (emphasis added). From poses at whatever amount charged by law with estab- Shockley, the Court begins to they see fit, but they are con- lishing, maintaining and establish the doctrinal devel- cerned only with the total operating “an efficient sys- opment of a school board’s amount of tax to be levied, tem of public free schools.” unique grounding in the Con- and not with the individual It would be illogical to stitution of Virginia and the items of the school budget, make the School Board exclusive prerogatives that except in so far as it helps solely responsible for the grow from that grounding. them to determine the total efficient conduct of the amount of the tax to be lev- The Virginia Supreme Court school system, and then ied. After the board of su- found itself having squarely to give another board control pervisors have appropriated address a school board’s con- over expenditures to be money for schools, the ex- stitutional authority a decade made by the School Board. clusive right to determine later in a Chesterfield County The school boards, because how this money shall be clash—over, imagine it, mon- of the duties placed upon spend is in the discretion of

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the school board, so long as or to prohibit the School Board schools to be “inherently they stay within the limits from expending the same for a unequal” and hence in viola- set up in the budget. legitimate and proper pur- tion of the Fourteenth pose.” Id. at 432-33, 100 Amendment. The aftermath Id. at 275-78, 28 S.E.2d at S.E.2d at 30. of that decision was a crisis 702-03.19 in public education in Vir- In the cases ahead for the Thirteen years later, the Vir- ginia. In its effort to avoid or Virginia Supreme Court, legal ginia Supreme Court had to soften the impact of racial and political events brought decide yet another intergov- mixing in the schools, the added opportunity to outline ernmental local dispute in General Assembly enacted the reach of a school board’s Fluvanna County. This time “massive resistance” legisla- authority in other contexts the contest involved control of tion, then later turned to a particularly as to the Governor bond proceeds. In County “freedom of choice” plan. and General Assembly. This School Board v. Farrar, 199 These moves raised serious time, the legal battle into Va. 427, 100 S.E.2d 26 questions under both the which it became drawn in- (1957), “the question present- Federal and Virginia Consti- volved the so-called “massive ed [was] whether the School tutions and provoked litiga- resistance” of Virginia to Board, or the Board of Super- tion in both federal and state judicially mandated racial visors of Fluvanna county, has courts . . . . The schools . . . integration of the public the authority to disburse were subsequently reopened schools in the aftermath of the $750,000, the proceeds from by a ruling of the United U.S. Supreme Court’s Brown the sale of bonds for school States Supreme Court. decision in 1954. For anyone construction and improve- anticipating a contest today Commentaries at 883. ment.” Id. at 238, 100 S.E.2d over the reach of a Virginia at 27. After being advised by J. Harvie Wilkinson, III, now a school board’s authority, the the Attorney General that it long-serving and esteemed U.S. “massive resistance” cases— had that authority, the School Fourth Circuit judge, describes both state and federal—are not Board accepted a construction the circumstances in this way only historically but legally bid and later went to pay a in his fascinating book on the important and instructive in contractor for a $24 invoice. Commonwealth’s politics dur- any effort to synthesize the The Fluvanna treasurer refused ing 1945-1966: law and appreciate the deeply to honor the school board’s rooted source of authority. In the spring of 1954 . . . a warrant. A $24 invoice then new issue appeared on the became the impetus for seek- horizon which was to re- ing a writ of mandamus The Massive trieve the fortunes of the against the treasurer—a big Resistance Era: Byrd organization. The issue fight over a big principle not- A Trilogy of was school desegregation, withstanding the small ex- Surprise—Perhaps and under the banner of penditure. Reciting once again Professor Howard, in his two- ‘massive resistance’ the that “Section 133 of the Con- volume Commentaries on the Byrd machine quickly refu- stitution provides that supervi- Constitution of Virginia, helps eled its sputtering engines. sion of schools in each county us remember and grasp what shall be vested in a school Virginia’s education system— . . . board,” and noting that statuto- and the courts—experienced Massive resistance was truly following the U.S. Supreme rily a school board has the Virginia’s issue of the centu- Court’s Brown v. Board of “powers and duties” to erect ry. The profound changes Education decision: and furnish and equip school hinging on its outcome facilities, the Supreme Court In 1954 the United States should not obscure the hu- concluded that “[t]he Board of Supreme Court held racial man crises which enveloped Supervisors has no authority segregation in public its major participants. either to expend such proceeds

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Caught between disbelief schemes to avoid the effects of 199 Va. 511, 512-13, 100 and circumstance, political the Brown rulings. The Pupil S.E.2d 760, 762 (1957). leaders faced anguished de- Placement Board had as its In hindsight, it is worth ponder- cisions. aim to freeze any child in the ing what, if anything different, school then attended absent J. Harvie Wilkinson, III, Harry would have unfolded, unlike in contrary action by the Pupil Byrd and the Changing Face DeFebio, if the school board Placement Board. Commen- of Virginia Politics 112-13 had joined the attack on the taries at 891. The Virginia (1968). 20 Pupil Placement Board law and Supreme Court rejected the been a challenger rather than a It also enveloped those in the parent’s argument that the defender. legal community and brought statewide Pupil Place Board the Virginia Supreme Court violated the Virginia’s Consti- Yet, just two years later, sever- into the currents of political, tution’s Section 133 vesting of al other related legislative social, and judicial controver- exclusive supervisory control enactments also got tested in sy, producing decisional au- in the local school board. In the state courts even as parallel thority that continues to be rebuffing the parent’s conten- federal litigation ensued over cited by school boards today tion, the Virginia Supreme desegregation and the re- as they encounter legal con- Court seemed emphatic in its sistance to it. In the words of flict over institutional bounda- sweeping conclusions: the Virginia Supreme Court in ries and prerogatives under Harrison v. Day, “[i]t will be The legislature functions state law. Three cases offer observed that the stated pur- under no grant of power. It lessons—and leave unan- pose of the plan embodied in is the supreme law making swered questions—about how these acts is to prevent the body of the Commonwealth, those decisions will be applied enrollment and instruction of and has the inherent power even now to recently enacted white and colored children in to enact any law not in con- legislation that has the Com- the same public schools. To flict with, or prohibited by, monwealth, yet once more for that end, all . . . public schools the State or Federal Consti- wholly different reasons, seek- in which both white and col- tutions. Section 133 [now § ing to intervene boldly into ored children are enrolled are, 7 of Article VIII] of the local public education. The upon the happening of the Virginia Constitution, while trilogy of cases— DeFebio v. event, automatically closed, vesting “supervision” of Cnty. Sch. Bd., 199 Va. 511, removed from the public school public schools in local 100 S.E.2d 760 (1957); Harri- system, and place under the school boards, does not de- son v. Day, 200 Va. 764, 106 control of the Governor.” 200 fine the power and duties S.E.2d 636 (1959); and Cnty. Va. 439, 441-43, 106 S.E.2d involved in that supervision. Sch. Bd. v. Griffin, 204 Va. 636, 639-42 (1959). At that The general power to super- 650, 133 S.E.2d 565 (1963)— time, Section 140 of the Virgin- vise does not necessarily collectively help tell the story ia Constitution provided that include the right to desig- of state and local governments “White and colored children nate the individuals over in stress and distress during shall not be taught in the same whom supervision is to be massive resistance,21 with school.” See id. at 444, 106 exercised. If the legislature plenty of opportunity for con- S.E.2d at 642. In Harrison, a deems it advisable to vest flict that leads to the court- majority of the Virginia Su- the power of enrollment or house. preme Court decided to spurn placement of pupils in an the Virginia Attorney General’s DeFebio v. County School authority other than the lo- argument that “the General Board brought to the Virginia cal school boards, it may do Assembly now has plenary Supreme Court a challenge by so without depriving such power to deal with the public Fairfax County parents to the local school boards of any free school system in any man- statutory creation of the Pupil express or implied constitu- ner it may deem fit, unfettered Placement Board—one of the tional power of supervision. by any requirements of, or

Page 8 Journal OF Local Government Law limitations in, the Constitution soning as it is for the outcome. Harrison, and Farrar. Yet, it of Virginia.” Id. at 446, 106 In County School Board v. may be that the Virginia Su- S.E.2d at 643. As to school Griffin, “the Supreme Court . . preme Court partly worried boards’ constitutional authori- . held that the General Assem- that, within the ambivalent ty, speaking through Chief bly was under no obligation to framework of then existing Justice Eggleston, the Court see that schools closed by a constitutional language about determined: county were reopened— state and local governments’ despite the seemingly clear obligations, the Commonwealth Again, [the Act] . . . provid- language of section 129 that otherwise would have had to ing for the closing of the General Assembly must bear the entire cost of public schools because of integra- ‘establish and maintain an education when a locality is tion, divesting local authori- efficient system of free public unwilling to pay its share. ties of all power and control schools throughout the State.’” Chief Justice Eggleston, who over them, and vesting such Commentaries at 883. In its authored the majority opinion authority in the Governor, opinion, the Court remarked in Harrison v. Day, acknowl- violates Section 133 of the that: edged as much and yet still Constitution which vests the pointed out that there existed supervision of local schools The Board of Education, the the constitutional duty of the in the local school boards Superintendent of Public State to “maintain” the system, [(citing School Board v. Instruction and the local 23 and the Report of the Com- Shockley)] . . . . school boards are, as we mission on Constitutional Revi- held in Kellam v. School Similarly, the [other] Act . . sion in 1969 harkened to these Board,[22] . . . agencies of . providing for the estab- considerations when it recom- the State in the performance lishment and operation of a mended a constitutional man- of their duties, but the State State school system to be date of state and local funding. has committed to them by administered by the Gover- Report on the Commission of its Constitution and laws no nor and under the supervi- Constitutional Revision 258-59 duty, no power and no sion of the State Board of (1969). In his dissent in Griffin, means to operate the public Education, violates Section Chief Justice Eggleston fore- free schools apart from the 133. shadowed what was to come: will of the people of the . . . localities as expressed by The refusal of the highest While we agree that the the local governing bodies. court of this State to recog- nize here the rights of the State, under its police pow- The General Assembly may citizens of Prince Edward er, has the right under these determine for itself what is county, guaranteed to them conditions to direct the tem- an “efficient system” of under the Constitution of the porary closing of a school, public free schools so long United States, is a clear invi- the provision divesting local as it does not impair or dis- tation to the federal courts to authorities of their control regard constitutional re- step in and enforce such and vesting such authority quirements [(citing Harri- rights. I am sure that that in the Governor runs coun- son v. Day)] . . . . ter Section 133 of the Con- invitation will be promptly Griffin, 204 Va. at 667, 133 stitution. accepted. We shall see! S.E.2d at 577. 204 Va. at 677, 133 S.E.2d at Id. at 452, 106 S.E.2d at 646- What curious reasoning, in- 47. 584. And Virginia did. deed, perhaps especially in The concluding case of the light of its own collective The Federal Courts massive-resistance era state precedent and the seemingly Recognize School court trilogy is as much re- overarching constitutional Boards’ Authority markable for the Virginia principles to which it ostensi- In Virginia, “Prince Edward Supreme Court’s curious rea- bly subscribed in Shockley, County . . . was one of the

Page 9 Journal OF Local Government Law localities involved in the four and Harrison v. Day decisions, thority to formulate educa- cases that, as consolidated, concluded that “Council’s tional policy because they were decided as Brown v. action . . . will deprive the must balance so many com- Board of Education in 1954.” School Board of its rights, peting interests. They are Commentaries at 893. While powers, duties and obligations more in tune with education- the General Assembly of Vir- . . . .” Id. at 351. Several years al exigencies . . . than are ginia ultimately abandoned the later, in a continuation of federal courts. Thus, even school closing legislation and, extensive desegregation litiga- where appropriate, instead, “enacted new tuition tion,24 the Fourth Circuit Court “[r]emedial judicial authority grant and pupil placement of Appeals put it even more does not put judges automat- programs[,] [i]t also repealed cogently: ically in the shoes of school Virginia’s compulsory attend- authorities whose powers are The power to operate, main- ance laws and . . . made school plenary.” tain and supervise public attendance a matter of local schools in Virginia is, and . . . option.” Id. As Professor has always been, within the Howard highlights, In the case at hand . . . the exclusive jurisdiction of the “[m]eanwhile the Prince Ed- separate corporate bodies local school boards and not ward suit dragged on. In 1959, established by Virginia law within the jurisdiction of the the . . . Fourth Circuit directed are no subterfuge; they were State Board of Education . . the federal district court to not intended to circumvent . . Indeed, the operation of enjoin discriminatory practices any federally created right. public schools [prior to the and to require the school board To the contrary, Virginia’s 1971 Constitution] has been to take immediate steps toward longstanding division of au- a matter of local option. desegregation of the county thority serves legitimate state schools.” Id. In the context of Bradley v. Sch. Bd., 462 F.2d purposes . . . . [P]laintiffs’ Virginia’s response to Brown, 1058, 1067 (4th Cir. 1962) invitation to blur the lines of while the Virginia Supreme (emphasis added). 25 educational authority must be declined. Court’s Harrison v. Day is Even more recently, albeit in a 26 remarkable in some sense, the different context, the Fourth Id. at 641-42. federal courts get credit for Circuit also noted that “Vir- opening the public schools not Alleghany County ginia law vests the School Decision Adds Force only in Prince Edward County Board with exclusive authority but also in Norfolk and other Squeezed chronologically over Richmond’s public localities. In James v. Duck- between the trilogy of Virginia schools,” citing § 7 of Article massive resistance cases and worth, 170 F. Supp. 342, 343 VIII of the Virginia Constitu- (E.D. Va. 1959), Judge Hoff- later case developments, the tion and quoting Bradley v. Virginia Supreme Court rested man recounted that “[t]his is School Board. Bacon v. City of another chapter involving the its Howard v. County School Richmond, 475 F.3d 633, 641- Board of Alleghany County, legal skirmishes confronting 642 (4th Cir. 2007). The this and appellate courts fol- 203 Va. 55, 122 S.E.2d 891 Fourth Circuit underscored (1961), decision again on the lowing . . . Brown . . . .” Aside that from the obvious result, Judge Virginia Constitution in resolv- Hoffman’s decision reiterated [l]ocal control over the op- ing what was presented as a that the school board’s au- eration of public schools is property control dispute. This thority had been usurped by one of our nation’s most time, the contest originated the city council in preventing deeply rooted traditions— with a group of Alleghany the opening of Norfolk and for good reason. County citizens who sought a schools; and, after citing the “[L]ocal autonomy has long referendum, sanctioned by a Virginia Supreme Court’s been thought essential” . . . Virginia statute, to determine Board of Supervisors v. Ches- [and] [s]chool authorities that a recently acquired proper- terfield County School Board are granted substantial au- ty by the school board was no

Page 10 Journal OF Local Government Law longer needed. As the Virginia erty, even though devoted to 217 Va. 558, 232 S.E.2d 30 Supreme Court summarized a present use, by an elec- (1977), the Attorney General of the situation, “[t]he present torate that may disagree Virginia challenged a collabo- proceeding is a further attempt with its policies. Clearly the rative, coordinated effort by the of [the citizens] to thwart the board cannot properly exer- Arlington County Board of purpose of the [school board] cise “supervision” of Supervisors and the Arlington to construct the high school schools entrusted to it if it County School Board to adopt building on the site and thus may thus be divested of policies that authorized enter- devote the property to the use property which in its judg- ing into collective bargaining for which it was acquired.” Id. ment is being used or agreements with various labor at 56, 122 at 893. The school should be used for school unions as the sole representa- board decided to intervene in purposes. tives of different groups of the proceedings instituted by Arlington public employees Id. at 58-59, 122 S.E.2d at the citizen group to obtain a and a form of dispute arbitra- 893-94. court-ordered referendum. tion. Id. at 559, 232 S.E.2d at Once more, adding deeper Distinguishing its 1957 deci- 32. Invoking the Dillon Rule27 roots to earlier decisions and sion in DeFebio, which sanc- and acknowledging analytical more branches to the case law, tioned the legality of a central tension with the mode-and- the Virginia Supreme Court Pupil Placement Board to manner argument in response rested on a central constitu- direct pupil assignment in the by the school board especially tional principle under the local schools, the Virginia within its Article VIII, § 7 predecessor to now §7 of Supreme Court held “that the implied powers, the Supreme Article VIII: statute under consideration is Court of Virginia could not be unconstitutional and void . . . persuaded. It rejected the We agree with the position .” Id. at 60, 122 S.E.2d at 895. school board’s and the board of of the Board that this statute supervisor’s arguments that violates § 133 of the Consti- Arlington County and either had the constitutional tution of Virginia and is Parham Cases— power to enter into such collec- invalid. Doctrinal Coherence? tive bargaining agreements. In Following Howard’s constitu- . . . doing so, beyond emphasizing tional contest, in the 1970s the the lack of support in Virginia In plain language § 133 constitutional authority of public policy for collective vests in the local school school boards got play before bargaining with public employ- board, as the agency of the the Virginia Supreme Court in ees, id. at 581, 232 S.E.2d at State, the “supervision of two cases that both involved 44, the Court latched on to schools.” Harrison v. Day, . personnel matters: one from analytical criterion that there . . Kellam v. Sch. Bd. In the City of Richmond and one could not be a “legitimate such supervision, it is an from the County of Arlington. claim” that “the [implied] pow- essential function of the Both decisions, with little er to enter into collective bar- local school board to deter- more than a year between gaining agreements is indispen- mine whether a particular them, involved disputes pri- sable to the discharge of the property is needed for marily over school board [constitutional] functions of the school purposes and the decision making authority and School Board,” id. at 576, 232 manner in which it shall be the delegation of it. In each S.E.2d at 41-42 (emphasis used. Yet the effect of the scenario, under prescribed added). The Supreme Court statute under review is to procedures, employment dis- cites no legal authority for its divest the board of the exer- putes were to be decided to use of the “indispensable” cise of that function and some degree by a third party— criterion—and offers no doctri- lodge it in the electorate . . . a kind of binding arbitration. . Moreover, by virtue of the nal factors to distinguish be- statute, the board may be In Commonwealth v. County tween what is “indispensable” divested of all school prop- Board of Arlington County, or not. What may have been the

Page 11 Journal OF Local Government Law pivotal motivation for the purportedly also had authority More Recent School Supreme Court was the specter to decides questions of grieva- Board Wins of local public employee bar- bility of particular disputes. Two more modern-day deci- gaining and Virginia’s histori- The Richmond School Board sions and language used by the cal public policy about it—in rightly advanced the argument Virginia Supreme Court strong- its own words, the “over- that such a scheme violated the ly suggest a renewed recogni- whelming indications of legis- Virginia Constitution’s Article tion of the unique constitutional lative intent” not (yet) to em- VIII, § 7 provision exclusively grant of power to school brace it generally. Id. at 581, vesting supervision of the boards. Yet, the Court’s deci- 232 S.E.2d at 44. From one schools in local school boards. sions still leave questions about vantage point, the Supreme In this instance, again speak- coherent consistency in doc- Court gives every hint that its ing through Justice Carrico as trine. Those representing decision allowed a judicial in the Arlington case, the school boards, however, should sense of public policy— Court framed the “real ques- find comfort in both decisions. buttressed merely by cited tion in the case” as “whether In the process of analysis that advisory opinions of the Vir- the binding arbitration provi- emphasizes the Article VIII, ginia Attorney General—to sion of the Procedure produces § 7 mandate, the Court trump the Virginia Constitu- an unlawful delegation of strengthens even more the tion and its Article VIII, § 7 power.” Id. at 956. 243 S.E.2d grounding for Virginia school mandate. In the telling words at 472. Drawing from “essen- board’s exclusive prerogatives of the Court near the end of its tial function” language in its that are part of the meaning of opinion, “we decline to intrude Howard case that refused to “supervision”—and the full upon what the Attorney Gen- allow a state referendum stat- exercise of it. eral succinctly describes as a ute to strip a school board of After the Supreme Court in ‘singularly political ques- control over property, the Parham had invalidated the tion.’” Id. Instead, from the Court found the grievance binding arbitration provision of vantage point of the Arlington binding arbitration provision the Virginia Board of Educa- County School Board, the to have the “same effect” to tion’s grievance procedure, the Court intruded upon the local “transfer to others a function General Assembly enacted constitutional authority to run essential and indispensable to statutes which authorized the the schools. the exercise of the power of Board of Education to prescribe supervision vested by § 7 of In the other case, School an optional, advisory three- Article VIII.” Id. at 957, 243 Board v. Parham, 218 Va. member fact-finding panel S.E.2d at 472 (emphasis add- 950, 243 S.E.2d 468 (1978), process in employment dis- ed). Now, the extant constitu- the Virginia Board of Educa- putes. After conducting a hear- tional § 7 doctrinal test osten- tion had imposed on the ing, the panel would submit a sibly employs a new phrase: Commonwealth’s school report and recommendation to not only “indispensable” but boards a grievance procedure the school board. The Virginia also “essential”—whatever that ultimately required the Supreme Court’s decision in that means, if different from submission of a covered em- Russell County School Board v. just “indispensable.” The court ployment dispute to binding Anderson, 238 Va. 372, 384 concluded “that the binding arbitration. The arbitration S.E.2d 598 (1989), aside from arbitration provision of the panel consisted initially of two its interesting facts about the Procedure produces an unlaw- partisans: one selected by the teacher’s alleged conduct, ful delegation of power, viola- school board and one selected brought to the fore whether the tive of § 7 of Article VIII of by the employee. If the two panel’s findings carried special the Constitution.” Id. at 959, partisans failed in resolving weight. The circuit court had 243 S.E.2d at 473. the dispute, they would choose concluded that the panel’s fact a third member to comprise a findings must be accorded the three-member panel. The panel weight given jury verdicts. Id.

Page 12 Journal OF Local Government Law at 379, 384 S.E.2d at 600-02. subject to binding arbitra- cocktails, and other contro- Reversing the circuit court and tion . . . . In Parham, we versial subjects were inap- citing its precedent, the Vir- wrote that “the function of propriate for a seventh grade ginia Supreme Court made applying local policies, class. plain with emphatic language rules, and regulations, Id. at 383-85, 384 S.E.2d at that: adopted for the management 604-06 (emphasis added). of a teaching staff, is a func- [T]his case presents a clash tion essential and indispen- Twenty years later, in 2009, the between the finality of the sable to exercise of the Virginia Supreme Court had findings of a statutorily cre- power of supervision vested yet another potential clash ated panel and a school by § 7 of Article VIII.” . . . between an enactment of the board’s power to discharge If, as the trial court be- General Assembly and a school employees—a power which lieved, the findings of the board’s constitutional supervi- is rooted in the Constitution statutory panel bind the sory role even as it pitted a of Virginia. Va. Const. art. Board, the statute may be circuit court’s authority against VIII, § 7. No statutory en- constitutionally infirm; but that of a school board. The actment can permissibly we think that a proper read- school board’s view prevailed, take away from a local ing of the statute—which again. In Commonwealth v. school board its fundamen- we undertake below— Doe, 278 Va. 223, 682 S.E.2d tal power to supervise its obviates any constitutional 906 (2009), a Virginia statute school system. See Howard concern. allowed a sexually violent v. County School Bd., 203 offender to seek permission to Va. 55, 58-59, 122 S.E.2d . . . be somewhere he knows or has 891, 895 (1961) (unconsti- Thus, from a statutory reason to know is a place where tutional to divest school standpoint, the situation is he is statutorily prohibited: a board of authority to decide one in which the statute was day care center or private or when school property could written in the shadow of the public school property during be put up for sale); Harri- Constitutional provision school-related and school- son v. Day, 200 Va. 439, concerning school boards sponsored activities. Aside 452, 106 S.E.2d 636, 646 and in the shadow of our from several narrow exceptions (1959) (unconstitutional to cases giving full effect to stated in the statute, such a attempt, by statute, to divest that provision. Neither the person must follow a procedure local school board of au- statutory provision concern- to give notice to the Common- thority to run schools); ing panels, nor the one con- wealth Attorney and the school County School Board v. cerning school-board review administrator, and the offender Farrar, 199 Va. 427, 433, of panel decisions, states or must petition a juvenile and 100 S.E.2d 26, 30 (1957) suggests that panel fact domestic relations district court (county board of supervi- findings shall be binding on or a circuit court for permis- sors lacked power to expend a school board. sion. The statute, as written at proceeds of school con- . . . that time, included no mention struction bonds or to prohib- of obtaining the permission of it school board from ex- We hold, therefore, that the the division superintendent or pending such funds for Board was empowered to school administrator. The cir- legitimate and lawful pur- redetermine the facts where cuit court granted permission pose). it deemed it appropriate to do so. It follows then . . . over the objection of the Char- . . . that the trial court erred in lottesville Commonwealth Attorney and the Division In School Board v. Parham ruling that the Board was Superintendent of Char- . . . , we struck down a pro- not free to conclude that lottesville Public Schools. On vision which sought to class projects involving appeal, they contended that the make local school boards premarital sex, inter-racial violence, fascism, Molotov circuit court applied the statuto-

Page 13 Journal OF Local Government Law ry provisions in a manner that courts’ authority to deter- schools. The Virginia School violated Article VIII, § 7 of mine whether the statutory Boards Association (VSBA) the Virginia Constitution. ban should be lifted in and the City of Norfolk School Writing for the Supreme whole or in part based on Board have attacked the new Court, then Justice Keenan28 the particular circumstances law, filing a complaint for emphasized that in construing of a given offender. This declaratory judgment, injunc- statutes, the starting point is construction assures the tive and other relief in the the principle that courts have a constitutionality of the stat- Norfolk Circuit Court. Sch. Bd. duty to avoid any conflict with ute and preserves the sound v. Opportunity Educ. Inst., No. the Virginia Constitution, legislative purpose of in- CL13006955-00 (Va. Cir. filed whenever possible. In its re- volving both the courts and Sept. 13, 2013) (hereafter, view, through Justice Keenan, the affected day care and “Complaint”). the Supreme Court observed school authorities in these Under the OEI law, a part of that the offender’s construc- decisions of manifest public the package of the Governor’s tion of the statutory permis- importance. so-called “ALL STUDENTS” sion language would “elimi- Id. at 232, 682 S.E.2d at 910 initiative,29 an OEI board is nate the school boards’ (emphasis added). statutorily created to intervene authority to determine whether and assume “[s]upervision of the presence of such an of- The Doe decision now intro- any school that has been ac- fender would adversely affect duced yet another word in the credited with warning for three the safety and welfare of stu- judicial description of a school consecutive years” by “transfer dents on school property.” board’s constitutional interest [of] such school to the Institu- Doe, 278 Va. at 230, 682 and related power: manifestly. tion.” Va. Code § 22.1-27.2(B). S.E.2d at 909. Without any At the same time, it also pro- The legislative scheme also reference to “essential” or vided school boards with even purports to empower the OEI “indispensable” or “fundamen- more persuasive precedent that board to “supervise and operate tal,” the Court readily, without they are entitled under the schools in the Opportunity citation to any authority, de- Constitution to “exercise ful- Educational Institution in clared that “[s]uch decisions ly” their constitutional prerog- whatever manner that it deter- regarding the safety and wel- atives. Doe reassured Virginia mines to be most likely to fare of students are manifestly school boards that judges achieve full accreditation for a part of the supervisory au- could not preempt the role of each school in the Institution, thority granted the school school boards in school safety including the utilization of boards under Article VIII.” Id. matters. charter schools and college (emphasis added). Rejecting The OEI Litigation: New partnership schools.” Va. Code the offender’s argument that or Familiar Ground? § 22.1-27.2(C). Per pupil fund- various other statutes directly Just recently, the issue of a ing for any student “under the or indirectly affect or restrict school board’s constitutional supervision of the Institution” the supervisory authority of role has been raised in the is “transferred to the Institu- school boards, the Court sum- context of a new, bold initia- tion.” Va. Code § 22.1-27.5(A). marized its determination in tive by the Commonwealth. The legislation has other bold this manner: Referred to as “OEI,” a short- features, including those that We agree with the Com- hand moniker for Opportunity can impact personnel. See, e.g., monwealth’s construction of Education Institution, the 2013 Va. Code § 22.1-27.4. the statute because this in- General Assembly enacted this In its complaint, the Norfolk terpretation permits the 2013 legislation—touted by School Board and the VSBA school board to exercise the Governor—as a way to contend that the OEI law is fully its supervisory authori- address what some might unconstitutional because it ty under Article VIII, while describe as students trapped in allegedly purports “to establish preserving the circuit academically failing public a statewide school division,

Page 14 Journal OF Local Government Law contrary to Article VIII, § 5” it gets beyond potential again, according to the judi- and purports “to create a threshold issues over jurisdic- ciary? school division that is super- tion, ripeness, standing, and  Should some other doc- vised by the OEI Board” that even “political questions.” See trine—a rule or standard— is “contrary to Article VIII, § Comm. v. Cnty. Bd., 217 Va. be utilized that reflects the 7” of the Virginia Constitu- 558, 581, 232 S.E.2d 30, 44 “deeply rooted tradition” of tion. Complaint at ¶¶ 33-34, (1977). local educational control; No doubt, the resolution of that acknowledges the tenu- these contentions will involve Some Legal, ousness of courts, in effect, arguments that employ prior Strategic and presuming to be in the busi- opinions of the Virginia Su- Tactical Questions ness of second-guessing preme Court. On the school At some point, whether in the what is “supervision” as plaintiffs’ side, Shockley, OEI litigation or in another 30 school boards undertake Chesterfield, Harrison, Far- legal contest, a fundamental their democratic decision- rar, Howard, Parham, and question needs to be asked and making in governance and Anderson will likely be cited. answered. That question is operational challenges in a On the OEI board side, the whether, as suggested by modern day world; that rec- courts can expect to hear about DeFebio, the General Assem- ognizes the business of pub- the preeminence of the Legis- bly has preeminence and may lic education today as com- lature and much about define—however it prefers— plex and big with dynamic DeFebio and Arlington Coun- the meaning of “supervision” tensions in an arguably liti- ty, among other authorities. It under § 7 of Article VIII: gious environment for may be that DeFebio—with its  Put perhaps another way, is school boards; and that seemingly emphatic, broad § 7 of Article VIII self- demonstrates the judiciary’s language about “[t]he general 31 executing, as more recent ultimate deference to a vital power to supervise . . . not opinions of the Virginia local government institution necessarily includ[ing] the Supreme Court would im- of a self-governed people right to designate the individu- plicitly suggest without di- who, in an overwhelming als over whom supervision is rectly confronting the is- number of Virginia locali- to be exercised”—may prove 32 sue? ties, now have the power to most interesting. 199 Va. at elect directly their school 512, 100 S.E.2d at 761-62.  Also, as to those situations board members?33 Perhaps, if the litigation in which the General As- reaches the Virginia Supreme sembly has not spoken  Or, using its own language Court, the case will offer an about the boundaries or in Arlington County, might opportunity for the Court to contours of the exclusive the Court in the OEI or oth- synthesize and harmonize in a power of “supervision,” er future litigation assert more doctrinally coherent what analytical criteria or that “conscious of the re- manner the analysis that factors should be determi- spective roles of the General should be used to determine a native in the courts? Assembly and the judiciary, school board’s claim of consti-  Will it be a test that turns we decline to intrude upon tutional power or encroach- on “indispensable” or “es- what the Attorney General ment. Lower courts and the sential”—or “indispensable succinctly describes as a Bar can only hope, so there and essential,” as fashioned ‘singularly political ques- might be even more predicta- 34 and described by the judi- tion”? And if so, what is bility and consistency. Look- cial branch? the potential mischief of the ing at the overall precedential Virginia Supreme Court de- record of wins over almost a  Or will the constitutional termining that its sense of hundred years, the OEI litiga- power under Article VIII, § public policy trumps the tion portends to be a signifi- 7, simply be “manifest”— Virginia Constitution, as cant constitutional contest—if

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might be seen as occurring avenue afforded statutorily? loyalties, particularly on sensi- in Arlington County? Va. Code § 8.01-626.44 tive inter-government relation- ship issues, can undermine the On the strategic and tactical Yet another tactical considera- confidence in the independence levels, before contemplating tion for local government and of legal counsel that is not any litigation by a school other counsel is the value and easily repaired.49 board against another public advantage, if any, of any for- body, school board counsel mal opinion of the Virginia Conclusion will want to be sure that either Attorney General, either mar- The Virginia Supreme Court’s the governing body consent shaling it as an historical ref- jurisprudence on Article VIII, § statute does not apply or the erence on an issue or seeking 7, and its predecessor provision requirements have been met.35 on the immediate issue within may leave some questions Also, as to any school board a particular context. Such about doctrinal coherence.50 legal contest with its county opinions addressing a school Nonetheless, Virginia’s school governing body, careful analy- board’s constitutional authori- boards may make rightful claim sis is merited on whether, ty, like any other Attorney to considerable preeminence, perhaps, a claim must first be General opinion, are merely with citation to those Virginia presented to the county?36 Just advisory, and the Virginia Supreme Court decisions that as importantly, counsel will Supreme Court need not give give full effect to the deeply 45 need to keep in mind the na- them much or any weight. rooted, long shadow of the ture and context of the dis- Moreover, sometimes the boards’ manifest constitutional pute.37 The Virginia Supreme Attorney General misses the power. For Virginia school Court has shown notable def- mark,46 although recent opin- boards, they might even be erence to school boards re- ions seem to suggest a con- tempted to say—in a positively garding personnel decisions,38 sistent recognition of a Virgin- candid moment — that “it is a property disposition,39 student ia school board’s unique heck of a [pretty good] way to 40 matters, and considerations constitutional authority de- run a Constitution.” Yes, per- of safety.41 Any counsel con- scribed in ways favorable to haps, indeed. sidering litigation, as well, school boards.47 needs to assess legally whether In the representation of a 1 an “actual controversy” exists Obituaries, D. Dortch Warriner, school board by an attorney sufficient to establish a court’s N.Y. TIMES (March 17, 1986), who also has an attorney-client jurisdiction, including the available at relationship with another http://www.nytimes.com/1986/03/18/o possibility of a declaratory governmental body in a poten- bituaries/d-dortch-warriner.html. judgment proceeding.42 Also tial dispute, matters of conflict Judge Warriner began his tenure on in a strategic sense, when a of interest should be identified the federal bench in 1974, follow- Virginia circuit court or a ing service as Emporia’s City early and transparently with juvenile court43 seeks to inter- Attorney and his and selection by candor as both a tactical and pose its authority so as to President Nixon. Id. ethical concern. The prospect impinge on a school board’s 2 “We conclude that in the field of of divergent legal positions, constitutional powers, is it the public education the doctrine of especially as they might mani- right scenario for an appellate ‘separate but equal’ has no place. fest themselves ultimately in challenge? And will that chal- Separate educational facilities are litigation, should be a sobering lenge from a circuit court, if it inherently unequal. Therefore, we consideration for any counsel hold that the plaintiffs and others involves adverse injunctive serving in dual roles and desir- similarly situated for whom the relief, merit immediate tactical ing to comply with the Rules actions have been brought are, by interlocutory recourse to the of Professional Conduct.48 reason of the segregation com- Virginia Supreme Court (or While dual representation can plained of, deprived of the equal possibly the Virginia Court of work and can have its ad- protection of the laws guaranteed Appeals) through the special by the Fourteenth Amendment.” vantages in general, the per- Id. at 495. See generally History of ception of directly competing Brown v. Board of Education, U.S.

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COURTS, 5 Professor Howard offers this and had traveled far beyond the http://www.uscourts.gov/educational- recap of developments: “In 1850- borders of Virginia. They had resources/get-involved/federal-court- 51, a convention achieved many of returned to the state aware that activities/brown-board-education-re- the reforms sought . . . . At last, 75 all governments did not run on enactment/history.aspx. years after the Revolution, the the gospel according to Harry 3 In a school personnel case, Judge governor was to be elected by the Byrd. In the postwar years the Warriner also illustrated his plain- people, something like free white Young Turks entered politics. spoken ways and gave a reminder manhood suffrage was adopted, They were concerned over the about his view on the role of the and representation was based more growing demands on state and court: “This is a court of limited closely on population. The Civil local government and eager to jurisdiction having no authority to War and Reconstruction brought play some role in shaping state right all wrongs or to rectify the next round of constitutional policy. Yet the Byrd organiza- errors. Where there is no substan- change. The policies of Recon- tion, steeped in the tradition of tial issue of fact it would be error struction obliged the former Con- balanced budgets and pay-as- to grant a plenary hearing and a federate states to adopt new con- you-go, demanded long appren- trial on the merits. It would also be stitutions. At a convention in ticeship. The Turks (most of an imposition upon school offi- Richmond in which a quarter of whom represented districts cials to have the thought, effort, the delegates were black, innova- which, historically, had been resources and money diverted to tions included provision for a marginal territory for the organ- litigation which properly belongs statewide system of education.” ization) soon became impatient to education.” Gwathmey v. Atkin- A.E. Dick Howard, The Virginia . . . . The Turks were above all son, 447 F. Supp. 1113, 1121 Constitution at 40, 39 VBA J. 22, respectable; they offered many (E.D. Va. 1976). A former Chief 25 (Spring 2012). moderate Virginians the first Judge of the Fourth Circuit years 6 See Albert Vickers Bryan, Jr., real alternative to orthodox or- later informally expressed similar Federal JUDICIAL CENTER, ganization doctrine . . . . [They] concern about litigation and the http://www.fjc.gov/servlet/nGetInfo?jid offered a middle course be- schools in a provocatively entitled =296&cid=999&ctype=na&instate=na. tween the radical reformers and forum. See J. Harvie Wilkinson, 7 George Moffett Cochran was one the low-tax, low-service formu- III, et al., Did the Law Cause of the “Young Turks” who, in the la of the old Byrd organization. Columbine? (Aug. 13, 1999), at 1950s and later, following Brown, Panel Discussion of the Federalist Id. at 106-07. Also counted among “represented a new political breed Society, available at the Young Turks were Stuart Carter in Virginia.” J. HARVIE http://www.fed- of Botetourt-Craig, Joseph Black- soc.org/publications/detail/did-the- WILKINSON, III, HARRY BYRD burn of Lynchburg, Eveland Comp- law-cause-columbine (“So we now AND THE CHANGING FACE OF ton of Albemarle-Greene, Walter are in a society which freely and VIRGINIA POLITICS 106 (1968). Page, John Rixey and Toy Savage instinctively litigates routine Staunton's judicial center is named of Norfolk, Julian Rutherfoord of public school decisions in the in his honor and memory. Led by Roanoke, William Spong of Ports- federal judiciary . . . . Time spent Armistead Boothe of Alexandria, mouth, Charles Wampler of Rock- in court is time out of the class- George Cochran and the other ingham-Harrisonburg, and John room. Answering depositions Young Turks “moved almost Web of Fairfax-Falls Church. Id. at educates no one. . . . The impulse completely away from the Gover- 108-09 (Table 10). to let courts decide can undermine nor’s influence” in a “revolt” that 8 See George M. Cochran, parental and educational authority included “calling for repeal of WASHINGTON POST (Jan. 28, 2011), to the serious detriment of an state segregation laws affecting all available at entire generation. . . . .”). forms of public transportation and http://www.washingtonpost.com/wp- for the establishment of a Virginia 4 See Anna Berkes, A Bill for the dyn/content/article/2011/01/27/AR2011 Civil Rights Commission to study 012707482.html. More General Diffusion of economic, educational, and other 9 Knowledge, MONTICELLO (April Joan Biskupic & Fred Barbash, phases of race relations in order to Retired Justice Lewis Powell Dies, 2009), available at recommend corrective measures.” WASHINGTON POST, Aug. 26, 1998, http://www.monticello.org/site/researc Id. As now-Judge Wilkinson h-and-collections/bill-more-general- at A1, available at diffusion-knowledge. describes it in his book, http://www.washingtonpost.com/wp- Many [of the Young Turks] srv/national/longterm/supcourt/stories/p had served in World War II owell082698.htm. Judge Wilkinson

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comments that “Lewis F. Powell, before Labor Day, unless the school judiciary’ . . . [attacking] integration, Jr., is best known as a voice of division meets the prerequisites for an federal bureaucracy, and all the other decency and moderation on the alternative schedule). leftist demons. Publicly Almond United States Supreme Court. But 18 See generally Norma E. Szakal, The appeared the political go-getter, the the years after Brown v. Board of Governing Structure of Public Educa- spellbinding orator, and one of the most massive of all resisters.” Id. at 136. Education were among the most tion in Virginia, 73 THE VA. NEWS LETTER 1 (Weldon Cooper Center for Almond, however, came face to face in difficult of his life.” J. HARVIE Public Service 1997), available at a gubernatorial race with Ted Dalton, WILKINSON, III, ONE NATION “the Republican who had almost INDIVISIBLE 67-69 (1997). http://www.coopercenter.org/publicati defeated Stanley [(with running mate ons/governing-structure-public- 10 “Depending on how one counts, Staunton lawyer Stephen Timberlake education-virginia-0. for lieutenant and Norfolk lawyer we in Virginia have had at least 19 Conflict between a Virginia school Walter Hoffman for Attorney General)] six constitutions—1776, 1830, board and a governing body are not just four years before.” Id. at 138. 1851, 1870, 1902, and 1971.” A.E. new and can—and do—occur today. Dalton, who would become a U.S. Dick Howard, The Virginia Con- The Virginia Supreme Court, in what District Judge in the Western District of stitution at 40, 39 VBA J. 22, 23 might be a rare rhetorical flourish for Virginia, “launched a systematic attack (Spring 2012). its historically staid opinions, had the on massive resistance. He called the following to say in putting the blame 11 A school board also has been Pupil Placement Board ‘the most on the board of supervisors in a flagrant example of centralized power referred to as a political subdivi- quarrel over a piece of property that that has been witnessed in Virginia and sion of Virginia, see, e.g., Va. the school board sought to acquire American since the adoption of the Code § 15.2-2701; Va. Code § from a trustee but could not seem to Tenth Amendment to the Constitution' . 2.2-3701; Va. Code § 2.2-4115; get funded adequately: “Mr. Wright, . . and advocated a locally administered Purdham v. Fairfax Cnty. Sch. counsel for the trustee bank, has, with pupil assignment plan and token com- Bd., No. 1:09-cv-50, 2009 WL Ithuriel’s spear, touched the heart of pliance with the [U.S. Supreme] 4730713 (E.D. Va. Dec. 9, 2009); this litigation and the source of all its Court’s [Brown] decision . . . .” Id. Frederick Cnty. Sch. Bd. v. Han- troubles: [the board of supervisors] . . . According to Judge Wilkinson, “Dalton . The Board of Supervisors may be nah, 267 Va. 231, 236, 590 S.E.2d was quickly branded an integrationist. justly charged with rue-bargain.” Eisenhower’s decision in the fall of 567, 569 (2004), and as a quasi- Cnty. Sch. Bd. v. Bd. of Supervisors, 1957 to send troops to enforce integra- municipal corporation. See, e.g., 184 Va. 700, 706-07, 36 S.E.2d 620, tion in Little Rock, Arkansas, cost him Taylor v. City of Charlottesville, 623 (1946).”"Ithuriel's spear” is a thousands of votes . . . [In his own 240 Va. 367, 373, 397 S.E.2d 832, reference to Milton's Paradise Lost. words, explaining the loss to Almond,] 836 (1990); Kellam v. Sch. Bd., The spear of the angel Ithuriel caused candidate Dalton remarked ‘[i]t wasn’t 202 Va. 252, 258-59, 117 S.E.2d everything it touched to assume its a little rock, it was a big rock.’” Id. 96, 100 (1960); West v. Jones, 228 proper shape, including the image of President Eisenhower ultimately put Va. 409, 413-14, 323 S.E.2d 96, Satan in the Garden of Eden. Judge Dalton, a native of Carroll WEBSTER'S NEW TWENTIETH-CENTURY 99 (1984). County, on the federal bench in 1959, DICTIONARY 976 (2d ed. 1956). With as the successor to Judge John Paul. 12 Or may it, given its power under the Virginia Supreme Court’s descrip- See Ted Dalton, FEDERAL JUDICIAL Article VIII, § 7 of the Virginia tion in that appeal, the local governing CENTER, Constitution? body could hardly be flattered by it in 13 http://www.fjc.gov/servlet/nGetInfo?jid See, e.g., Va. Code § 22.1-79. the context of realizing Milton’s =554&cid=999&ctype=na&instate=na. 14 description and an artistic rendering of See, e.g., Va. Code § 22.1-199.1, 22- As events would have it, Judge Dalton it. See WOA 2885, PARLIAMENT, 1-201 (authorizing school boards to eventually presided over school deseg- http://www.parliament.uk/worksofart/ create an implement a plan for inte- regation cases in the Western District artwork/john-callcott-horsley/satan- grating technology into the classroom of Virginia. See, e.g., Green v. Sch. Bd., touched-by-ithuriel's-spear-while- and to develop curriculum focusing on 330 F. Supp. 674 (W.D. Va. 1971); whispering-evil-dreams-to-eve-- key American historical documents in Burruss v. Wilkerson, 310 F. Supp. 572 paradise-lost-/2885. order to emphasize Virginia's role in (W.D. Va. 1969). In the Western 20 United States history). Any fuller understanding of the District, school divisions continued to 15 legal issues of that time also is in- deal with issues on how to implement See Va. Code § 22.1-305 (proba- formed by the broader political con- tionary/annual contract teacher nonre- desegregation. In Staunton, for in- text and contests and the lives of those newal process). stance, at least into the mid-late 1960s, involved during those times. For 16 school board meeting minutes reflect See Va. Code §§ 22.1-252.14.1- example, Virginia Attorney General discussions and efforts to address race- 253.13:9 (Standards of Quality). Almond became a central figure in the related issues. See Minutes of Staunton 17 See, e.g., Va. Code § 22.1-79.1 legal battles, as the “’'little David' Sch. Bd. Meeting (March 15, 1966). (giving school boards the authority to defending the laws of the common- Other Virginia localities had their set the academic calendar, not to begin wealth from the ‘Goliath of the federal

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issues—and litigation—as well yet called Judge Simon Sobeloff, another which those principles may be given into the 1970s. In Wright v. City member of the panel of federal judges. the force of law [citation omitted].’”). Council, 407 U.S. 451 (1972), the City As Hoffman later recalled, ‘I told 32See, e.g., Comm. v. Doe, 278 Va. 223, Council of Emporia, represented by [Sobeloff] about Eggleston; and he 230, 682 S.E.2d 906, 909 (2009). soon-to-be federal judge Dortch said, ‘Walter, for God’s sake, hold that 33 Warriner, argued before the U.S. opinion. He’s absolutely right.’ Hoff- In 2013, the Virginia School Boards Supreme Court in defense of the man followed his colleague’s ad- Association statistics show that Virgin- operation of its schools post-Brown. vice.”). Both decisions were released ia has 21 appointed school boards and 111 elected school boards (report on 21 For more information on massive on January 19—Robert E. Lee’s birthday. Id. at 254. file with author). resistance, see the information from 34 the Virginia Historical Society, avail- 25 The Fourth Circuit reversed the 217 Va. at 581, 232 S.E.2d at 44. It able at District Court’s order to consolidate bears mentioning that the Attorney General in Arlington County appeared, http://www.vahistorical.org/collection different school divisions, which are s-and-resources/virginia-history- separate political subdivisions, as a in part, through the same legal counsel explorer/civil-rights-movement- fashioned remedy contrary to the that now is co-counsel prosecuting the virginia/massive, and the information fundamental principle of federalism OEI litigation just filed in the Norfolk from the University of Virginia Miller incorporated in the Tenth Amendment. City Circuit Court. Will the Court ask whether OEI, as the Supreme Court Center’s Digital Resources for United 26 Cf. Dennis v. Cnty. Sch. Bd., 582 F. asserted in Arlington County as to that States History, available at Supp. 2d 536 (W.D. Va. 1993) (the http://www.vcdh.virginia.edu/solguide controversy, raises a “singularly politi- court declined to validate the school cal question”? Maybe, as Chief Justice /VUS13/vus13a04.html. board’s constitutional arguments over 22 Eggleston phrased it in Griffin: “We Kellam involved an issue of sover- the teacher nonrenewal statute). shall see!” 27 eign immunity, not the constitutional 35 Under this decision, is the Court See Va. Code § 22.1-82 (“A school authority of a Virginia school board. suggesting the Dillon Rule trumps the See Kellam v. Sch. Bd., 202 Va. 252, board shall, prior to instituting an legal Virginia Constitution or controls its action or proceeding against any other 117 S.E.2d 96 (1960). interpretation. Or is the “indispensa- 23 governmental agency in Virginia or 204 Va. at 675, 133 S.E.2d at 582- ble” formulation yet some kind of expending any funds therfor, first 84. In Griffin v. Cnty. Sch. Bd., the Dillon Rule corollary? See generally secure the authorization of the govern- Supreme Court of Virginia concluded Schefer v. City Council, 279 Va. 588, ing body of the county, city or town that it was within the discretion of a 691 S.E.2d 778 (2010) (defining and constituting the school division . . . local board of supervisors to supply its applying the Dillon Rule). except as to legal actions or proceed- share of the necessary funds to operate 28 Justice Keenan is now a Fourth ings arising between the school board a local school. Circuit Court of Appeals judge. See and the governing body or bodies.”) 24 See, e.g., James v. Almond, 170 F. Judge Barbara Milano Keenan, U.S. 36 See Va. Code § 15.2-1248 (no claim Supp. 331 (E.D. Va. 1959). The three- CT. OF APPEALS FOR THE FOURTH CIR., may be brought against a county until it judge District Court decision, deliv- http://www.ca4.uscourts.gov/judges/ju is first presented to the county). See ered just after Harrison v. Day on the dges-of-the-court/judge-barbara- generally Jim H. Guynn, Jr. & Eliza- same date seemingly in coordination, milano-keenan. beth Dillon, Handbook of the Virginia held various Acts of Assembly viola- 29 See ALL STUDENTS, Local Government Law, LOCAL tive of the Fourteenth Amendment of http://www.allstudents.virginia.gov GOVERNMENT ATTORNEYS OF VIRGINIA, the U.S. Constitution). See generally /. INC., Ch. 20 (2013), available at RACE, REASON AND MASSIVE 30 http://www.coopercenter.org/lga/handb RESISTANCE: THE DIARY OF DAVID J. Under Virginia law, “[a] school ook. MAYS, 1954-1959 253 (James R. board shall, prior to instituting any 37 Sweeney ed. 2008) (“Early in Decem- legal action or proceeding against any For an excellent resource on Virginia ber 1958, Judge Walter Hoffman, who other governmental agency in Virginia school law across a wide variety of sat on the three-judge federal panel or expending any funds therefor, first issues, the Local Government Attor- that was in the process of deciding the secure the authorization of the govern- neys of Virginia, Inc.'s Handbook of constitutionality of the massive re- ing body.” Va. Code § 22.1-82. As Virginia Local Government Law should sistance legislation, had a chance legal and strategic and tactical consid- be consulted. See The Handbook of meeting on the golf course . . . with erations, this statutory mandate re- Virginia Local Government Law, the chief justice of the Virginia Su- quires consideration. LOCAL GOVERNMENT ATTORNEYS OF preme Court of Appeals. Without 31 See generally Cnty. Sch. Bd. v. VIRGINIA, INC., CH. 18 (2013), available revealing anything about the state Griffin, 204 Va. 650, 661 133 S.E.2d at court’s decision, Eggleston asked that 565, 573 (1963) (“A constitutional http://www.coopercenter.org/lga/handb the federal court delay its ruling until provision is not self-executing ‘when ook. the state court issued its decree on it merely indicates principles, without 38 See, e.g., Bristol Va. Sch. Bd. v. January 19. ‘I just think it would be laying down the rules by means of Quarles, 235 Va. 108, 366 S.E.2d 82 better if we spoke first,’ he told (1988); Cnty. Sch. Bd. v. Epperson, 246 Hoffman. Hoffman immediately

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Va. 214, 435 S.E.2d 647 (1993); Cnty. 43 A juvenile and domestic relations uniform local attendance policy and Sch. Bd. v. McConnell, 215 Va. 603, district court can misapprehend its regulations but, also by injunction, 212 S.E.2d 264 (1975) (decided pre- authority relative to the constitutional to utterly nullify the board’s rules grievance procedure); Lee-Warren v. authority of a school board, requiring and abridge its constitutional au- Sch. Bd., 241 Va. 442, 403 S.E.2d 691 action by the circuit court. See, e.g., thority and prerogatives under Arti- (1991); Sch. Bd. v. Giannoutsos, 238 Comm. v. J.B.J., 29 Va. Cir. 101, at *2 cle VIII, Section 7 of the Virginia Va. 144, 380 S.E.2d 647 (1989); (1992) (“Nowhere in Chapter 11 [of Constitution. Tazewell Cnty. Sch. Bd. v. Gillen- Title 16.1] of the Code is there any Amicus Curiae Brief of Virginia water, 241 Va. 166, 400 S.E.2d 199 implication that the Legislature in- (1991); Underwood v. Henry Cnty. tended to give the Juvenile and Do- School Boards Association at 1, Fair- Sch. Bd., 245 Va. 127, 427 S.E.2d 330 mestic Relations Court the same fax Cnty. Sch. Bd. v. Zurita, Order (Va. (1993). While the deference is note- authority over the School Board. To Sept. 28, 2010). The author was coun- worthy, another recent case begs the do so would violate the provisions of sel in the three cited Section 8.01-626 question why the court has jurisdiction Article VIII, Section 7, of the Virginia proceedings which resulted in dissolu- at all. In Sch. Bd. v. Westcott, 254 Va. Constitution, wherein the supervision tion of the circuit court injunctions. 218, 492 S.E.2d 146 (1997), the of schools is vested in local school Although the statute authorizes a single justice to act, the Virginia Supreme Virginia Supreme Court acknowl- boards.”). Court’s more recent internal practice edged the Article VIII, § 7 power of 44 Several such appellate injunction has been to have three justices review the school board. Using an arbitrary proceedings have been successful for and capricious standard, it upheld the the petition, as occurred in those school boards. E.g., Armentrout v. instances. board’s action to terminate the em- Kuczko, Order (Va. Oct. 9, 1992) 45 ployment of the security guard. It does (Carrico, C.J., Compton, Hassell, J.J.); In general, "We quote [opinions of not, however, explain why—even Frederick Cnty. Sch. Bd. v. Garris, the Attorney General] not as control- more fundamentally—the court has Order (Va. Feb. 21, 1992) (Carrico, ling authority, but rather as an aid in jurisdiction in the first instance in this C.J., Compton, Hassell, J.J.); Fairfax construing legislative intent.” Richard employment case, particularly given Cnty. Sch. Bd. v. Zurita, Case No. L. Deal & Assos., Inc. v. Comm., 224 the added statutory confirmation that 101810 (Va. Sept. 28, 2010) (Kinser Va. 618, 621, 229 S.E.2d 346, 348 “[t]he school board shall retain its & Millette, J.J., and Carrico, S.J.); (1983). The Arlington County case exclusive final authority over matters Fairfax Cnty. Sch. Bd. v. Zurita, Order references these opinions in a way that appears to be the Supreme Court taking concerning the employment and (Va. Ct. App. Oct. 8, 2010) supervision of its personnel, including (McClanahan, J.). In Zurita, the judicial notice of the Commonwealth’s dismissals, suspensions and placing on Virginia School Boards Association public policy. Comm. v. Cnty. Bd., 217 probation.” Va. Code § 22.1-313(A) (VSBA) remarkably intervened to file Va. 558, 568, 232 S.E.2d 30, 36 (1977). 46 (emphasis added). Given that the an amicus curiae brief, on behalf of all See, e.g., Williams v. Augusta Cnty. employee received an administrative of Virginia’s 134 school divisions, in Sch. Bd., 248 Va. 124, 445 S.E.2d 118 hearing, why would that not be the support of the Fairfax County School (1994). While not apparently acknowl- exclusive remedy, recognizing that the Board. Its brief helped advance the edged explicitly by the Attorney Gen- board is exercising its exclusive and successful cause of the Fairfax School eral, in another instance the Attorney final supervisory authority? See, e.g., Board before both the Virginia Su- General initially issued an erroneous School Board v. Giannoutsos, 238 Va. preme Court and the Virginia Court of opinion, failing to note a controlling 144, 380 S.E.2d 647 (1989). In em- Appeals. The VSBA contended that statute (Virginia Code Section 22.1- ployment disputes that involve a the Fairfax County Circuit Court had 57.3:1(G)) and, contrary to that statute, decision of the school board at the end acted unconstitutionally, in violation concluded that a school division em- of the grievance procedure, Giannout- of Article VIII, § 7, of the Virginia ployee could serve on the school board sos may be argued to foreclose any Constitution, arguing that: of which he is employed. Compare jurisdiction of the state courts to 2010 Op. Att’y Gen. (Nutter, July 30, undertake a review at all in such a In this appeal, a Virginia school board finds itself in the crossfire 2010) (“can serve”) with 2010 Op. matter. Att’y. Gen (Nutter, September 10, 39 between two parents warring over See, e.g., Howard v. Cnty. Sch. Bd., issues of custody and the school 2010) (“may not serve”). It took several contacts with the Attorney General’s 203 Va. 55, 122 S.E.2d 891 (1961). their children will attend. To get 40 See, e.g., Wood v. Henry Cnty. his way, one of the parents ulti- office to have it appreciate the error. In Public Schs., 255 Va. 85, 495 S.E.2d mately sought to have the circuit fairness to the Attorney General, 295 (1998). court’s contempt powers wielded however, this example also illustrates how some provisions are vexingly 41 See, e.g., Comm. v. Doe, 278 Va. against the school, based on a court order in a divorce case that planted and obscured in the too-often 223, 682 S.E.2d 906 (2009). dense forest of Title 22.1. 42 obviously did not involve the See generally Cupp v. Bd. of Super- school board. The parent invoked 47 E.g., 2013 WL 4039924 (Va. A.G. visors, 227 Va. 580, 318 S.E.2d 407 that same order to have the circuit Aug. 2, 2013) (school boards have the (1984). court act essentially as a super- authority to prohibit an employee from school board not only to override storing a lawfully possessed firearm in

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a vehicle on school property); 2011 Op. Va. Att’y Gen. 111. A judgment 49 See generally Sharon A. Pandak & WL 4429189 (Va. A.G. Jan. 21, 2011) on the strength of the analytical Brandi A. Law, The Handbook of (although a school board may consoli- reasoning of the Attorney General, Virginia Local Government Law, date certain functions with a city or given Virginia Supreme Court prece- LOCAL GOVERNMENT ATTORNEYS OF county, it may not abrogate its duties dent, in that opinion or in the cited, VIRGINIA, INC. Ch. 24, available at or compromise its independence). In earlier 1985 opinion is left to the http://www.coopercenter.org/lga/handb comparison, though, the Virginia reader. Or was it actually a “political ook. Attorney General has declined to view question” of the likes of Arlington 50 See generally Emerson H. Tiller & as unconstitutional the General As- County? Frank B. Cross, What Is Legal Doc- 48 sembly’s constraint on the timing of See Va. Sup. Ct. R. Pt. 6, § 2 R. trine?, 100 NW. U.L. REV. 517 (2006). the opening of local schools. See 2010 Prof. Conduct 1.7(a).

Virginia State Bar’s Local Government Fellowship: The Board of Governors is pleased to announce that Michael Kaestner has been selected to be the 2013 inaugural recipient of the Vir- ginia State Bar Local Government Fellowship. The VSB Local Government Fellowship was created in 2012 to attract promising future attorneys to the practice of local government law by providing a monetary award to an outstanding 1L or 2L Virginia law student working as a sum- mer intern in a local government attorney’s office in the Commonwealth. Mr. Kaestner is a sec- ond-year student at the William & Mary School of Law and interned this past summer at the Prince George County Attorney’s Office. Prior to law school, Mr. Kaestner worked for several years as a manager of legislation and policy at the Virginia Economic Development Partnership in Richmond, Virginia. An interview with Mr. Kaestner follows. More information about the VSB Local Government Fellowship is available at http://www.vsb.org/site/sections/localgovernment-news/vsb-local-government-fellowship.

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Virginia State Bar Local Government Law Section 2013-2014 Board of Governors

Eric Anthony Gregory Larry S. Spencer, Jr. Erin C. Ward King George County Attorney Town of Blacksburg Attorney Chairman Suite 200 300 S. Main Street Fairfax County Attorney’s Office 10459 Courthouse Drive P. O. Box 90003 12000 Government Center Pkwy King George, VA 22485 Blacksburg, VA 24062-9003 Suite 549 Fairfax, VA 22035-0064 Stephen A. MacIsaac Lesa J. Yeatts, Esq. Arlington County Attorney City of Hampton Attorney’s Office Bonnie M France 2100 Clarendon Blvd., Suite 403 22 Lincoln Street Vice Chairman Arlington, VA 22201 City Hall Building McGuireWoods LLP Hampton, VA 23669 One James Center Andrew R. McRoberts 901 E. Cary Street Sands Anderson PC Charles Eric Young Richmond, VA 23219-4030 Suite 2400, 1111 East Main Street Tazewell County Attorney P. O. Box 1998 108 E. Main Street Annie Kim Richmond, VA 23218-1998 Tazewell, VA 24651 Assistant Dean for Public Service Sharon E. Pandak Susan Warriner Custer University of Virginia School of Law Greehan, Taves, Pandak & Stoner Journal Editor 580 Massie Road 4004 Genesee Place, Suite 201 7618 Sweetbriar Road Charlottesville, VA 22903 Woodbridge, VA 22192 Richmond, VA 23229

Leo P. Rogers, Jr. Theresa B. Patrick Immediate Past Chairman Liaison James City County Attorney Virginia State Bar P.O. Box 8784 Suite 1500 Williamsburg, VA 23187-8784 707 East Main Street Richmond, VA 23219

STATEMENTS OR EXPRESSIONS OR OPINIONS APPEARING HEREIN ARE THOSE OF THE AUTHORS AND NOT NECESSARILY THOSE OF THE STATE BAR OR SECTION

3190 Peoples Drive The Virginia Harrisonburg, VA 22801 540-437-0019 Education Law Group℠ www.botkinrose.com of BotkinRose PLC

THE VIRGINIA EDUCATION LAW GROUP℠ serves school boards, colleges and universities, and education leaders, advising on the complex “business” of education in today’s litigious legal environment. With lawyers who do bond, tax and employee benefits work, the firm offers a full spectrum of legal services. In addition to the experience and ability to handle legal issues in employment (EEOC, FLSA, etc.), its lawyers cover special education, procurement, contracts, environmental, constitutional and other areas for any school board. We bring together our collective resources in The Virginia Education Law Group℠.

DOUGLAS GUYNN counsels numerous boards, educational organizations and other clients in education law, employment law, and target civil litigation. Doug has been counsel to boards across Virginia and has served on the State Council of Higher Education for Virginia. He also has represented the VSBA before the Virginia Supreme Court and has been one of its featured speakers on various legal issues. He has authored the leading piece on Virginia school board authority.

DANIEL LAURO provides a full range of legal finance and bond services that benefit school boards, education and local government clients, including school construction financings through the Virginia Public School Authority, various tax-exempt lease-purchase financings and USDA financings. Daniel is a co-author of the Virginia School Board Association's legal outline on education finance in the Budget Manual for Virginia School Boards.

MATTHEW W. LIGHT provides legal assistance to local government entities and private educational institutions. Matt’s experience includes providing counsel on issues related to proper Board powers and procedures, procurement and FOIA, as well as general real estate, land use and tax matters. He has also acted as principal counsel in a number of complex governmental and university real estate acquisition and financing transactions.

MARK BOTKIN AND RYAN WAID provide primary support in tax and employee benefits matters that seem to arise ever more frequently for education law clients. Mark and Ryan have substantial tax law practices for clients across Virginia and beyond. Mark handles specialized real estate issues, especially in a tax context, and Ryan takes the lead in the arcane area of employee benefits.

KEVIN ROSE is the go-to person for construction-related and environmental matters. In addition to his legal training and experience, Kevin is educated and trained as an engineer. Kevin has handled numerous construction law issues, routinely appears in both state and federal courts, and has handled complex arbitrations.

LINDSAY BRUBAKER works closely day-to-day, as needed, in service to education law clients, providing counsel on regulatory matters, student matters, employment matters, and in defending school boards and their senior management teams in claims involving alleged sexual misconduct and boundary violations by teachers or other employees in their relationship with students. Lindsay’s experience includes advising school boards and division-level and school-level leaders in navigating the complex issues and responsibilities that arise under Title IX, as enforced by the OCR. She recently led the successful ground-breaking litigation by a school board to vindicate its rights.

GENNIE KIRK, a recent graduate of James Madison University, joined the firm in September 2016. She works closely with Doug and Lindsay to provide paralegal support to the Group.

Other BotkinRose attorneys also contribute to the Group. Together as a team, they partner with school boards and other institutions and leaders in the important "business" of education.