Virginia Constitution, Which Went Into Effect in 1971

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Baliles Legacy Series Presentation: The Constitution of Virginia at 50: Looking Back and Looking Ahead - An In-Depth Legal Analysis of the Commonwealth’s Governing Document

Friday, January 22, 2021 | Virtual - Zoom

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A presentation of The Virginia Bar Association's Committee on Special Issues of National & State Importance Virginia’s 1902 Constitution: The era of disenfranchisement

By A.E. Dick Howard

Richmond Times-Dispatch, Dec 20, 2020

Editor’s note: Next year marks the 50th anniversary of the current Virginia Constitution, which went into effect in 1971. A.E. Dick Howard, the Warner-Booker Distinguished Professor of Law at University of Virginia School of Law, led the revision of the modern-day Constitution. It largely repudiated the white supremacy legacy of the 1902 state Constitution.

In 1968, Gov. Mills E. Godwin Jr. appointed a Commission on Constitutional Revision. Howard served as the commission’s executive director, and then was counsel to the General Assembly when it reviewed the commission’s report. The proposed constitution went before Virginia voters in 1970, and Howard directed the successful referendum campaign. He also is the author of the two-volume “Commentaries on the Constitution of Virginia.”

This is the first of a two-part series about the development of the 1971 Constitution. The next installment will be published on Sun., Dec. 27.

When the delegates to Virginia’s constitutional convention gathered in Richmond in 1901, hatred for everything that Reconstruction had accomplished permeated the debates.

As a price of readmission to the Union after the Civil War, the former Confederate states had been obliged to write new, progressive state constitutions. In Virginia, that was the 1870 Underwood Constitution (named for its president, John C. Underwood, a federal judge despised by conservative Virginians).

A delegate at the 1901-02 convention denounced the 1870 Constitution as “the blackest page in the history of this State.” Its provisions, he maintained, “have held in subjection...a race of men whose forebears fashioned this nation.”

The 1901-02 delegates knew what they wanted: white supremacy. As one delegate proclaimed, to great applause, “I want it distinctly understood that I am a white man and propose to represent white interests.” Another delegate was equally explicit: He sought “at any cost, to secure white supremacy” in Virginia and every one of its cities and counties. Being white was being destined to rule. “It is by way of intellectual superiority,” he said, “that the Anglo-Saxon claims the right of government.”

The 1870 Constitution had enfranchised former slaves and other Black Virginians. The delegates in 1901-02 were determined to undo that accomplishment. One delegate declared, “Thousands of people in the State would never have voted for the Convention had they not believed by doing so, the negro would be eliminated as an element in our state politics.” Another delegate agreed: “I assert that the horror of negro suffrage has brought shame upon the white people of Virginia.”

Taking broader aim, some delegates deplored giving the franchise to lower classes of people, including whites. One delegate spoke out against “hordes of ignorant and worthless men marching to the polls.” A colleague was of like mind: “I contend that the respectable element of a community has the right to vote.” He refused to “turn my people over to a rabble.”

What place did Blacks have in Virginia? On the land, of course. “There is but one spot in Virginia where the negro can make himself useful and not come into conflict with the superior race,” declared one delegate. “That spot is in the corn field and on the tobacco ground as an agricultural laborer.”

Some delegates looked back with nostalgia on the benign effects of slavery. As one declared, “When the restraining hand of the white race was taken from the slave, when he missed the intimate association between slave and master, he degenerated.”

History and theology were invoked to justify Black subjection. In his opening speech to the convention, the presiding officer declared that “ever since the dawn of history...the black man has occupied a position of inferiority.”

It was, many in the hall believed, God’s plan for the races. Virginians could not preserve their civilization, urged one delegate, if they ignored “this great Black problem which has dragged down everything it has touched since the curse of Ham was pronounced by the Almighty.”

Not only should Black Virginians not be entrusted with the ballot, many delegates thought education was wasted on Blacks. One delegate was categorical: “The Black man is absolutely incapable of cultivation or useful advancement.” A colleague painted a bleak picture of the evils of teaching Black children to read: “For every one that will read the Bible, there are ten who will read Jesse James, and Billie the Kid, and Uncle Tom’s Cabin.”

Higher education was even more inconceivable. “What is your educated negro to do in Virginia?’ a delegate asked. “Is he to practice law? Is he going to practice medicine?” Advanced education would “bring him into immediate conflict with the superior race.”

The men at the 1901-02 convention were there, if course, to write a constitution. They had ample precedents at hand. Reconstruction had come to an end in 1877 when the last federal troops left the South. “Redeemed” governments had then wrested control of Southern states’ governments from “carpetbaggers” who had been empowered by radical Republicans in Congress.

The Redeemers could not bring back slavery as such — the 13th Amendment stood in the way of that — but they could set out to restore white supremacy. Mississippi led the way. Its 1890 Constitution was followed by like constitutions in other Southern states, including Virginia. These constitutions used a variety of devices to achieve disenfranchisement of Blacks: the poll tax, literacy tests, understanding clauses and grandfather clauses.

But what of the United States Supreme Court? Surely it would not stand idle while the former Confederate states negated one of the prime accomplishments of the Reconstruction amendments to the Constitution? Well, it did.

In Williams vs. Mississippi (1898), the Supreme Court rejected a challenge to Mississippi’s 1890 Constitution. Justice Joseph McKenna, writing for a unanimous Court, ruled that Mississippi’s Constitution was neutral on its face; it did not matter that those who administered the state’s laws might use them to discriminate.

That decision gave a green light to the delegates in Richmond. Small wonder that a leading member of the 1901-02 convention was able to declare that the meeting’s “primary purpose” was “to eliminate every negro of whom we could be rid without running counter to the prohibition of the Federal Constitution.”

The convention made sure that the path to registration would not be easy. Property owners and those who had served in either the United States or Confederate army or navy (and their sons) were entitled to register to vote. Otherwise, an applicant must be able to read any section of the Constitution submitted to him by the registration officials and to give “a reasonable explanation” of that section. Given the various impediments (including the poll tax), a delegate at the convention predicted, with obvious confidence, that the obstacles “will be too great for the negro.”

That prediction proved accurate. In 1867, almost half the registered voters (more than 100,000) had been Black. After 1902, there were 21,000 — 4.7% of all registered voters. Poor whites were kept away from the polls as well. It was 1928 before as many Virginians voted as had voted in 1898, even though the state’s population had doubled and women had been admitted to the franchise.

Virginia lived under the shadow of the 1902 Constitution for the next half-century. The 1960s saw momentous changes, both because of federal mandates (one person, one vote; end of the poll tax; the Voting Rights Act of 1965) and within Virginia itself (demographic trends, rise of two-party politics).

In 1968, Gov. Mills E. Godwin Jr. appointed a commission to revise the commonwealth’s constitution. The new constitution took effect on July 1, 1971.

A.E. Dick Howard is the Warner-Booker Distinguished Professor of Law at University of Virginia School of Law and is an expert in the fields of constitutional law, comparative constitutionalism and the Supreme Court. Contact him at: [email protected]

The 1971 Virginia Constitution: Promoting the common benefit

By A.E. Dick Howard

Richmond Times-Dispatch, Dec 27, 2020

This is the second of a two-part series about the development of the 1971 Constitution. The previous installment was published on Sun., Dec. 20.

George Mason’s famous Declaration of Rights for Virginia (1776) highlights the idea of community. That document declares that government is “instituted for the common benefit, protection, and security of the people, nation, or community.”

But when the declaration turns to the question of who in that community should have the vote, it is more qualified. To have the right of suffrage, men must have “sufficient evidence of permanent common interest with, and attachment to, the community.” In Mason’s day, that meant property owners.

The declaration’s standard, turning on “permanent common interest” and “attachment,” was sufficiently open-ended to allow later generations to debate just how broad the franchise should be. In the early 19th century — the era of Jeffersonian and Jacksonian democracy — reformers, especially in the Piedmont and the Valley of Virginia, filed petition after petition asking for a convention to revise the 1776 Constitution. Finally, a convention was held in 1829-30, making only modest reforms. Then, in 1850- 51, another convention brought about essentially universal white male suffrage.

The Civil War and Reconstruction brought yet more voters to the rolls — former slaves and other Blacks who now would be enfranchised. But this was not to last. The progressive Constitution of 1870, which also created Virginia’s first statewide system of public education, was overturned by the constitutional convention of 1901-02.

For the first time since the founding era, the trajectory was not an enlarged electorate. Instead, the Constitution of 1902 was an instrument of disenfranchisement, both of blacks and poor whites.

A key question of constitutional design is the question of what is meant by the creation of a political community. Who belongs, who does not? Who counts, who does not?

Reformers like Thomas Jefferson, an outspoken critic of limiting the franchise to property holders, thought it inadmissible that men who had risked their lives for their country could not vote if they owned no property. Reformers after the Civil War wanted Black Virginians to have the full benefits of citizenship, including the franchise.

The question of who belongs and who does not is not limited to deciding who gets to vote. There are other clear signals as to who is on the outside. Thus the 1902 Constitution mandated that public schools must be segregated. Jim Crow laws made it even more clear who was a true member of the community and who was not. And so life continued in Virginia for the next half-century and more.

The 1960s were a time of upheaval. John F. Kennedy, Robert F. Kennedy and the Rev. Martin Luther King Jr. were assassinated. There were massive protests against the Vietnam War. Cities were in flame. Cries for social justice brought the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The U.S. Supreme Court decreed that legislative seats must be apportioned on the basis of population. The poll tax was declared unconstitutional.

In such an era, Virginia’s 1902 Constitution increasingly was a relic. In 1968, Gov. Mills E. Godwin Jr. appointed members of the Virginia Commission on Constitutional Revision. They were an uncommonly talented group of Virginians. They included Lewis F. Powell, Jr., soon to be a justice on the U.S. Supreme Court; Oliver W. Hill, Virginia’s leading civil rights attorney; former governor Colgate Darden; and Hardy C. Dillard, later to serve on the World Court at the Hague. To watch these men debate what a new constitution should be like was to see grand ideas of government and society meet practical issues of policy and implementation.

The commission handed its recommendations to the governor and General Assembly on Jan. 1, 1969. The legislators rose to the occasion. They accepted nearly all the commission’s recommendations. When they did not, there was usually measured judgment for taking a different course.

In 1970, a referendum was held. A privately funded group, Virginians for the Constitution, organized a campaign to educate the public on the proposed constitution. When the ballots were cast, 72% of the voters said “yes” to the constitution. It took effect on July 1, 1971.

The revisors’ idea of the political community was light years away from the notions that permeated the 1902 document. For the first time, the Constitution of Virginia includes a prohibition on governmental discrimination based on race, color, national origin or sex.

Where the old constitution had been interpreted to allow counties and cities to close their schools to avoid integration — Massive Resistance at work — the new Constitution mandates the General Assembly to provide a statewide system of public education for all school-age children. Further, the Constitution places an enforceable duty on localities to put up their share of school funding once the General Assembly has crafted a funding formula.

The revisors understood the link between education and civic virtue. Drawing on language from Jefferson’s “A Bill for the More General Diffusion of Knowledge,” education now takes its place in Virginia’s Bill of Rights alongside traditional rights such as expression and religion. The Constitution’s education article gives primacy to the Board of Education in fashioning standards of quality, subject to the ultimate authority of the General Assembly.

In 2021, 50 years will have passed since the present Constitution took effect. Does the Constitution continue to promote the “common benefit”? Does it strengthen the sense of an inclusive political community? What issues invite our attention?

The Commission on Constitutional Revision added a requirement that legislative districts be contiguous and compact. In cases brought since 1971, Virginia’s Supreme Court has been unduly deferential to the legislature in these cases, fearing, no doubt, to enter what U.S. Supreme Court Justice Felix Frankfurter once called a “political thicket.” In 2020, the voters resoundingly approved a constitutional amendment to create a bipartisan commission to draw district lines. The commission, made up of legislators and citizens, is a watered-down version of the original proposal, which would have created a citizens’ commission. We shall see whether the commission is able to take us beyond the evils of partisan gerrymandering.

Virginia has one of the country’s strictest constitutional barriers to restoring the vote to former felons. The Constitution requires that the governor act to restore the franchise to former offenders. The Supreme Court of Virginia has read the Constitution’s language narrowly, requiring the governor to act on individual cases rather than on former felons as a class. Having the right to vote is a signal aspect of any effort to bring former felons back into the community. Is it time to make the Constitution’s path to full citizenship easier?

The Commission on Constitutional Revision proposed to abandon Dillon’s Rule. That canon of construction dictates that local governments have only those powers expressly given them by the General Assembly. The General Assembly, however, decided that Dillon’s Rule ought to stay. In a commonwealth where government close to the people is thought to be a virtue, should we loosen the constitutional bond on local governments?

Any informed reader of this paper can no doubt think of other issues worth mulling. Whatever the specific issue, the 50th anniversary invites us to take the occasion to ponder what it is we expect the Constitution to be. Virginia’s Declaration of Rights reminds us that “no free government, nor the blessing of liberty, can be preserved to any people, but...by frequent recurrence to fundamental principles.”

We live in an age when liberal constitutional democracy seems to be under siege in so many countries. A state constitution is the place where a people write many of their hopes and aspirations. How can we employ the Constitution of Virginia to nurture self- government by a free people in a way that is just and inclusive?

From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia

Juliet Buesing Clark

107 Va. L. Rev. (forthcoming 2021)

Abstract:

This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity. In the years after Brown, Virginia dramatically resisted efforts to integrate. Then the state embraced a moderate stance on integration, as part of its 1971 constitutional revision, to end de jure segregation and provide a “quality” education for “all children.” Looking to new quality standards produced by a Board of educational experts, Virginia optimistically turned to the technocracy movement, hoping to take education out of politics. New aspirational language was meant to deepen the legislature’s commitment to public schools and repair Massive Resistance’s damage to public schools. Looking back 50 years later, however, it is clear that this constitutional revision, while successfully meeting its goals around Massive Resistance, did not address underlying problems it is often assumed to have solved, such as inadequate funding or persistent de facto segregation. Other states’ journeys battling the same issues have looked different, and these differences highlight some of the strengths and weaknesses of Virginia’s approach. This paper ultimately argues that the 1971 revision never intended to solve these problems, and thus, the work for educational advocates right now is not to come up with more clever litigation, but to convince Virginians to agree on a fairer school system—perhaps through a new constitutional revision. In the context of new public concern about racial justice following George Floyd’s death and the Coronavirus crisis, I argue that Virginia today may finally be ready to finish the work started in 1971.

1 Table of Contents

Introduction ...... 1 Part I. A Brief History of Education in Virginia under the 1902 Constitution ...... 4 A. After a slow Reconstruction-era start, public education in Virginia under the 1902 Constitution was explicitly segregated and often poorly funded...... 4 B. The 1902 constitution facilitated Massive Resistance by disenfranchising opponents and allowing a radical movement to form...... 6 C. Virginia courts interpreted the 1902 constitution to endorse pro-segregation school closures...... 7 D. The End of Massive Resistance accompanied a growing interest in technocracy and public education...... 9 Part II. The 1971 Constitutional Revision and Changes to the Education Article ...... 11 A. Much of the 1902 Educational Article remained...... 12 B. Symbolic changes, such as the repeal of mandated segregation and addition of new Bill of Rights language, may represent the most important revisions...... 13 C. The legislative commitment to education was repaired and strengthened...... 14 D. New “standards of quality” would be designed by the Board of Education...... 16 Part III. From 1971 to 2021: The long-term results of revision ...... 17 A. The revision symbolically and legally rejected Massive Resistance...... 17 B. The revision optimistically embraced technocratic ‘standards of quality’ drafted by policy experts, but today budgetary and political constraints remain...... 19 C. The race-blind attempt at educational quality for “all children” passed in 1971 failed to address one of the biggest obstacles to equal schools: integration...... 25 Part III. Comparing Virginia’s experience to other states: how does the battle for sustainable educational equity work elsewhere? ...... 33 A. New Jersey: An activist court, an understated constitution...... 33 B. Wyoming: Tiny rural state, or model for Virginia? ...... 36 C. Comparing Virginia...... 40 Part V. Addressing the remaining inequities in schools today: the power of a new constitutional conversation...... 42 A. Potential Elements of the Conversation ...... 45 Conclusion ...... 51

2 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Introduction

In the first years of Virginia’s existence, Thomas Jefferson proposed a radical idea:

widespread public education, for the purpose of preserving democracy.1 His vision is today enshrined in the Commonwealth’s Bill of Rights, which declares that “free government rests, as does all progress, upon the broadest possible diffusion of knowledge,” and the Commonwealth thus should give its people the opportunity to develop their talents through “an effective system of education throughout the Commonwealth.”2 He proposed a public education system for all,

funded by taxes, a revolutionary idea at the time.3

Virginia’s leaders did not adopt Jefferson’s plan for public education.4 In fact, it was not

until after the Civil War, at the behest of a compromise with Congress for readmission to the

Union5 (and, scholars argue, primarily a result of advocacy by ex-slaves6), that Virginia

reluctantly began to build a universal public education system.

By the middle of the twentieth century, public education had been quietly adopted as a

staple of Virginian life, but it was neither a priority nor a value statement—unequal, segregated,

and never particularly well-funded.7 Virginia’s most famous public education moment—its participation in “Massive Resistance” in the years following Brown v. Board of Education— instead showed the Commonwealth’s willingness to sacrifice its children’s education to hold

1 A.E. DICK HOWARD, II COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 879 (1974). 2 VA. CONST. art I, § 15 (1971). 3 HOWARD, supra note 1, at 880. 4 Id. 5 Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 STAN. L. REV. 735, 783 (2018). 6 JAMES D. ANDERSON, THE EDUCATION OF BLACKS IN THE SOUTH, 1860-1935 4–16 (1988). 7 See, e.g. Richard G. Salmon, The Evolution of Virginia Public School Finance: From the Beginnings to Today’s Difficulties, 36 J. EDU. FIN. 143, 146–48 (2010).

1 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

onto the racist ideals of its past.8 Perhaps no state was party to more high-profile segregation

litigation in those years than Virginia, and unfortunately on the wrong side of history.9

But in 1971, Virginia’s leaders finally sought to change this relationship to public

education, by enacting major constitutional changes to the Commonwealth’s education article.10

This note will analyze the work the 1971 revision has done in Virginia’s public grade schools

during the years since, from both a legal and policy perspective. The note ultimately concludes

that the results achieved—the primacy and complexity of the Standards of Quality in Virginia’s

public schools; the new balance of power between the Board of Education, the General

Assembly, and local school boards; and the eradication of de jure segregation while preserving

options for de facto segregation—were close to what the 1971 revisers intended. The revision

solidified a technocratic approach to educational inputs in the Commonwealth, and it ensured an

increased centralization of funding structures and decision-making that would reject any future

attempts at racial segregation through local school closures. Looking back on the era that saw

Virginia’s “Massive Resistance” swept away and a newfound optimism about effective, non-

partisan policymaking fall into place, I conclude that the revision of the Education Article was a

success of its time.

However, today Virginia’s schools face persistent problems of equity. Though on

average, Virginia’s public schools produce high quality results, that quality is not experienced

equally by all students. In fact, Virginia’s poor students receive significantly less funding than

their wealthier counterparts,11 despite having significantly more need, and they perform

8 See infra Part I. 9 See e.g. Brown v. Board of Education, 347 U.S. 483 (1954) (incorporating Davis v. Board of Education of Prince Edward County); Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964); Green v. County School Board of New Kent County, 391 U.S. 430 (1968), Richmond School Board v. Board of Educ. (Bradley I), 412 U.S. 92 (1973). 10 See infra Part II. 11 Bruce D. Baker, et al. Is School Funding Fair? A National Report Card 11 (7th ed. 2018).

2 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

considerably worse according to the National Assessment of Educational Progress (NAEP).12

Nor is segregation gone. Though de jure segregation and public-school defunding have been successfully eradicated, de facto segregation is now on the rise. The number of hyper-segregated,

highly impoverished schools has nearly doubled in Virginia since 2003.13

While many scholars and advocates argue that such inequities comprise state constitutional violations best fixed by a court, I conclude that this is simply not so in Virginia.

The 1971 revision of the Virginia Constitution was not meant to solve these problems.14 In fact,

Virginia’s voters have never had a state-wide discussion of educational equity and integration,

nor been forced to make a commitment to such values.

As our nation has been rocked by protests around racial injustice and ravaged by a new

pandemic that has wreaked havoc on communities of color in particular, issues of race and

inequity have been shoved to the forefront of public dialogue in a way few of us have before

confronted. The time is ripe for Virginia to finally finish the work begun fifty years ago. A new

constitutional amendment to Virginia’s education article could facilitate this conversation. In

1971, Virginia’s leaders wanted to make education a priority for the first time and decided to

take the first step away from active segregation. Today, it is time to reshape our education article

yet again, with a vision of equity and excellence that will finish the journey away from

segregation and finally step toward a shared, fair shot at the future for our children.

12 Nat’l Assessment of Ed. Progress (NAEP), Achievement Gaps Dashboard, THE NATION’S REPORT CARD, comparing Virginia scores for federally eligible students with non-eligible students, https://www.nationsreportcard.gov/dashboards/achievement_gaps.aspx (last accessed June 2, 2020). 13 Chris Duncombe and Michael Cassidy, Increasingly Separate and Unequal in U.S. and Virginia Schools, THE COMMONWEALTH INSTITUTE (2016). 14 In fact, it is not clear that education policy is designed to solve such problems by itself—a holistic approach that includes addressing income inequality, healthcare, and housing is likely needed. Such an argument, however, is outside the scope of this paper.

3 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Part I. A Brief History of Education in Virginia under the 1902 Constitution

The years leading up to the 1971 Constitutional Revision in Virginia saw tumultuous

political change throughout the country and the Commonwealth. The end of World War II

provided the impetus the United States needed to address racism and segregation, and with the

Brown v. Board rulings, the Civil Rights movement, and new federal legislative changes, the social reality of the country seemed to be rapidly changing. Though easily characterized as a response to those ongoing changes, Virginia’s 1971 constitutional revision—particularly the educational article’s amendment—was not merely a formal statement of the Commonwealth’s new values. It also put in place a new policy structure that had long-term empirical impacts on schools throughout the state.

A. After a slow Reconstruction-era start, public education in Virginia under the

1902 Constitution was explicitly segregated and often poorly funded.

Though Virginia first passed legislation creating public funds for education of the poor in

1810, it was not until 1870 that Virginia created a statewide public-school system.15 Like in many states, public education in Virginia is rooted—and always has been—in the state

constitution. Virginia was one of the last states to rejoin the union after the Civil War, and

Congress explicitly conditioned Virginia’s admission on providing “school rights and privileges”

in the state Constitution.16

The 1870 constitution was a Reconstruction-era document that espoused progressive

ideals of education through its “uniform system of public free schools.”17 It was primarily a structural document: it created a superintendent of public instruction position, provided for

15 HOWARD, supra note 1, at 880-81; Salmon, supra note 7, at 144-45. 16 Black, supra note 5, at 783. 17 HOWARD, supra note 1, at 881.

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taxation for public schools, and even set a timeline for the rollout of schools across “every

county” of Virginia in the next six years.18 Though the first Superintendent, Henry Ruffner,

struggled to obtain state funds for the public schools, he managed to convince the local school

leaders he had appointed to start their new public schools across Virginia based solely on the

hope of the new Constitutional tax.19 Perhaps miraculously, the system grew, with state

expenditures exceeding $1 million in 1900, and localities nearly matching that amount.20

In many ways, the 1902 Constitution built on this structure rather than rolling it back. Its primary structural change was to professionalize public school leadership by adding actual educators to the Board of Education.21 But the 1902 Constitution also constitutionalized a more

important change, mandating that “[w]hite and colored children shall not be taught in the same school.”22 This language would become an important target of the next constitutional revisers.

Virginia’s public education system slowly grew under the framework of the 1902

constitution, though it remained persistently underfunded, and of course, segregated.23 Following

other states, Virginia developed a “foundation” style funding scheme in the 1920s and slowly

increased its state contribution to public schools over the coming decades.24 Still, funding

inequities were common between districts of different wealth, and inequities were even worse

between the parallel black and white school systems.25 In many ways this struggle for equality of opportunity was a result of other elements of the 1902 state constitution—the restrictive provisions on voting.

18 Id. at 881-82. 19 Salmon, supra note 7, at 146. 20 Id. 21 HOWARD, supra note 1, at 882. 22 VA. CONST., art. IX, § 140 (1902). 23 Salmon, supra note 7, at 146-48 24 Id. 25 Id.

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B. The 1902 constitution facilitated Massive Resistance by disenfranchising

opponents and allowing a radical movement to form.

The 1902 version of the Virginia Constitution disenfranchised a huge proportion of the

populace. The document instituted a poll tax excluding a majority of the potential electorate from

the political process,26 as well as a literacy test that local government agents could use to

disenfranchise Virginians of color.27 Scholars estimate that only 11.5% of the voting age

electorate actually participated in elections—both primary and general—all the way through

World War II.28

This exclusion allowed the so-called “Byrd machine,” the Democratic political structure led by U.S. Senator Harry F. Byrd, Sr., to consolidate and maintain strict power over the state’s government.29 Though the party’s rhetoric emphasized local control and fiscal efficiency, its legacy today is primarily defined by its defense of white supremacy.30 In the years after Brown v.

Board of Education, the Byrd machine famously clung to segregation, choosing a disastrous set of policies that still have repercussions today.

First, Governor Thomas B. Stanley commissioned a group to study the impact of Brown on Virginia, and to consider how best to evade the decision’s holding.31 The resulting “Gray

Commission Report,” issued the following fall, included recommendations that “no child be

26 Douglas Smith, “When Reason Collides with Prejudice”: Armistead L. Boothe and the Politics of Desegregation in Virginia, 1948-1963, 102 VA. MAG. OF HIST. & BIOGRAPHY 5, 6 (1994); Va. Const., art. II (1902). 27 Id. 28 Smith, supra note 26, at 6. 29 Id. See also J. HARVIE WILKINSON, III, HARRY BYRD AND THE CHANGING FACE OF VIRGINIA POLITICS (1984). 30 See e.g., Richard F. Weingroff, Senator Harry Flood Byrd of Virginia—the Pay-As-You-Go Man, U.S. Department of Transportation Federal Highway Administration Highway History (2017), https://www.fhwa.dot.gov/infrastructure/byrd.cfm (describing Byrd’s gubernatorial platform as a plan “to institute the best methods of efficiency and economy in State affairs”); Virginia Museum of History and Culture, Massive Resistance (last accessed Sept. 1, 2020), https://www.virginiahistory.org/collections-and-resources/virginia-history- explorer/civil-rights-movement-virginia/massive (describing Byrd’s leadership of Massive Resistance). 31 J. Rupert Picott, The Status of Educational Desegregation in Virginia, 25 J. NEGRO EDUC. 345, 346-348 (1956).

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required to attend an integrated school” and that “local school boards be authorized to expend

funds designed for public school purposes” to send [white] children to [segregated] private

schools.32 This would soon morph into the even more radical policy of “Massive Resistance,” as

enshrined in the now infamous 1956 Southern Manifesto and the school-closing laws of the 1956

General Assembly session.33 Any school in Virginia that attempted to integrate would be closed, white students would be given public funds to attend segregated private schools, and a state-wide

Pupil Placement Board would take over school assignment, to preserve segregation.34 With the

help of the 1902 constitution, radical white supremacy took over Virginia’s schools.

C. Virginia courts interpreted the 1902 constitution to endorse pro-segregation

school closures.

When Virginia’s statewide school closing plan was overturned in 1959 as a violation of

the state constitution,35 it was only the first step in what became a decades-long fight over race, class, and public schools in Virginia. The court had not overruled the practice of allotting public funds for children to attend segregated private schools,36 and subsequent legislative changes

devolved much of the policymaking around such decisions to counties, foreshadowing local

fights to come.37 When counties were ordered to integrate their schools in 1959, Prince Edward

County took the unique step to not appropriate any money for public schools for the next five

years, closing the schools entirely.38 Instead, the county continued to offer tuition grants for

32 Id. 33 Charles H. Ford & Jeffrey L. Littlejohn, Reconstructing the Old Dominion: Lewis F. Powell, Stuart T. Saunders, and the Virginia Industrialization Group, 1958–65, 121 VA. MAG. OF HIST. & BIOGRAPHY 148 (2013). 34 Virginia Museum of History and Culture, supra note 30. 35 Harrison v. Day, 200 Va. 439 (1959). 36 Id. at 452–453. 37 Virginia Museum of History and Culture, The Closing of Prince Edward County Schools (last accessed Sept. 1, 2020), https://www.virginiahistory.org/collections-and-resources/virginia-history-explorer/civil-rights-movement- virginia/closing-prince. 38 Id. See also KRISTEN GREEN, SOMETHING MUST BE DONE ABOUT PRINCE EDWARD COUNTY (2015) (recounting the struggle for integration in Virginia).

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students to use at private schools.39 Only white students had access to such schools.40 The

Supreme Court would reject this practice in 1964 as a violation of the federal equal protection

clause,41 but first, under Virginia state law, the case followed a very different line of argument—

one that severely weakened the 1902 Virginia Constitution’s commitment to public education.

In litigating its practices, Prince Edward County hoped to validate its method of closing

its local school system as a way of resisting integration, perhaps making it easier for other

localities to do the same.42 The Court was willing to help. Judge Buchanan, joined by all but one

member of the Virginia Supreme Court, determined that both the laws and Constitution of

Virginia “leave to [localities] the determination of the number and character of the schools they

were willing to operate”—even if that number was zero.43

In turning to the Commonwealth’s obligations to provide an education if a locality did

not, the court found none. Judge Buchanan declined to order the General Assembly to follow the

apparent mandate of Section 129 (“The General Assembly shall establish and maintain an

efficient system of public free schools throughout the state”). Instead, the court held that the

definition of “efficient system” did not require the operation of any schools, in fact. The Court

decided that Section 129 “leaves to the judgment of the General Assembly the manner and means of its execution implemented.”44 In other words, Section 129’s supposed mandate was

39 Virginia Museum of History and Culture, supra note 37. See also Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 231 (1964) (explaining that this policy existed “for one reason, and one reason only: to ensure…that white and colored children in Prince Edward County would not, under any circumstances, go to the same school”). 40 Id. 41 Id. Note that this litigation is actually an extension of the Brown v. Board litigation from Prince Edward County. Interestingly, the equality at issue was not equal treatment of races but equal treatment of students in different counties in Virginia. The court, however, also saw the practice as a thinly veiled attempt at continuing the segregation outlawed by Brown. 42 School Board v. Griffin, 204 Va. 650 (Va. 1963). 43 Id. at 668. 44 Id. at 660.

8 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

unenforceable.45 The result in Virginia—even though the case was later overturned on federal

grounds—was the evisceration of Section 129’s power to ensure public education.46 As

interpreted by the courts, the old language of the 1902 Constitution of Virginia specifically

allowed efforts to defund, close, and deny integrated schools to students.

D. The End of Massive Resistance accompanied a growing interest in technocracy

and public education.

Massive Resistance eventually fell apart, less because of changing opinions on race than

because increasing numbers of middle-class whites began to realize the economic cost of an

unstable school system and advocate for the restoration of public schools.47 Additionally, three

major changes in the voting electorate took hold in the 1960s, ending the radical Democratic grip

on Virginia and opening the way for a more moderate approach to integration. First, the Supreme

Court invalidated Virginia’s poll tax, a decision that greatly expanded the electorate of Virginia

to include formerly disenfranchised voters, many of whom opposed the Byrd Machine and would

eventually vote for more moderate policies.48 Second, Congress passed the Voting Rights Act of

1965, which helped diversify Virginia’s electorate and provide broader access to the voting

45 “It is for the General Assembly first to determine whether the failure of a locality to cooperate and assume its responsibility renders the system inefficient. It doubtless has the power to shape its appropriations for public schools under Sec. 135 of the Constitution to correct an inefficiency in its established system, but that is in the area of legislative discretion, not in itself a constitutional requirement. The question of the efficiency of the system and whether it meets the constitutional requirement of Sec. 129 becomes a matter of law only if it clearly appears that the system has broken down and adherence to it amounts to a disregard of constitutional requirements.” Id. at 667. 46 Hullihen W. Moore, In Aid of Public Education: An Analysis of the Education Article of the Virginia Constitution of 1971, 5 UNIV. RICH. L. REV. 263, 276-277 (1971). 47 See infra note 33; James H. Hershman, Jr. Massive Resistance Meets Its Match: The Emergence of a Pro-Public School Majority in THE MODERATES’ DILEMMA: MASSIVE RESISTANCE TO SCHOOL DESEGREGATION IN VIRGINIA 104–133 (1998). 48 The twenty-fourth amendment to the U.S. constitution passed Congress in 1962 and was ratified in 1964. Virginia still tried to keep a form of poll tax in place, but was sharply admonished by the Supreme Court for doing so in Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966).

9 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

franchise beyond the Byrd machine’s base.49 Finally, the Supreme Court decision in Baker v.

Carr (and ensuing cases) required state legislatures to apportion districts fairly: one person, one vote.50 This new districting policy, combined with urbanization, slowly pushed the Byrd

organization—which relied on rural elites—out of power. By 1968, the long-dominant Byrd

faction had “disintegrated,” making way for a new era of Virginia governance by more moderate

leaders of both parties.51 This developed alongside increasing interest in public education, as the

General Assembly made historic investments in school buildings and higher education.52 It was the perfect time for a constitutional revision.

49 See, e.g., Markus Schmidt, The Voting Rights Act of 1965- How America Did Overcome, RICHMOND TIMES- DISPATCH (Aug. 1, 2015), https://richmond.com/news/local/government-politics/the-voting-rights-act-of-1965--- how-america-did-overcome/article_7d47ec7d-bf98-5014-8e25-5c72b2617a39.html 50 Baker v. Carr held that federal courts could review state redistricting choices, paving the way for Reynolds v. Sims, the case requiring state legislature apportionment to be roughly equal. Baker, 369 U.S. 186 (1962); Reynolds, 377 U.S. 533 (1964). See also, James R. Sweeney, Southern Strategies: The 1970 Election for the United States Senate in Virginia, 106 VA. MAG. OF HIST. & BIOGRAPHY 165, 166 (1998). 51 James R. Sweeney, supra note 49, at 165. 52 M. Caldwell Butler, A Republican Looks at the 1968 General Assembly, 45 UNIV. OF VA. NEWS LETTER 1 (Sept. 15, 1968).

10 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Part II. The 1971 Constitutional Revision and Changes to the Education Article

The Virginia constitution’s amendment process is not simple. Each change must be

approved in three separate votes: twice by the General Assembly during two separate sessions

that have been separated by a delegate election, and then once by the populace in a statewide

referendum.53 Thus, the process of approval takes several years, not to mention the time required

for research and drafting.

The 1971 constitutional revision was first initiated by Governor Mills Godwin in 1968.54

An appointed commission, approved by the General Assembly and staffed with researchers,

spent much of that year developing proposals that were ultimately handed off to the General

Assembly in 1969.55 In a special session, the General Assembly adopted many of those

recommendations and reworked others.56 Following a delegate election that fall, the General

Assembly voted again in 1970,57 ultimately passing the majority of recommendations on to

voters. Four main amendment questions would go to referendum that fall.58

Commentators have noted that the amendment process in Virginia is as much a political

one as a legal one. Professor A.E. Dick Howard, the executive director of the revision

commission, describes the work he did to gather public support as similar to any other political

campaign. Not only did the campaign committee he led seek to build general “awareness that

there was in fact a revision underway”59 but also pushed a slogan: “vote yes” in order to “[b]ring

53 A.E. Dick Howard, Adopting a New Constitution: Lessons from Virginia, 1 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REFORM 77 (Eds. G. Alan Tarr & Robert F. Williams 2005). 54 Id. at 74. 55 Id. at 75. 56 Id. at 76–77. 57 Id. at 77. 58 Id. 59 Id. at 82.

11 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

government closer to the people.”60 The activities were similar too: seeking endorsements,

building talking points, establishing field offices, navigating press and media, printing brochures

and other materials, purchasing advertising space, fundraising, and even conducting polls.61 And

like any other political campaign, this work made a difference. Ultimately, the four proposals

were adopted, several by an overwhelming margin: the main body of the Constitution was

approved by 72% of voters—a real mandate.62

A. Much of the 1902 Educational Article remained.

The drafters of the new Constitution preserved much of the structure of public education

in Virginia. They rearranged the educational provisions from 1902 in a more logical way, and

they modernized the language, but plenty of content remained the same. For example, they

maintained the constitutional status of the Board of Education, as well as its primary

responsibilities, though its leadership provisions were simplified.63 They also maintained

provisions on free textbooks for the poor,64 the position of Superintendent of Public

Instruction,65 and the Literary Fund.66 Additionally, the revised language simplified requirements of local school governance, partly in order to improve mechanics of the district consolidation

process (an important consideration at the time, as small districts were seen as inefficient67).68

60 Id. at 83. 61 Id. at 78–83. 62 Id. at 85. 63 Compare VA. CONST. § 130 and 132 (1902) with VA. CONST. art VIII, § 4 and 5 (1971) 64 Compare VA. CONST. § 139 (1902) with VA. CONST. art VIII, § 3 (1971). 65 Compare VA. CONST. § 131 (1902) with VA. CONST. art VIII, § 6 (1971). 66 Compare VA. CONST. § 134 and 135 (1902) with VA. CONST. art. VIII, § 8 (1971). 67 REPORT OF THE SCHOOL DIVISION CRITERIA STUDY COMMISSION TO THE GOVERNOR AND THE GENERAL ASSEMBLY OF VIRGINIA, Senate Doc. 5 (1972) 7. This focus on district size and efficiency was a reflection of the technocratic movement of the time. 68 Compare VA. CONST. § 133 and 136 (1902) with VA. CONST., art VIII, § 7 (1971). While district consolidation was a controversial issue on the subject of integration in many ways, the provision ultimately at issue here was only technical—solving the problem of multiple school boards in one county. The originally proposed Section 5(a), unrelated, suggested that the Board have sole power to draw division lines, excluding the General Assembly from the consolidation process. As ultimately passed, the General Assembly sets limits on this power.

12 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

B. Symbolic changes, such as the repeal of mandated segregation and addition of

new Bill of Rights language, may represent the most important revisions.

Arguably the most salient change was the repeal of the infamous Section 140, finally

taking mandated school segregation out of the Constitution of Virginia. Though it had no legal

power at the time of the revision, its repeal was crucial to the revisers use of symbolic language

to convey new Virginia values. The revisers, however, focused little on this provision in their

commentary. While they may have been concerned about segregation’s impact on quality

schools for all children (for example, they noted that “consolidation of school divisions” should

be placed “in the hands of a body that is somewhat insulated from the political pressures”

produced by such decisions69), their bigger concern was repairing the public system more generally. This focus was likely a wise choice, as it echoed the concerns of moderate middle-

class parents who had rallied against Massive Resistance in 1959 to stop school closings.70 To

the Commission, Virginia’s “commitment to public education was shaken,” and “the importance

of constitutional protections for public schools” had become now apparent.71 It would be this

careful choice of language that would help the ultimate constitutional revision pass.

Additionally, the revisers added language from Jefferson’s Bill for the Diffusion of

Knowledge to Virginia’s Bill of Rights, for the first time incorporating education into that article

of the Constitution. Though this language has since been interpreted as merely ‘aspirational,’72 it

nonetheless highlights the commonwealth’s values regarding public education. The Committee on Constitutional Revision noted that “[p]lacing such language in the Bill of Rights signalizes

69 COMMISSION ON CONSTITUTIONAL REVISION, CONSTITUTION OF VIRGINIA: REPORT OF THE COMMISSION ON CONSTITUTIONAL REVISION 256–57 (January 1, 1969). 70 Hershman, supra note 47, at 104. 71 COMMISSION ON CONSTITUTIONAL REVISION, supra note 68, at 254. 72 Scott v. Commonwealth, 247 Va. 379 (Va. 1994).

13 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

the relation of an educated citizenry to other fundamental values and underscores the thrust of

the revised Education article.”73 These combined symbolic additions were meant to highlight the

new importance of education to Virginia and to buttress the state’s commitment—even if only

aspirational—to quality education for all children.

C. The legislative commitment to education was repaired and strengthened.

Section 1—the new version of the language litigated by Griffin—now stated both “a duty and a goal” for the General Assembly.74 Where the previous Constitution had required the legislature to establish an “efficient system” of schools “throughout the state,” the new provision was more broadly applicable and specifically worded, requiring a “system of free public elementary and secondary schools for all children of school age” throughout the

Commonwealth.75 Though the provision did require “all children” to have access to education, an important choice of language in the new era of integration, it left out express words of equality or integration.76 Notably, the language seems to imply an individual right, where the

previous document focused more on a state obligation.

The second clause of the section was merely exhortatory, describing that the General

Assembly shall “seek to ensure” that “an educational program of high quality is established and continually maintained.”77 As a result, there was no constitutionally articulated standard for that system of education, “efficient” or otherwise. This choice of language was not quite true to the

initial recommendation of the advisers, who had suggested a more enforceable “to ensure”

73 COMMISSION ON CONSTITUTIONAL REVISION, supra note 68, at 99. 74 A.E. DICK HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA II 896 (1974) 75 VA. CONST. art VIII, § 1 (1971). 76 Id. Note that the Commission did not discuss this choice directly in their commentary. COMMISSION ON CONSTITUTIONAL REVISION, supra note 68, at 254-256. 77 Id.

14 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

instead of “seek to ensure.”78 But it was an intentional choice of the General Assembly and

Governor, who wanted to shy away from potential litigation. At the time, school funding

litigation around the country was starting to gain momentum—often based on state constitutional

clauses with similar language. In fact, Virginia had already seen its first, albeit unsuccessful,

federal school funding case: Burruss v. Wilkerson.79 Both the Governor and General Assembly

were uncomfortable with courts being arbiters of what “quality” might mean under the new

constitution, worried that such “subjective” language might invite lawsuits that give the court the

power to “take away future General Assemblies’ right to determine what is high quality.”80

Still, Section 1 signified a valuable shift in the General Assembly’s commitment to public

schools. The mandate for schools for “all children”, instead of an “efficient system,” repudiated the Court’s holding in Griffin and renewed the General Assembly’s commitment to education.

The language would definitively prevent future attempts at Massive Resistance-style shutdowns, though it would not open the floodgates to equity litigation either.

In addition to these changes, the revisers strengthened the provision on compulsory education in Section 3.81 The prior compulsory education provision had explicitly left enactment

to the “discretion” of the General Assembly, and by 1959 was no longer truly in force, as part of

Massive Resistance efforts.82 Though the new provision has been criticized as unenforceable,83 its mandatory language represents a further rejection of Massive Resistance and repair of its harms.

78 Id. 79 310 F. Supp. 572 (W.D. Va. 1969). 80 HOWARD, supra note 24, at 895-96. 81 Compare VA. CONST. § 138 (1901) with VA. CONST. art VIII, § 3 (1971). In 1971, the drafters included that the “appropriate age” of compulsory education was “to be determined by law.” 82 Moore, supra note 46, at 278–79. 83 Id.

15 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

D. New “standards of quality” would be designed by the Board of Education.

Section 2 filled in some of the enforcement power lacking in Sections 1 and 3, because it

required the Board of Education to prescribe “standards of quality,” presumably to ensure a

certain adequacy of education across the state. The General Assembly would have the power to

revise these standards, then would have both the obligation to determine the needed funds for the

standards and the power to allocate those costs between localities and the state. Localities would

not be allowed to opt out of funding their schools—the new provision was self-enforcing.

Indeed, if the “all children” language of Section 1 was not clear, the language mandating

localities pay for their schools made it so. The General Assembly’s new power to dictate funding

distribution reflected a change in the balance-of-power: the increased centralization of decision-

making at the state level.

The language of “standards of quality” in Section 2 reflected an important movement of

the twentieth century: an optimistic embrace of the idea that the future form of government was

not going to be a partisan one, but rather a government for the people by the policy experts—the

technocrats.84 The Board’s constitutional status as an expert body of education policy advisors

reflects the vision of the technocrat movement. Indeed, the complexity of the standards

themselves (which today run more than fourteen-thousand words85), demonstrates the prevalence

of technocratic theory in the field of education. Of all the education provisions revised, this

proved to have the most significant long-term policy impacts on the ground.

84 For a literature review of technocracy that highlights the widespread optimism in the 1960s and 70s that “technocracy appeared to be a feasible future form of government,” see Emily Lindstam, Support for Technocratic Decision-Making in the OECD Countries: Attitudes toward Apolitical Politics (2014) at 5-6. 85 The standards are currently found in the Code of Virginia, §§ 22.1-253.13:1 through 22.1-253.13:10.

16 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Part III. From 1971 to 2021: The long-term results of revision

Looking back, the 1971 revision of the Virginia Constitution’s Education Article had two

primary goals, one retrospective and one prospective. The retrospective goal was to definitively

reject Massive Resistance. Because the old Constitution had been used to support the movement

and had been given a segregationist gloss, the revisers knew they would need to change much of

the education article’s language in order to achieve their goal of an education article that

emphasized quality for “all.”86

Prospectively, Virginia’s leaders embraced the optimism of the new American

technocracy movement:87 they intended to take education policy out of politics and put it into the hands of expert administrators, who could improve the quality of the service being offered.

Where the Virginia public-school system in previous decades had been often inconsistent, underfunded, and subject to great local variability, the new Constitution encouraged increased professionalism in the system, implied by its stated vision of “standards” and “quality.”88 It

allowed for greater centralization of power over both funding and standards, which would lead to

a decrease in variability, and hoped to put more power in the Board of Education than the

General Assembly, to insulate hard decisions from politics.

A. The revision symbolically and legally rejected Massive Resistance.

The revisers’ immediate retrospective goal was to definitively reject the Massive

Resistance movement through a new statement of constitutional values. This included deleting language that mandated school segregation and adding new language to the Bill of Rights, as

86 It is important to clarify that this paper speaks of retrospectively rejecting Massive Resistance as a different object than prospectively achieving integration. Modern readers may struggle to differentiate the two, seeing all forms of segregation as equally bad. However, to a 1971 reviser, spurning Massive Resistance was a very different political choice than embracing racial integration. 87 See infra note 28 and accompanying text. 88 VA. CONST., art VIII, § 2 (1971).

17 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021) well as repairing the legal damage Massive Resistance had done to the prior constitution by replacing certain provisions.

True to the revisers’ intent, this goal was successful. The combined removal of the old

§ 140 and addition of a new mandate requiring localities to share funding means that since 1971, no school district has been shut down in protest of integration, and all school districts have received both state and local funding every year. De jure segregation, as understood by 1971 revisers, is a thing of the past, and the public schools are far more stable than they were in the

1950s.89

However, the goal of the 1971 revision was not to achieve equality, successfully integrate schools, or even to embrace the holding of Brown. Rather, the goal is much better perceived as a shift to the American suburban moderate values of compliance and redirection. Rather than actively pursue integration or racial equality, school systems all over the country redirected their focus to the pursuit of a quality education system as a whole, but particularly for the middle class. As Professor Jim Ryan puts it in his book on Virginia schools, education policy in the years since Brown, and particularly from the 1970s, has reflected one primary value: “the sanctity of suburban schools.”90

In many ways, the goal of the 1971 revision centered more on Virginia’s national economic reputation and an outward statement of values than on any practical attempt at justice or equality for poor black students. Journalistic coverage of the potential impacts of Massive

Resistance at the time highlighted the very real possibility that without strong public schools— segregated or not—business leaders would be paying higher taxes, the state would lose lucrative

89 See, e.g. JAMES E. RYAN, FIVE MILES AWAY, A WORLD APART: ONE CITY, TWO SCHOOLS, AND THE STORY OF EDUCATIONAL OPPORTUNITY IN MODERN 1-8 (2010). 90 Id. at 13.

18 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021) federal contracts, and many municipalities would fall into budget deficits.91 Facing the economic dangers of a dysfunctional public-school system, elite power-brokers found themselves in a moderate political position, attempting to end Massive Resistance.92 Many middle-class parents joined them, thinking that integrated public schools weren’t nearly as bad as no public schools, even if they preferred little racial integration and almost no socioeconomic integration.93

Of course, the changes in 1971 still mattered. For both white business elites, middle-class parents, and Black equality advocates, the new constitutional revision represented an exciting new statement of values from which the state’s new education policy choices could be made.

Segregation would no longer have constitutional status. The state’s leaders had symbolically rejected it, for the first time in Virginia’s long history. Education would be provided for “all children,” a commitment that again, diverged significantly from Virginia’s slow start to universal public education or its holding in Griffin. And the Virginia Constitution—now repaired—placed education high on Virginia’s priority list.

B. The revision optimistically embraced technocratic ‘standards of quality’ drafted

by policy experts, but today budgetary and political constraints remain.

The primary prospective goal of the 1971 constitutional revisers was to improve the quality of Virginia schools. They did this in a unique way, mandating a process by which the

Board of Education, an apolitical group of policymakers, would draft standards of quality that

91 Virginia Magazine highlighted the sudden threat the public felt (perhaps imagined) of “increasing budget deficits, higher local taxes, and the withdrawal of government spending streams that had lifted so many parts of the Old Dominion from structural underemployment,” including a concern that the federal government would withdraw its Naval Base and other investments from the state. Business Week predicted a massive rise in local property taxes, and Dr. Loren A. Thompson called massive resistance an “Education Crisis” that was “the main reason that Virginia was falling behind other states in attracting new industries and businesses.” In other words, negative press coverage about the state predicted economic harm to white elites, a prospect moderates wanted to avoid. Ford & Littlejohn, supra note 33, at 149-51. 92 Id. 93 Hershman, supra note 47, at 104.

19 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

were then submitted to the General Assembly for revision, approval, and funding. By mandating

a specific process, the revisers hoped to improve funding for public education by putting it

higher on the legislature’s priority list, and to improve the quality of services by delegating

standard-drafting and general public-school supervision to a non-political body of experts. In actuality, Virginia’s schools are still overwhelmingly controlled by the General Assembly. The

General Assembly revises the standards of quality and draws up the budget, allocating funding requirements to localities and placing mandates on the Board. This power is particularly weighty in Virginia, which has a non-activist court culture.

i. Enthusiasm about the new ‘standards of quality’ rose and fell in the years following constitutional passage.

The Standards of Quality generated plenty of excitement at the time of their initial drafting. An Attorney General’s opinion from 1973 optimistically wrote that once the General

Assembly had calculated the costs of the Standards, “the General Assembly, if it is to comply with the mandate of the Constitution, should take into account …actual costs and should apportion the costs on an equitable basis …[to] ensure that those localities lacking sufficient resources to enable them to meet the costs of the Standards will receive such supplements from the state as are necessary to offer educational programs of the prescribed quality.”94

However, during the economic downturn of the mid-1970s, the attorney general’s office

backed off from this strong stance on “actual costs” and “equitable” provision of funds,

conceding that the Governor may order necessary funding cuts without other legislative

approval, which may pull funding from the standards, because the constitution only requires that

the General Assembly “’seek’ to establish and maintain a quality program.”95 Similarly, as the

94 OPS. ATTY. GEN. VA. 1972-73, at 351-352. 95 OPS. ATTY. GEN. VA. 1975-76, at 312-13.

20 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

new trend of school finance litigation began to play out in nearby states, the Attorney General

was reluctant to find fault with Virginia’s funding formula.96 Since the formula was “realistic in

relation” to actual educational costs in the Commonwealth and “rationally” designed to establish

an educational system, the funding system complied with both Virginia and federal

constitutions.97

ii. The Court has been deferential on school funding and quality.

Virginia’s courts have also generally perceived it beyond the scope of their role to question the General Assembly’s policy choices or criticize budgets. 98 This deference was most

recently visible in Scott v. Commonwealth, a 1994 case in which a number of students and

districts challenged Virginia’s state-wide school funding scheme as unequal under the state

constitution.99 The facts of the case were shocking: the court found that some in districts,

combined state and local spending amounted to 2.5 times what it was in others.100 In some

divisions, teacher salaries were nearly 40% higher than in others, and in the wealthiest districts,

spending on instructional materials came to over ten times higher than in the poorest districts.101

Nonetheless, after declaring that it was using a strict scrutiny standard, the Virginia Supreme

Court concluded that “nowhere does the [Virginia] Constitution require equal, or substantially

equal, funding or programs among and within the Commonwealth's school divisions.”102 Thus,

96 OPS. ATTY. GEN. VA. 1980-81, at 79-85. 97 Id. 98 Acts of the Virginia legislature are granted a “presumption of constitutional validity.” Sch. Bd. v. Parham, 218 Va. 950, 956 (1978). For the court to declare a statute unconstitutional requires a clear violation. A mere “shadow [of a doubt about constitutionality] is not enough.” Lipscomb v. Nuckols, 161 Va. 936, 945 (1934). 99 Scott v. Commonwealth, 443 S.E.2d 138 (Va. 1994). 100 Id. at 140. 101 Id. 102 Id. at 142. Note that Scott did leave open the possibility of an adequacy case; the Court expressed that students might have an individual right to a certain level of education. Id. at 142 (“[T]he students do not contend that the manner of funding prevents their schools from meeting the standards of quality.”).

21 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

the court declined to review the equality of the General Assembly’s funding scheme, leaving

accountability for complex funding up to voters alone.

iii. The involvement of the Board of Education has varied over time.

As the Commonwealth got further in time from the date of constitutional revision,

excitement about the standards waned, and the commitment to expert—rather than political—

school leadership began to decline. In the first several years after the new Constitution’s passage,

the Board of Education had issued the standards of quality directly in their annual report during

odd-numbered years, a process described in the Code of Virginia § 22-19.1 (1973). The General

Assembly then accepted those standards, revised them, and passed the revised standards as

uncodified acts in force for the two years of the budget biennium.103 In 1984, the General

Assembly codified the standards for the first time.104 In response, the Board’s involvement in

rewriting the standards appears to have declined in the 1980s and 1990s. In 2002, members of

the Joint Legislative and Audit Review Commission lamented that the standards had hardly

changed in decades.105 Perhaps in an effort to mandate greater attention by the Board, the

legislature then enacted a new process, requiring the Board to make recommendations every two

years to the General Assembly.106 The dynamic created by this statute seems to have had the

opposite effect, relegating the Board to more of a position of ‘recommender,’ though the current

Board has sought to reverse the trend.107 Since 2002, the Board has virtually dropped off the

radar of Virginia legal scholars. Prior to the Attorney General opinion addressed to Delegate

103 See, e.g., Va. 1972 Acts of Assembly, Chapter 732 [H 845]. 104 See Va. 1984 Acts of Assembly, Chapter 713 [H 561] and Chapter 735 [S 426]. 105 JOINT LEGISLATIVE AUDIT AND REVIEW COMMISSION OF THE VIRGINIA GENERAL ASSEMBLY, REVIEW OF ELEMENTARY AND SECONDARY SCHOOL FUNDING 27. Accessed at: http://jlarc.virginia.gov/pdfs/reports/Rpt277.pdf 106 VA. CODE ANN. § 22.1-18.01. 107 See Virginia Board of Education, October 2019 Meeting Update (2019), at 3, accessed at: https://www.vsba.org/images/uploads/October_2019_Meeting_Report.pdf.

22 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Stanley in January 2019, the standards of quality had not been mentioned in a Court opinion or

an Attorney General report in nineteen years.108

However, the Board today is not powerless. For example, much of the Board’s energy in

the last twenty years has gone into assessment and accreditation, state accountability structures

that can have wide ranging impacts from improving schools to exacerbating segregation.109

Additionally, the Board can leverage its platform in service of certain policy positions that might

not otherwise have political support. In 2019, for example, the Board drafted and passed a new

set of Standards of Quality, pushing hard for significantly more funding for disadvantaged

children.110 The media coverage of the vote emphasized the huge financial ask, nearly a billion

dollars.111 While the Board’s request was ultimately watered down in part by budgetary

haggling, the General Assembly did approve a significant increase in equity funding as a result

of the Board’s ask.112 In other words, though the Board has not pulled education out of politics,

the Board can use its political role to help make schools a priority.

iii. Ultimately, the standards have continually struggled with inadequate funding.

108 See OPS. ATTY. GEN. 2019. Opinion to the Honorable William M. Stanley (January 4, 2019). Accessed at: https://www.oag.state.va.us/files/Opinions/2019/18-046-Opinion-to-Senator-Stanley-Issued.pdf; 2002 REP. OF THE ATT’Y. GEN. 50. 109 Justin Mattingly, Schools Across Virginia, Richmond Region, Fare Better Under New Accreditation Standards, RICHMOND TIMES DISPATCH (Sep. 27, 2018), https://www.richmond.com/news/local/education/schools-across- virginia-richmond-region-fare-better-under-new-accreditation/article_ecaddfcd-9a08-534d-960f-9ab5266fc3cb.html (demonstrating the Board’s effort to use data to evaluate schools more accurately); VIRGINIA BOARD OF EDUCATION COMPREHENSIVE PLAN 2018-2023 (Nov. 16, 2017), https://www.doe.virginia.gov/boe/plan/comprehensive-plan.pdf; Virginia Department of Education, Appendix A: Historical Overview of the Standards of Learning Program (2013), https://www.doe.virginia.gov/boe/reports/annual_reports/2013_appendix_a_sol_history.pdf 110 See, e.g., Davis Burroughs, Virginia Board of Education Seeks Nearly $1 Billion in New K-12 Funding, VIRGINIA DOGWOOD (October 17, 2019), https://vadogwood.com/2019/10/17/virginia-board-of-education-seeks-nearly-1- billion-in-new-k-12-funding/ (describing the Board’s 2019 political push for expanded at-risk funding in service of “equitable outcomes” for disadvantaged children). 111 Id. 112 Justin Mattingly, It was a Landmark Year for Education Funding in Virginia—Until COVID-19, THE RICHMOND TIMES DISPATCH (April 24, 2020), https://richmond.com/news/virginia/it-was-a-landmark-year-for-education- funding-in-virginia---until-covid-19/article_c50665a6-172d-5f56-a1b0-43240cfff68d.html.

23 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

The standards of quality were implemented through the establishment of a new funding

formula based on several calculations: a “Basic State Aid” calculation of what it would cost to

comply with the SOQs, and a “Local Composite Index” measuring a locality’s ability to share

school costs.113 However, almost immediately after implementation, state political candidates

began to face calls to “fully fund” the standards of quality and increase state funding.114 In

response, the Joint Legislative Audit and Review Commission (JLARC) made several technical

recommendations. But the recommended changes, once adopted, made the formula more

complex, which further obfuscated how much the state spent, preventing public

accountability.115

The state’s revised calculation methods have not been without controversy. For example,

the new formula employed a linear weighted average to calculate costs—which means that the

state’s calculation of how much it costs to educate a child in Virginia probably substantially

underestimates how much it costs to educate a child in more expensive parts of the state, thus

ignoring one of the main drivers of inequality.116 Though Virginia added an At-Risk Add-On

fund in the 1990s (shortly after the Scott case) to improve funding for poor students, it has not

been sufficient.117 In 2001, JLARC for the first time criticized the funding scheme’s inadequate

support and unequal distribution. Unfortunately, the legislature’s response was distracted at best.

When the 2008 financial crisis hit, funding was further cut, and never truly restored. Even as of

2019, the legislature continued to discuss “lifting the cap” on support staff that was put in place

113 Professor Salmon suggests that the complexity of this formula was a direct response to Burruss v. Wilkerson and an attempt to avoid equal rights litigation over school funding. Salmon, supra note 7, at 151. 114 Id. at 152. 115 Id. at 153. 116 Id. 117 Va. Code § 22.1-199.1.

24 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

over a decade before.118 The coronavirus’s destruction of state budgetary revenues will only

worsen the problem.119

Today, Virginia’s state share of funding ranks number 40 out of 51 states or territories,

and its thirty-nine percent share falls significantly below the national average of forty-eight

percent.120 Such low state funding results in large disparities between wealthy and poor districts.

For example, in 2018, one district (Norton, Virginia) spent less than half as much money per student as another (Arlington).121 Virginia has consistently received “D” and “F” grades on the

Funding Fairness report card by Rutgers University for the disparately low funds received by

high poverty districts compared to peer districts, despite the massive need posed by educating

children in concentrated poverty.122

C. The race-blind attempt at educational quality for “all children” passed in 1971

failed to address one of the biggest obstacles to equal schools: integration.

Though the racial integration of schools drove the events behind Virginia’s constitutional

revision, its revisers avoided discussing the topic much.123 The 1971 revision does not explicitly

mention race, but rather calls for “quality” schools for “all children,” subtly including those

118 Schuyler Van Valkenburg et al., A student who is safe is a student who is safe to learn, RICHMOND TIMES- DISPATCH (Mar. 31, 2019), https://www.richmond.com/opinion/columnists/vanvalkenburg-bourne-and-mullin- column-a-student-who-is-safe/article_db7679dc-4f32-50fc-901e-deeac5550033.html. 119 Daniella Cheslow, In Shadow of Coronavirus, Virginia Lawmakers Freeze New Spending in State Budget, WAMU 88.5 (Apr. 22, 2020), https://wamu.org/story/20/04/22/in-shadow-of-coronavirus-virginia-lawmakers-to- freeze-new-spending-in-state-budget/. 120 NAT’L EDUC. ASS’N., RANKINGS OF THE STATES 2018 AND ESTIMATES OF SCHOOL STATISTICS 2019, 33, 35 (2019), http://www.nea.org/assets/docs/2019%20Rankings%20and%20Estimates%20Report.pdf. 121 https://roanoke.com/opinion/editorials/editorial-did-the-virginia-supreme-court-show-school-districts-how-to- sue-over-disparities/article_f3e07697-879d-50d1-9ac9-573b741856c7.html. 122 Baker, et al., supra note 11, at 11; Bruce D. Baker, et al., Is School Funding Fair? A National Report Card RUTGERS GRADUATE SCHOOL OF EDUCATION & EDUCATION LAW CENTER (5th ed. 2016); Bruce D. Baker, et al. Is School Funding Fair? A National Report Card RUTGERS GRADUATE SCHOOL OF EDUCATION & EDUCATION LAW CENTER (3d. ed. 2014); Bruce D. Baker, et al., Is School Funding Fair? A National Report Card RUTGERS GRADUATE SCHOOL OF EDUCATION & EDUCATION LAW CENTER (2d ed. 2012); Bruce D. Baker, et al., Is School Funding Fair? A National Report Card RUTGERS GRADUATE SCHOOL OF EDUCATION & EDUCATION LAW CENTER (2010). 123 COMMISSION ON CONSTITUTIONAL REVISION, supra note 68, at 254.

25 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

formerly excluded by de jure segregation in the new vision of a quality school system. The

revisers’ language reflected many white Americans’ hopes after Brown: if policymakers

removed the barrier of de jure segregation and improved the quality of all schools, then outcomes

should improve for formerly disadvantaged children somehow, and at no cost to white families’

comfort and self-segregation. Unfortunately, this has not worked out as hoped.

i. The battle over segregation continued in the 1970s with busing and ‘white flight.’

In the years following the 1971 constitutional revision, segregation continued, though

more quietly than in prior years. Most districts saw integration as a thing to be avoided as much

as possible. Only by federal court order would districts reluctantly integrate, and then only as

much as required, which might be a bare token amount.124 Most Virginia districts integrated

through “freedom of choice” plans, which required parents to actively apply (and receive

approval) to transfer their children to other-race schools.125 Such plans didn’t actually result in

much integration, since no white families requested transfers to Black schools and few Black

families applied to white schools, perhaps because of fear or harassment, or perhaps because

transfers were often rejected.126 But after the Supreme Court held in Green v. County School

Board that desegregation plans needed to actually integrate schools or they were not valid,127

much of the debate on integration shifted to busing plans and district consolidation.

Richmond is a good example. In 1961 through 1965, eleven Black students in Richmond

brought suit over the freedom of choice plan after their applications for transfer were denied.

Unmoved, both the district court judge and the Fourth Circuit upheld the plan and concluded that

124 RYAN, supra note 88, at 55–109. 125 RYAN, supra note 88, at 56; Green v. County School Board (of New Kent County), 391 U.S. 430, 433–435 (1968). 126 Id. Daniel Kiel, The Memphis 13 [video] (2012), https://thememphis13.com. 127 Green, 391 U.S. at 237–438.

26 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

“[a] state or a school district offends no constitutional requirement when it grants to all students

uniformly an unrestricted freedom of choice as to schools attended,” even if those choices result

in continued segregation.128 But five years later, buttressed by the ruling in Green, the plaintiffs

returned to court.129

Richmond’s numbers at that time clearly did not meet Green’s more stringent standards

for a unitary school district, so the new judge ordered the district to develop a busing plan.130

The school board and the district court went back and forth in the years following, first debating

and implementing various busing plans.131 Ultimately the district judge issued an order to

consolidate Richmond with nearby school districts.132 On appeal, the Fourth Circuit overturned

the ruling, alleging that remaining school and residential segregation had mysterious origins that

did not justify holding the school boards responsible.133 The Supreme Court affirmed, per

curiam, in a four-four tie with Justice Lewis Powell, previously a Richmond School Board chair,

recusing himself.134

Meanwhile, in Richmond as elsewhere, the litigation that led to busing orders was

causing a mass exodus of white families to suburbs. In the fall of 1970, some four thousand

white students in Richmond, about a tenth of the district’s total population, left in response to the

initial busing order.135 By 1971, the population of the Richmond Public Schools was 70%

128 RYAN, supra note 88, at 72; Bradley v. Richmond Sch. Bd., 345 F.2d 310, 316 (4th Cir. 1965). 129 RYAN, supra note 88, at 73; Bradley v. Richmond Sch. Bd., 416 U.S. 696, 701 (1974) (“[O]n March 10, 1970, petitioners filed with the District Court a motion for further relief in the light of the opinions of this Court in Green…”). 130 RYAN, supra note 88, at 74; Bradley v. Richmond Sch. Bd., 317 F.Supp 555 (E.D.Va. 1970). 131 RYAN, supra note 88, at 74–82. 132 Id. at 82-89; Bradley v. Richmond Sch. Bd., 338 F. Supp. 67 (E.D. Va. 1972). 133 Bradley v. Sch. Bd., 462 F.2d 1058, 1066 (4th Cir. 1972) (“We think that the root causes of the concentration of blacks in the inner cities of America are simply not known”). 134 School Board v. State Board of Education, 412 U.S. 92 (1973). 135 RYAN, supra note 88, at 78, 80.

27 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Black.136 This increased the urgency of consolidation for many who realized that busing within a city district would mean nothing if white families can simply leave.

A few years later, the Supreme Court finally addressed the busing and consolidation question. In its 1974 opinion, Milliken v. Bradley, the Court (newly filled by Nixon appointees) set striking limits on district courts’ abilities to fashion remedies for segregation, limiting any court orders to the single school district in which a ‘violation’ was found and ending all busing across district lines.137 The court expressly denied de facto school segregation to be a problem caused by legal injustice.138 In short, the court put its stamp of approval on a new method for

maintaining age-old segregation: keep kids within district lines. Hamstrung by the limitations of busing within urban districts that were overwhelmingly non-white, the movement for integration withered.139

Virginia’s leaders must have cheered the Milliken decision because shortly thereafter they

passed a law freezing all school district lines from 1978 in place except by joint resolution of the

General Assembly and agreement of the local school board.140 The statute is still on the books in

Virginia today,141 separating children into school districts and zones that allow some families to

choose their schools and leave others where they were before integration supposedly occurred.

ii. Ultimately, segregation has worsened, due to a lack of commitment to integration.

136 Id. 137 418 U.S. 717 (1974). 138 Id. at 745. 139 Kimberly J. Robinson, Resurrecting the Promise of Brown, 88 N.C. L. REV. 810, 817–19 (2010). 140 See Code of Virginia § 22.1-25(A) 1-3. How School Divisions Made. “… 1. The school divisions as they exist on July 1, 1978, shall be and remain the school divisions of the Commonwealth until further action of the Board of Education taken in accordance with the provisions of this section except that when a town becomes an independent city, the town shall also become a school division. 2. No school division shall be divided or consolidated without the consent of the school board thereof and the governing body of the county or city … 3. No change shall be made in the composition of any school division if such change conflicts with any joint resolution …of the General Assembly …” Note that this statue strips the Board of its constitutional power to draw division lines in ways that best promote the standards of quality. See Angela Ciolfi, Shuffling the Deck: Redistricting to Promote a Quality Education in Virginia, 89 VA. L. REV. 773 (2003). 141 Id.

28 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

After Milliken, things slowly began to worsen for children of color, whether measured by

integration, funding, or outcomes. Federal courts lowered the bar again and again for what a

unitary (integrated) school district looked like, releasing most previously segregated school

districts from court supervision.142 This means that for most schools and districts, integration

was at its high point around the late 1980s and has declined since.143 In 1992, the Supreme Court

epitomized its jurisprudence on the topic in Parents Involved v. Seattle School District No. 1.144

Seattle and St. Louis, like many other progressive-minded localities, had voluntarily created their

own local integration schemes, using a student’s race as a factor in deciding his school

assignment. This, the Court found, was illegal under Brown.145 To the Court, Brown did not

require integration. It required race-blindness.146

It is much more empirically clear today than it was in 1992 that this race-blind legal system allows past inequalities to worsen significantly, rather than making space for such wrongs to right themselves. Today, the combination of rising income inequality147 and rising de facto

segregation148 leaves the entire legacy of Brown under significant threat.

In Virginia, we can see this play out. Both racial status and socioeconomic status work

together to trap certain children in a cycle of trauma and poverty. Today, poor Black students in

Virginia are nearly two times more likely to be in a high-poverty, mostly-minority school (what

142 See Kimberly J. Robinson, Resurrecting the Promise of Brown, 88 N.C. L. REV. 810 (2010) (arguing that the Court has validated resegregation in schools). 143 See, e.g., Genevieve Siegel-Hawley and Jennifer Ayscue, Miles to Go: A Report on School Segregation in Virginia, 1989-2010 (March 13, 2013), THE CIVIL RIGHTS PROJECT (describing increases in Virginia’s hyper- segregated schools since 1989). 144 551 U.S. 701 (1992). 145 Id. at 747–48. 146 Id. 147 Juliana Menasce Horowitz, et al. Trends in Income and Wealth Inequality, Pew Research Center: Social and Demographic Trends (Jan. 9, 2020), https://www.pewsocialtrends.org/2020/01/09/trends-in-income-and-wealth- inequality/. 148 Duncombe & Cassidy, supra note 13.

29 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

is known as a hyper-segregated) school than they were twenty years ago, and nearly a fifth of all

Black students in Virginia are stuck in such schools.149

iii. The inequities faced by Black Virginians today go beyond education.

The problem is not merely the segregation of classrooms. It’s a failure of our society to

share responsibility for all harms to childhood, over what has now become the course of

generations. Black Virginians today—many of whom are the descendants of enslaved

people150—face the worst of all non-educational factors, exacerbating inequities during

childhood. Blacks are overrepresented today amongst Virginians who experience extreme

poverty,151 food insecurity,152 evictions,153 health problems,154 crime victimization,155 and

criminal enforcement.156 Black family wealth remains at a significant disadvantage because of an

inability to purchase homes for generations.157 Black Virginians today are still rejected for

149 Id. This does not count the Black children who are relegated to lower-tracked classrooms or face other intra- school segregation. See Karolyn Tyson, Tracking, Segregation, and the Opportunity Gap: What We Know and Why It Matters in CLOSING THE OPPORTUNITY GAP: WHAT AMERICA MUST DO TO GIVE EVERY CHILD AN EVEN CHANCE (2013). 150 Audra D.S. Burch, James Monroe Enslaved Hundreds. Their Descendants Still Live Next Door., N.Y. TIMES (July 7, 2019), https://www.nytimes.com/2019/07/07/us/politics/monroe-slavery-highland.html. 151 Statistical Atlas, Virginia. Household Income Distribution by Race (last accessed June 1, 2020), https://statisticalatlas.com/state/Virginia/Household-Income (showing Black families are twice as likely as the general population to be represented in the lowest three income brackets). 152 FOOD RESEARCH & ACTION CENTER, POVERTY, HUNGER, HEALTH, AND THE FEDERAL NUTRITION PROGRAMS 14 (July 2020), https://frac.org/wp-content/uploads/FRAC-Poverty-Hunger-Health-and-the-Federal-Nutrition- Programs-2020.pdf. 153 Kathryn Howell, Eviction and Educational Instability in Richmond, Virginia, RVA Eviction Lab, https://rampages.us/rvaevictionlab/wp-content/uploads/sites/33937/2020/02/RVAEL_Eviction-and-Educational- Instability-in-Richmond.pdf. 154 FOOD RESEARCH & ACTION CENTER, supra note 160, at 16. 155 DEPARTMENT OF STATE POLICE, CRIME IN VIRGINIA 2019 54 (2020), https://www.vsp.virginia.gov/downloads/Crime_in_Virginia/Crime%20In%20Virginia%202019.pdf (finding that 45% of violent crimes in Virginia in 2019 had Black victims, compared to 20% of the general population). 156 In 2018, Blacks—which make up only 20% of the Virginia population—made up 45% of all arrests. DEPARTMENT OF STATE POLICE, CRIME IN VIRGINIA 2018 73 (2019), Additionally, they represent over half of Virginia’s prison population. VERA INSTITUTE, INCARCERATION TRENDS IN VIRGINIA (2019), https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-virginia.pdf. 157 Prosperity Now Scorecard, Virginia: Homeownership (last accessed September 20, 2020), https://scorecard.prosperitynow.org/data-by-location#state/va (showing that while 72% of white families in Virginia own homes, fewer than half of Black families own homes); see also Ta Nehisi Coates, The Case for Reparations, The Atlantic (June 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/ (describing historic attempts to deprive Black families of property).

30 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

homeownership loans at a higher rate than white Virginians, even amongst the same income

groups.158 Blackness is far more likely than income to determine whether a family will be

evicted from a Virginia apartment.159

All of these factors work together in Virginia’s school system against the racial equity for

which Brown hoped, and which the 1971 Constitutional Revision is often assumed to have

achieved. For example, in Virginia, even when holding income constant, Black students

persistently fall behind their white peers in skills assessments.160 The gap does not close over the

grades161 (by some measures it worsens162). The gap results in worse diploma outcomes,163

poorer college readiness scores,164 and—ultimately— inferior employment opportunities.165

The one twist in this story is the downfall of rural America. Today, it is not only Black

and Hispanic students166 who are siloed into under-resourced schools, but a new group of white

children in the rural parts of Virginia, whose parents previously worked in industries that no

158 VIRGINIA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT, ANALYSIS OF IMPEDIMENTS TO FAIR HOUSING CHOICE IN THE COMMONWEALTH OF VIRGINIA 36 (May, 2018), https://dhcd.virginia.gov/sites/default/files/Docx/consolidated-plan/analysis-of-the-impediments-to-fair-housing.pdf. 159 Benjamin Teresa, The Geography of Eviction in Richmond: Beyond Poverty, RVA Eviction Lab, https://rampages.us/rvaevictionlab/wp-content/uploads/sites/33937/2020/02/RVAEL_Geographies-of-Eviction.pdf. 160 NAEP Achievement Gaps Dashboard, THE NATION’S REPORT CARD (comparing Black eligible students in Virginia with white eligible students), https://www.nationsreportcard.gov/dashboards/achievement_gaps.aspx (last accessed June 2, 2020). 161 Id. 162 The Virginia Early Childhood Foundation found, for example, that Black students who showed up to school kindergarten-ready fell behind significantly faster than their white or Asian peers. By third grade, the number of Black children from the same cohort not meeting literacy benchmarks had more than doubled. VIRGINIA EARLY CHILDHOOD FOUNDATION, VIRGINIA’S BIENNIAL SCHOOL READINESS REPORT CARD 6 (2018). 163 Virginia Department of Education, State Data: Class of 2019 Diplomas and Completion (last accessed September 1, 2020), https://schoolquality.virginia.gov/virginia-state-quality-profile#desktopTabs-4. 164 COLLEGE BOARD, SAT SUITE OF ASSESSMENTS ANNUAL REPORT: VIRGINIA (2019), https://reports.collegeboard.org/pdf/2019-virginia-sat-suite-assessments-annual-report.pdf; THE CONDITION OF COLLEGE AND CAREER READINESS 2019, VIRGINIA KEY FINDINGS, THE ACT (last accessed September 1, 2020) http://www.act.org/content/dam/act/unsecured/documents/cccr-2019/Virginia-CCCR-2019.pdf. 165 Statistical Atlas, Virginia. Household Income Distribution by Race (last accessed June 1, 2020), https://statisticalatlas.com/state/Virginia/Household-Income (showing Blacks twice as likely as the general population to be represented in the lowest three income brackets). 166 This paper does not discuss the 1960s federal immigration laws, mostly because Virginia’s Hispanic population remains quite small today, and most immigrants to the state of other races are fairly well-off (Virginia’s Asian population is one of the wealthiest groups in the country). However, many of the disparities noted above are also true for the small Hispanic community in Virginia, which has been hit especially hard by Coronavirus.

31 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

longer operate today. These economically depressed communities have been ravaged by the

opioid epidemic and other healthcare crises.167 Those children do not face the same obstacles of

historical segregation that Black children do, but they represent a new part of the coalition for

educational equity and shared childhood, in a society that sorely needs it.

167 Southwestern Virginia has been hit particularly hard by the opioid epidemic, but also faces other economic and healthcare struggles. For an excellent read on the region, see BETH MACY, DOPESICK (2018).

32 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Part III. Comparing Virginia’s experience to other states: how does the battle for

sustainable educational equity work elsewhere?

Virginia is unique in its constitutional commitment to “standards of quality”, the

constitutional status of its Board of Education, and its deferential court culture. Other states have

attempted the battle for sustained educational equity in other ways— some fighting in courts,

some using their constitution, some focusing on legislation and funding formulas. For the

purposes of this paper, this section considers New Jersey and Wyoming as case studies for

constitutional, cultural, and legislative factors that differ from Virginia, and perhaps can serve as

counterpoints for the Commonwealth.

A. New Jersey: An activist court, an understated constitution.

New Jersey is the site of famous school funding litigation. In 1973, the New Jersey state

supreme court was one of the first to hold that the state constitution required equal educational

opportunity, from language that mandated a “thorough and efficient” system of education.168 But in the 1980s, the Abbott v. Burke litigation began, which spanned decades and covered a variety of detailed education policy topics, from funding to pre-kindergarten to content requirements.169

Throughout the Abbott cases the court repeatedly agreed with plaintiffs that what they were

receiving was not equal nor adequate compared to their wealthier (and often whiter) peers. In

response, the court had no qualms about making detailed, policy-based holdings.

The Abbott litigation highlights the most compelling difference between Virginia and

New Jersey: its court. The New Jersey court’s history of ruling progressively on contemporary

168 Robinson v. Cahill, 303 A.2d 273 (N.J. 1973). 169 Education Law Center, State Constitution: Major Cases (last accessed September 1, 2020), https://edlawcenter.org/states/newjersey.html.

33 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

issues170 derives from the reformist principle that “courts should adopt new rules for new

conditions.”171 The court’s strength is partly a structural feature; a 1947 Constitutional revision

reshaped the New Jersey courts, uniting them all under one procedural, standardized system,

when they had previously been split up.172 This also strengthened their Chief Justice’s authority

and capacity.173 Immediately thereafter, one of the primary reformers, Arthur Vanderbilt, Dean

of the New York University Law School, became the first Chief Justice of the new court.174 He

was the other main driver of the court’s strength.175 His work reforming the court’s efficiency

and standardizing its procedures was matched also by his legal work, battling for the court’s

power against the New Jersey general assembly.176 Under Vanderbilt, the Court became a

common law innovator,177 setting the stage for the later plaintiff-friendly rulings in education

litigation.

By contrast, New Jersey’s legislature is considered by scholars to be “weak” or

“timid.”178 Some of this is a geographic reality: New Jersey’s position between grand East Coast

cities makes its own municipalities seem small and uninteresting by comparison, weakening their

political weight. Particularly on issues of local law—zoning, beach use, or schools—the

170 See, e.g., Borough of Neptune City v. Borough of Avon By the Sea, 294 A.2d 47 (N.J.1972) (holding that municipalities may not charge for beach use, because of public trust doctrine); Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. 1975) (holding that zoning was required to advance the welfare of the state as a whole, not a particular township) ; State v. Shack, 277 A.2d 369 (N.J. 1971) (holding that migrant workers can have access to necessary services despite traditional property law rules); 171 J. Peter Byrne, Are Suburbs Unconstitutional? 85 GEO. L. J. 2265, 2274 (1997) (reviewing CHARLES M. HAAR, SUBURBS UNDER SIEGE: RACE, SPACE, AND AUDACIOUS JUDGES (1996) and DAVID L. KIRP ET. AL., OUR TOWN: RACE, HOUSING, AND THE SOUL OF SUBURBIA (1995) 172 CONST. OF N.J. (1947), art. VI, art. XI (describing the new court’s structure, as well as the transition plan). 173 Id. 174 J. Peter Byrne, supra note 179. 175 Arthur T. Vanderbilt, LAW LIBRARY: AMERICAN LAW AND LEGAL INFORMATION, https://law.jrank.org/pages/11066/Vanderbilt-Arthur-T.html 176 Id. See, e.g., Winberry v. Salisbury, 74 A.2d 406 (NJ 1950) (an opinion by Vanderbilt holding that the New Jersey Constitution gives power to the courts, not the legislature, to decide rules affecting procedure in the state’s courts). 177 Many 1Ls will remember reading State v. Shack in property class, an example of the court’s innovative take on property law. See supra note 178. 178 J. Peter Byrne, supra note 179.

34 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

legislature seemed uninterested in addressing problems.179 This disinterest left space for the

court to step in; and by contrast to Virginia’s court, New Jersey’s court believed its role was to

do so.

Likely as a result of this strong court’s take on the Abbott litigation, and very unlike

Virginia, New Jersey is consistently highly rated for its equitable school funding.180 It is ranked

near the top of the country in the effort it makes to fund its schools and the way those funds are

distributed: more to those localities—and students—who need them, and less to localities who do

not.181 On average, per capita spending in a poorer district of New Jersey is 120% the spending

in a wealthy district—exactly what research tells us is necessary.182

But it would be a mistake to assume that this has solved all the state’s equity problems.183

New Jersey’s achievement gap is still significant,184 and its schools are more segregated on a

Black-white basis than Virginia’s.185 Perhaps this is partly because New Jersey’s main driver of

inequality—like in Virginia—is its wealthier districts.186 Still, New Jersey’s outcomes on

education are impressive. The state ranks near the top of the nation in both reading and math

outcomes.187 On average, the effort New Jersey is making matters.

179 Id. 180 Bruce D. Baker & Sean Corcoran, The Stealth Inequities of School Funding: How State and Local School Finance Systems Perpetuate Inequitable Student Spending, CENTER FOR AMERICAN PROGRESS 5 (2012) (hereinafter CAP Report); see also Baker, et al., supra note 11 at 11. See also Ryan, supra note 88, at 160 (describing high- poverty schools in New Jersey as “generously funded” because of school finance litigation”). 181 Baker, et al., supra note 11., at 16–17; see also, CAP Report, supra note 189, at 5. 182 Baker, et al., supra note 11, at 11. 183 New Jersey is probably recently famous for the debacle of education reform in Newark Schools, in which millions of dollars were raised, but the classrooms never saw the money. See Dale Russakoff, Schooled, The New Yorker (May 12, 2014). 184 Stanford Center for Education Policy Analysis, Achievement gaps in some states are larger than others. THE EDUCATIONAL MONITORING PROJECT https://cepa.stanford.edu/educational-opportunity-monitoring- project/achievement-gaps/race/ (last accessed June 2, 2020). 185 NAEP, U.S. Dep’t of Ed., School Composition and the Black-White Achievement Gap, NCES 2015-018 (2015) (Hereinafter: School Composition). 186 Like Virginia, New Jersey has some of the best-ranked public schools in the nation. See, e.g. U.S. News and World Report, Best High Schools Rankings, https://www.usnews.com/education/best-high-schools/rankings- overview (2020) (listing a school in Northern Virginia as the best public high school in the nation). 187 NAEP, The Nation’s Report Card: State Profiles, supra note 100.

35 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

In contrast to Virginia, and perhaps surprising given the successful litigation, New

Jersey’s constitution is not particularly committed to education. In fact, the entire constitutional

section on schools is hidden inside the article on “Taxation and Finance.”188 In all, the

Constitution includes a brief mention of the state school fund, and a mere sentence on the legislature’s educational mandate: “The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.”189 There is no mention of textbooks, mandated standards, or even state educational governance. This simple language supports the conclusion of Jim Ryan and other scholars that sometimes a state’s court culture matters more to school finance litigation outcomes than the actual constitutional language.190

B. Wyoming: Tiny rural state, or model for Virginia?

Perhaps one of the most unexpected stars in school funding commitment and equity is

Wyoming. Ranked near the top of states in its state funding levels, its funding effort, and the

equity of its funding scheme,191 Wyoming appears to represent the epitome of school funding

activists’ goals for other states. Its achievement gap is one of the smallest in the country,192 and

in both reading and math its students seem to do very well.193

In fact, the Wyoming Constitution appears to expressly require this. The Education

Article of the Constitution explicitly requires an “equitable” funding scheme,194 and it leaves no

argument unavailable to plaintiffs in its mandate to the legislature to

188 CONST. OF N.J. (1947), art. VIII, § IV. 189 Id. 190 RYAN, supra note 88 at 146. 191 Baker, supra note 11, at 10, 11, 16, 17. 192 Stanford Center for Education Policy Analysis, supra note 192. 193 Fourth grade reading ranks 3rd in the nation, and fourth grade math ranks 7th. In eighth grade, rankings drop slightly. NAEP, The Nation’s Report Card: State Profiles (2019), supra note 100. 194 CONST. OF THE STATE OF WYOMING, art. 7, § 8

36 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

“provide for the establishment and maintenance of a complete and uniform system of public instruction,” embracing free elementary schools of every needed kind and grade, a university with such technical and professional departments as the public good may require and the means of the state allow, and such other institutions as may be necessary.”195

The document itself is remarkable; the language above dates from the original document’s

ratification in 1889, as does language banning “distinction or discrimination” in schools on the

basis of “race, sex, or color.”196 Interestingly, Wyoming, like Virginia, also tries to remove

education from state politics. It does so by vesting governance of the state’s schools in a

“superintendent of public instruction” whose duties shall be “prescribed by law,” similar to

Virginia’s Board of Education,197 and by banning the legislature or state superintendent of

schools from prescribing textbooks198 (presumably leaving such decisions for localities).

In addition to its strong constitutional language, Wyoming has a court that has been willing to delve into school finance litigation. In 1980, around the same time the Abbott litigation was first filed, a group of students and school districts filed suit in Washakie County School

District No. 1 v. Herschler, arguing that the funding scheme—based primarily on local ad

valorem (property) taxes—was denying them equal educational opportunity and a the

constitutionally required “uniform” school financing system.199 The district court, seeing the

Washakie case primarily as a political question that went to no clearly defined state law,

dismissed it.200 But the state supreme court reversed, finding that a funding scheme that would

provide more parity was certainly a complex problem that involved policy judgments, but it was

195 Id. at § 1. 196 Id. at § 10. Wyoming is known as the ‘equality state’ because it was the first state to grant women suffrage, and did so from its inception. Id. at art. 6, §1. 197 Id. at § 14. 198 Id. at § 11. 199 Washakie Cty. School Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980) (Rehearing denied). 200 Id. at 314-15.

37 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

“not a problem that cannot be solved.”201 Showing a relative willingness to cooperate between

the two branches, the court worked with a legislative committee to eventually approve an

“interim” funding scheme that was more equitable, involving some redistribution between

districts and additional taxation by the state.202

Fifteen years later, the state’s funding scheme—which had not been fully revised—faced

suit again.203 This time the court addressed complex problems of education funding in detail.

Addressing the current formula’s estimated divisor values, the various discretion granted to

localities and the way the state attempted to equalize that discretion, and the problem (shared by

districts across the country) of capital expenses for localities that had no more bonding

capacity,204 the Court delved into the math and came out in favor of the plaintiffs, finding the

current funding scheme unconstitutional and setting standards and requirements for a new one.205

While Virginia’s court was looking for the word “equality” in the state constitution’s education

article,206 Wyoming’s court worked the visionary language of its constitution into the complex

math of school funding.207

Perhaps this is an unfair comparison, because Wyoming is, compared to Virginia and

New Jersey, a tiny state with a very homogeneous population.208 Some 85% of Wyoming

residents are white, and most live in comparatively rural settings.209 This homogeneity is so stark

201 Id. at 315 (n. 3). 202 Campbell Cty. School Dist v. State, 907 P.2d 1238, 1246-47 (Wyo. 1995). 203 Id. 204 Id. at 1249. 205 Id. at 1279-80. 206 Scott v. Commonwealth, supra note 43, occurred just one year before Campbell County. The difference in the level of analysis and detail in the opinions is remarkable. 207 Campbell County School Dist., 907 P.2d at 1279. 208 Virginia has a population of over 8 million, while Wyoming’s population has yet to cross 600,000. 209 Statistical Atlas, Race and Ethnicity in Wyoming, https://statisticalatlas.com/state/Wyoming/Race-and-Ethnicity (last accessed June 5, 2020); See Population Density maps, Population of Wyoming, https://statisticalatlas.com/state/Wyoming/Population (last accessed June 5, 2020).

38 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

that Wyoming is left off of some segregation studies because there simply are not enough non-

white children to get an accurate sample size.210 Wyoming also has a very different culture. For

all of its homogeneity, the state proudly tells anyone who will listen that “the equality state” was

the first state to grant women the right to vote, and nondiscrimination on the basis of race has

been in their constitution since the state’s original founding.211 Wyoming was never a slavery

state, it never saw Jim Crow laws, and never had segregated schools to integrate after the Brown

litigation.212

But Wyoming’s value as a comparator should not go unseen. Virginia’s educational

problem areas are in its urban areas, where poor people of color are concentrated, and in its rural

areas, where poor white people are increasingly underemployed and facing health problems.213

These people might not find Wyoming’s geography so different from their own. And though

Virginia has a different history of race than Wyoming, Virginia’s political culture and values

have changed drastically in the last twenty years.214 It seems perfectly plausible to think that

Virginia’s constitution could call for nondiscrimination and substantially “uniform” or “equal”

treatment, and that Virginia’s future courts could be a place for plaintiffs to vindicate their causes

210 School Composition, supra note 193, at 11. 211 See supra note 204. 212 Wyoming did not become a state until 1890, when slavery was already outlawed in the U.S. The state constitution began with statements of racial equality. See id. This is not to say that Wyoming avoided all discrimination, but it was never as entrenched as Virginia. See, e.g. Kim Ibach & William Howard Moore, The Emerging Civil Rights Movement: The 1957 Public Accommodations Statute as a Case Study, 73 ANNALS OF WYOMING (2001), now accessible at: http://wyomingalmanac.com/readings_in_wyoming_history_5th_edition/emerging_civil_rights_movement_in_wyo ming_by_ibach_and_moore 213 One of the biggest advocates for education funding in Virginia is rural Republican representative Bill Stanley, who has recognized that there are striking similarities in the needs of rural and urban school districts. Amy Friedenberger, ‘Facing a dire need’ for funding for school construction, Virginia lawmakers pitch proposals, THE ROANOKE TIMES (Jan. 18, 2020), https://www.roanoke.com/news/education/facing-a-dire-need-for-funding-for- school-construction-virginia-lawmakers-pitch-proposals/article_fdcfc9ef-54a9-5d7d-b780-b87a44d8a0fa.html 214 Sabrina Tavernise & Robert Gebeloff, How Voters Turned Virginia From Deep Red to Solid Blue, N.Y. TIMES (Nov. 9, 2019), https://www.nytimes.com/2019/11/09/us/virginia-elections-democrats-republicans.html

39 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

when those rights are not realized in the state’s scheme. Wyoming may be more of a model than

we realize.

C. Comparing Virginia

While New Jersey used statutes, budget changes, and aggressive litigation to improve its

schools, despite having outdated and vague educational provisions in its constitution, Wyoming more closely reflects Virginia’s own process of developing constitutional language that will generate public conversation amongst all branches of government. Rather than rely on an unusually strong court, like New Jersey’s, Wyoming has used court, constitution, and political culture to achieve its goals. As far as public support for court-mandated changes, Wyoming’s public rhetoric about “adequate funding” goes alongside their rhetoric about “great schools.”215

This is undoubtedly far easier to do in a small state that has little diversity and plenty of shared experience, however. Compared to Wyoming, Virginia’s population is decidedly larger, more diverse, and more socioeconomically unequal. But it may highlight where Virginia can go next. If Virginia wants to overcome its history of slavery, Jim Crow, and segregated schools, it needs to do even more than Wyoming, not less.

In comparison to these other states, Virginia stands out for its reliance on the legislature to self-enforce the Constitution’s promises. Unlike either Wyoming or New Jersey, Virginia’s court has been unwilling to wade into complex school funding issues. Even if it does not have a

court boldly innovating like New Jersey, Virginia’s court could have moderately mediated

opposing positions with a deep dive into math, like Wyoming, to help the state arrive at a more

equitable medium.

215 See e.g., Wyoming Education Ranked 6th in Nation by the National Education Quality Report, KURL8 NEWS (Sep. 5, 2019), https://www.kulr8.com/news/wyoming-education-ranked-th-in-nation-by-the-national- education/article_e2dcc056-d036-11e9-a031-9f508f484af7.html

40 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Unlike New Jersey, Virginia’s constitution is committed in some detail to educational

quality. The level of detail is similar to Wyoming, but the focus is different: in Wyoming, the

constitution focuses more on uniformity and nondiscrimination, while in Virginia it focuses more

on structures of governance.

Unlike either New Jersey or Wyoming, Virginia faces political opposition to equitable

schools. Though the most aggressive form of Massive Resistance ended years ago, there is still

plenty of quiet evasion: parents in the Richmond area, for instance, send their children to private

schools rather than integrate them into public school settings.216 School division lines from the

days of Milliken v. Bradley have been preserved, instead of redrawn, to protect inequities instead

of combat them.217

But perhaps most different from Wyoming, Virginia’s income distribution is decidedly

disparate, with Black families disproportionately represented in extreme poverty. For southern

states like Virginia, with a deep history of slavery’s legacy, the state’s government’s failure to

fully repair past harms continues to haunt the halls of school buildings today. Worse, the group

of students affected is growing, not shrinking, including more poor children of every race each

year. Change is needed.

216 Richmond’s private school attendance rate, around 30%, is significantly higher than the national average. Libby Germer, A Public History of Public Housing: Richmond, Virginia, Yale National Initiative to Strengthen Teaching in Public Schools (last accessed September 23, 2020), https://teachers.yale.edu/curriculum/viewer/initiative_15.03.05_u 217 Code of Va. 22.1-25(A) 1-3. See generally, Angela Ciolfi, supra note 150 (describing the unconstitutionality of current division in lines in Virginia because they do not promote or realize the standards of quality).

41 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Part V. Addressing the remaining inequities in schools today: the power of a new

constitutional conversation.

In this paper we have considered Virginia’s ugly history with mixed-race schooling,218

and examined the historic constitutional revision in 1971 that firmly ended pro-segregation

resistance while looking toward a new strategy to achieve school quality for all children.219 We

have looked at the empirical impacts of those changes in policy terms.220 We have then

compared Virginia’s educational history with other states that have different stories.221 We are

left with the question: now what?

Those Virginian children who struggled to receive adequate and equal educations prior to

Brown are uncannily similar to the children who struggle to receive adequate and equal

educations today. They are poor, they are often children of color, and their parents, who typically

lack much educational attainment, may feel unwelcome in primarily white and middle-class spaces.222 Their families tend to lack political power and live in communities of concentrated

poverty. These children are thus more likely to be relegated to high poverty, high minority

schools—segregated schools.223

Across the country, litigators, scholars, and policymakers have taken a litany of

approaches to address the rise in de facto segregation and the persistence of achievement

218 Supra Part I 219 Supra Part II 220 Supra part III 221 Supra Part IV 222 In fact, it is unclear if those in the middle are doing particularly well. While federally required data highlights children below the federal poverty level as a group, it aggregates all other children together,222 hiding the wide disparities in outcomes between the middle and the very rich. See DANIEL MARKOVITS, THE MERITOCRACY TRAP: HOW AMERICA’S FOUNDATIONAL MYTH FEEDS INEQAULITY, DISMANTLES THE MIDDLE CLASS, AND DEVOURS THE ELITE 124-133 (2019). We may be missing important trends in achievement and education amongst middle- and working- class children. Though school reformers may still be focused on the plight of the poor, increasing attention to the middle— and better disaggregating data—may shed light on even more concerning trends. 223 Duncombe & Cassidy, supra note 13.

42 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

disparities in education along both socioeconomic and racial lines. As recounted in the stories

from other states, litigators have sued school districts and state departments of education over

funding inequities.224 Policymakers have attempted to find new pedagogical techniques, zoning

plans, or school choice plans that will somehow fix the educational struggles of poor children

despite their difficult home situations.225 Some scholars have argued that educational inequities are a result of accountability failures, stemming from the tangled system of school governance,

226 or problems with funding formulas.227 Still others argue that if the federal courts would

declare a federal right to education, sorely needed federal equity funding would follow.228

Unfortunately, while these efforts have had small successes, on the whole both segregation and

achievement gaps persist in much the same form today as they years ago. The promise of

Brown—and the hope of Virginia’s 1971 Constitutional revision, still remains unfulfilled.

So what can be done? Perhaps instead of hoping for counter-majoritarian efforts like

expert boards of policymakers or court enforcement of vague constitutional promises, there is a

simpler reason why Virginia—like other states—has failed to achieve a sustainable form of

educational equity: most people still do not support it.229 It is probable that our educational

realities reflect the people’s preferences. In fact, this may be a lesson to cull from Virginia’s

constitutional experience: looking back on the historical context and policy results of Virginia’s

224 RYAN, supra note 88, at 149-50. 225 This paper does not address charter schools, because Virginia has very few, and the movement hasn’t gained much ground in the Commonwealth. 226 For the full debate on school governance, see WHO’S IN CHARGE HERE? THE TANGLED WEB OF SCHOOL GOVERNANCE AND POLICY 1 (Epstein ed., 2004). 227 See e.g., CAP report, supra note 189. 228 See, e.g., KIMBERLY J. ROBINSON, A FEDERAL RIGHT TO EDUCATION: FUNDAMENTAL QUESTIONS FOR OUR DEMOCRACY (2019); While advocacy for increased federal help has certainly resulted in more standardized testing and more litigation, as of 2018, federal dollars made up less than 8% of school revenue. NAT’L EDUC. ASS’N., supra note 56, at 8. For the same reason that a low state share of funding results in greater inequities between districts, a low national share contributes to large inequities between state spending on students. See, e.g. Markovits, supra note 231, at 126-27. 229 I am not the first scholar to suggest this. See, e.g. RYAN, supra note 88, at 1-13.

43 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

1971 Constitution, the long-term results of the revision have been remarkably true to the goals represented—ending de jure segregation and enshrining a structure for quality assurance, but avoiding any enforcement that might force the legislature’s hand against popular suburban will.

The revision did not fix all educational inequities because that is not what voters intended it to do.

This is an uncomfortable but informative truth, because it means that the path to justice requires as a first step neither fiercer litigation nor more innovative policymaking, but simple conversations with our neighbors. And one of the best ways to mobilize and develop political support is to do exactly what this paper recounts: to build a public conversation around a constitutional amendment.

Constitutional revision proposals are a powerful medium for creating conversations around our values. In Virginia, for a constitutional amendment to pass, it must be voted through the General Assembly two years in a row, and then put to the voters.230 Because constitutional

revisions require the support of both the public and political leaders, once passed, the intended

policy has a high likelihood of implemented success. Just like Virginia’s 1971 constitutional

revision, a new revision could represent the public’s changed hopes, beliefs, or moral values and

could energize public servants who are eager to realize its vision. And with the right structural

shift or statement of values, the revision could have a real effect on outcomes.

This does not mean that a constitutional revision is a quick fix. Rather, as the comparator

states show, the best likelihood of success occurs when there are a confluence of factors to draw

on: constitutional language that gives space to plaintiffs’ arguments and to policymakers, a court

to which plaintiffs can bring counter-majoritarian cases for enforcement when popular will fails

230 See Part II.

44 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

to adequately pursue equity, a stable enough culture to handle initial pushback from the

politically powerful, and a popular set of values that supports lawmaking and makes voters feel

involved in the creation of school quality.

A. Potential Elements of the Conversation

There are a number of options for attacking the key areas of educational inequity. While

the integration of classrooms is likely the most important of these changes, Virginia’s leaders

should not simply look backward to history’s battles, but should also consider forward-looking

policy shifts that would make an impact.

i. Reevaluating current funding strategies

School funding in America overwhelmingly relies on property taxes. Though this is a

very stable form of revenue,231 it is also incredibly regressive.232 Those who are poorer and live

in less desirable housing must tax themselves at a significantly higher rate than those who are

wealthy and live in fancy housing, in order to raise the same amount.233 Plus, those who are

poorer typically live in areas of concentrated poverty, which can increase the cost of education

significantly, meaning that to achieve the same outcome, such communities would need to tax

themselves at an impossibly high rate.234 One important question Virginians should ask is

whether it is really fair to let localities benefit from their own rise and fall in property values,

instead of sharing equally in property value across the state, as a community. Perhaps our

Constitutional taxing and school funding scheme should be rewritten.

231 Alisa Chang & Jonaki Mehta, Why U.S. Schools Are Still Segregated -- And One Idea to Help Change That, NPR (July 7, 2020), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/07/888469809/how- funding-model-preserves-racial-segregation-in-public-schools. 232 See CAP Report, supra note 189. 233 See e.g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973); Edgewood v. Kirby, 777 S.W.2d 391 (TX 1989); David G. Hinojosa, Rodriguez v. San Antonio Independent School District: Forty Years and Counting, in THE ENDURING LEGACY OF RODRIGUEZ: CREATING NEW PATHS OF EQUAL EDUCATIONAL OPPORTUNITY 24-40 (eds. Charles J. Ogletree & Kimberly Jenkins Robinson) (2015). 234 Id.

45 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

The issue is not simply funding for operating expenses. One of the biggest gaps in school

finance comes from the Commonwealth’s refusal to consider capital expenses—like school

renovations, or internet and computer systems—as relevant elements of the state educational

funding scheme.235 In struggling districts of high concentrated poverty, this gap is so severe it

creates safety and health issues.236 Both urban and rural districts alike struggle mightily to

simply operate their schools on dwindling municipal budgets, which means funding cash-

intensive expenses like new buildings or secure technology networks is nearly impossible. As an

example, Richmond’s current need for renovation and construction is so large it would take the

entire city operating budget.237 Most schools in Richmond have not been renovated at all since

the last state influx into school construction, over fifty years ago. When the writer of this paper

worked for Richmond Public Schools in 2018, the central office still used a computer software

system from the early 1990s to manage financials (black screen, green type).238 Virginians need

to consider whether state assistance for schools should actually include the buildings,

information systems, and capital needed to educate children in safe, healthy, and dignified

settings. These could be included in the legislature’s mandate.

235 Amy Friedenberger, ‘Facing a dire need’ for funding for school construction, Virginia lawmakers pitch proposals, THE ROANOKE TIMES (Jan. 18, 2020), https://www.roanoke.com/news/education/facing-a-dire-need-for- funding-for-school-construction-virginia-lawmakers-pitch-proposals/article_fdcfc9ef-54a9-5d7d-b780- b87a44d8a0fa.html. 236 Roanoke Times Editorial Board, Lots of Virginia Schools are Outdated. Why that matters. ROANOKE TIMES (Aug. 15, 2018), https://roanoke.com/opinion/editorials/editorial-lots-of-virginia-schools-are-outdated-why-that- matters/article_cc2a3cbe-f65c-5453-86f6-22c4e846d353.html; Debbie Truong, ‘Borderline criminal’: Many Public Schools Teeter on the Edge of Decrepitude, WASH. POST (May 25, 2019), https://www.washingtonpost.com/local/education/borderline-criminal-thats-the-condition-of-decrepit-public- schools/2019/05/25/bad60064-556f-11e9-814f-e2f46684196e_story.html; Brendan King & Chelsea Rarrick, Richmond teachers believe moldy classrooms are making them sick, CBS 6 NEWS RICHMOND (Oct. 3, 2016), https://www.wtvr.com/2016/10/02/richmond-teachers-believe-moldy-classrooms-are-making-them-sick/. 237 As of 2018, Richmond’s required construction budget hovered around 800-900 million dollars. The annual operating budget of Richmond city is 850 million. Debbie Truong, supra note 244. 238 Roanoke Times Editorial Board, supra note 244. See also Zachary Reid, 100 years ago, Richmond’s Students Faced a Situation Similar to Today’s: Crumbling Facilities, RICHMOND TIMES-DISPATCH (Apr. 30, 2016) (noting the racial disparities in crumbling school buildings).

46 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Finally, Virginia should consider more legally powerful constitutional accountability for its funding formula. Under the current constitution, the legislature has been allowed to keep the base amount for school operations unrealistically low,239 and the base formula itself does not consider student need or concentrated poverty,240 in direct contradiction of research that indicates

that educating children in high poverty settings is far more expensive than children in healthy economic circumstances.241 We could impose stronger safeguards in the constitution.

ii. Expanding public education’s coverage

In the last twenty years, research on early childhood education has grown at an incredible

pace. New discoveries show that the quality of education a child receives in the first five years

impacts that child’s life even into adulthood.242 Yet Virginia still has only a spotty pre-

kindergarten system, cobbled together from state programming, federal Head Start, and some

local, private, and home care options.243 While in recent years policymakers have worked to

expand it, Virginia has yet to promise public universal pre-kindergarten, or even childcare.244

239 RYAN, supra note 88, at 129 (“By all accounts, [the foundation amount] is unrealistically low.”); see also Salmon, supra note 7, at 155–161 (concluding that Virginia’s school funding is inadequate). 240 The Local Composite Index formula is contained in the biennial budget language. Va. Acts of Assembly, Chapter 1289 [HB 30], Item 145, 4.a. (2020). Note that Virginia does have a separate budget line item called the At-Risk Add-On (created shortly after the Scott case), which provides additional funds for disadvantaged students. Va. Code § 22.1-199.1. However, it has also suffered from budgetary limitations. See, e.g. CHRIS DUNCOMBE & CHAD STEWART, VIRGINIA CAN CHOOSE EQUITY FOR SCHOOL FUNDING DURING ECONOMIC CRISIS, THE COMMONWEALTH INSTITUTE (June 8, 2020), https://www.thecommonwealthinstitute.org/2020/06/08/virginia-can-choose-equity-for- school-funding-during-economic-crisis/ (describing the un-allotment of At-Risk funds during economic downturns). 241 RYAN, supra note 88, at 157–170; CAP Report, supra note 189. 242 Centers for Disease Control and Prevention (CDC), Early Childhood Education (August 5, 2016), https://www.cdc.gov/policy/hst/hi5/earlychildhoodeducation/index.html; HALLE, T., TOUT, ET AL., THE RESEARCH BASE FOR A BIRTH THROUGH EIGHT STATE POLICY FRAMEWORK. ALLIANCE FOR EARLY SUCCESS, CHILD TRENDS (2013), https://www.childtrends.org/wp-content/uploads/2013/12/2013-20ResearchBase.pdf 243 Virginia Department of Education, Preschool (last accessed September 2, 2020), http://www.doe.virginia.gov/early-childhood/preschool/index.shtml (showing the public options available for needy students. Note that non-qualifying students must find private options, which range from home settings to official preschools or daycares); National Institute for Early Education Research, The State of Preschool 2018, Rutgers Graduate School of Education 162–163 (2019) (showing that Virginia’s public state preschool program still has limited access, ranking poorly across the board). 244 Id.

47 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

This is despite the overwhelming data suggesting the long-term social benefits to early

childhood programming, such as reduced crime rates and improved health scores,245 as well as

short term improvements in parental work hours and family stability.246 More importantly, such

programming improves equity by putting kids on similar footing for kindergarten readiness.247

Much like in New Jersey, Virginia’s constitution could delineate a specific age range of students for which the state’s public schools are responsible, and could expand that age range, as researchers recommend, to include younger children, including setting aside a funding source for this program, like it does for higher education.

Virginia could also address other gaps that cause inequities through policies such as a year-round school plan,248 a full-day school day or universal after-school programming,249 or

universal childcare from zero to Pre-K.250 These policies, which help stabilize Virginian families

and prevent learning losses, can strengthen a school community and improve student

achievement.

iii. Committing to integrated classrooms and equal schools

245 Centers for Disease Control and Prevention, supra note 250. 246 Centers for Disease Control and Prevention, supra note 250; see also Learning Policy Institute, What Does the Research Really Say About Preschool Effectiveness? (Jan. 31, 2019), https://learningpolicyinstitute.org/press- release/what-does-research-really-say-about-preschool-effectiveness. Sarah Jane Glynn, Jane Farrell, & Nancy Wu, The Importance of Preschool and Childcare for Working Mothers, Center for American Progress (May 8, 2013), https://www.americanprogress.org/issues/education-k-12/reports/2013/05/08/62519/the-importance-of-preschool- and-child-care-for-working-mothers/; Kelsey Piper, Early Childhood Education Yields Big Benefits— Just Not the Ones You Think, VOX (Oct. 16, 2018), https://www.vox.com/future-perfect/2018/10/16/17928164/early-childhood- education-doesnt-teach-kids-fund-it 247 Centers for Disease Control and Prevention, supra note 250. 248 David M. Quinn & Morgan Polikoff, Summer Learning Loss: What Is It, and What Can We do About It?, BROOKINGS (Sept. 15, 2017), https://www.brookings.edu/research/summer-learning-loss-what-is-it-and-what-can- we-do-about-it/ 249 AFTERSCHOOL ALLIANCE, WHAT DOES THE RESEARCH SAY ABOUT AFTERSCHOOL? (Nov. 2017), http://afterschoolalliance.org/documents/What_Does_the_Research_Say_About_Afterschool.pdf; Benefits for Youth, Families, & Communities, Youth.Gov: Afterschool Programs (last accessed Sept. 1, 2020), https://youth.gov/youth-topics/afterschool-programs/benefits-youth-families-and-communities. 250 Kelsey Piper, supra note 254 (explaining why benefits accrue more the closer a program starts to birth).

48 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

Lastly, Virginia should consider a new constitutional amendment on integration and

school equality, enshrining not just equality as a value, but putting legal teeth behind the need for

a shared experience of education in the Commonwealth. While recent proposals have called for

simple statements of equality,251 which are important, we should also think bigger about how to

integrate our current system along both racial and socioeconomic lines, how to enforce an

integration program against pro-segregation pushback, and how to maintain the integration long-

term. Virginia’s school division lines should be redrawn with fewer divisions that consolidate

metropolitan areas, and funding should be made equitable across the state.252 Additionally, this

integration should happen not just at the division level, but the school level, and most

importantly, the classroom level.253

Integrating schools is no easy task, even in 2020. Our Commonwealth has many hard

conversations still in store in order for parents to truly understand and trust each other—enough

to send our children to school together. Can we have compassion for families who struggle to

pay bills? Can white parents accept and overcome their biases about children of color,

particularly poor urban students of color?254 Can all parents see the value in friendships between

their children and children of different backgrounds?

251 Roanoke Times Editorial Board, Will Virginia Finally Mandate Equal Schools?, ROANOKE TIMES (Jan. 24, 2020), https://roanoke.com/opinion/editorials/editorial-will-virginia-finally-mandate-equal- schools/article_804e788e-0606-528a-8d90-b048f3300ddc.html. 252 Ciolfi, supra note 149; Chang & Mehta, supra note 239. 253 Tyson, supra note 157. 254 Kimberly A. Goyette, Danielle Farrie & Joshua Freely, This School’s Gone Downhill: Racial Change and Perceived School Quality Among Whites, 59 SOC. PROBLEMS 155, 166– 170 (2012) (describing how white parents perceive their school quality to be declining simply as a result of greater numbers of Black children attending the school, regardless of actual metrics); Chase M. Billingham & Matthew O. Hunt, School Racial Composition and Parental Choice: New Evidence on the Preferences of White Parents in the United States, 89 SOCIOLOGICAL EDUC. 99, 99 (2016) (finding that the “proportion of black students in a hypothetical school has a consistent and significant inverse association with the likelihood of white parents enrolling their children in that school”).

49 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021)

What is clearer that parents should embrace these things. An education should teach our

children that good citizens share struggles and successes together. It should teach our children

that good people do not silo ourselves away from our neighbor’s problems. Research shows that

in integrated classrooms, our children become better citizens, less racist, and more

compassionate.255 Additionally, their academic experiences benefit—significantly.256 Parents

just have to face the fear of sending our kids through the door.

We also know that if parents have the time to adjust to integrated education, they do. We

have seen this in Louisville,257 Hartford,258 Omaha,259 and Charlotte.260 If a new program can

withstand a few years of pro-segregation pushback, the community settles.261 And with enough

time, the community develops buy-in and ownership, a sense of pride in the program.262 Wealthy

parents no longer focus on buying houses near “good schools,” but develop concerns about

whether their child is meeting “children of different backgrounds” and broadening their horizons.

This, after all, is what being educated truly means.

It is time for Virginia to take the final step away from segregation and commit to a public-school system that is truly integrated, one where children’s fates are bound up with other

255 THE BENEFITS OF SOCIOECONOMICALLY AND RACIALLY INTEGRATED CLASSROOMS, THE CENTURY FOUNDATION (April 29, 2019), https://tcf.org/content/facts/the-benefits-of-socioeconomically-and-racially-integrated-schools-and- classrooms/?session=1. 256 Id. (finding that students in integrated classrooms are less likely to drop out, more likely to enroll in college, and on average have higher test scores). 257 Alana Semuels, The City that Believed in Desegregation, THE ATLANTIC (March 27, 2015) https://www.theatlantic.com/business/archive/2015/03/the-city-that-believed-in-desegregation/388532/; see also John Eligon, Busing Worked in Louisville. So Why Are Its Schools Becoming More Segregated?, THE N.Y. TIMES (July 28, 2019), https://www.nytimes.com/2019/07/28/us/busing-louisville-student-segregation.html 258 John Britton, et al, SHARING THE WEALTH: HOW REGIONAL FINANCE AND DESEGREGATION PLANS CAN ENHANCE EDUCATIONAL EQUITY, LEARNING POLICY INSTITUTE (Feb. 2019) https://learningpolicyinstitute.org/sites/default/files/product-files/Sharing_The_Wealth_REPORT.pdf 259 Id. 260 RYAN, supra note 88, at 112–114. 261 See e.g., id. at 112. 262 Id. at 113 (describing a stump speech by President Reagan against school busing and integration where the “crowd greeted these statements with silence” and the local paper called integration the district’s “proudest achievement.”).

50 Juliet Buesing Clark, From Massive Resistance to Quiet Evasion, 107 VA. L. REV. (forthcoming 2021) children’s fates, and where the self-segregation of the elite is as politically and socially unacceptable as it is unavailable by law. And if we are brave, we will finally write it into our state’s constitution, for generations to come.

Conclusion

Fifty years ago, Virginia’s voters and political leaders decided to amend the education article of the Virginia constitution. The resulting shift in power, policy, and values was meant to improve the quality of Virginia’s schools and improve the state’s commitment to those schools.

In many ways, it was a success: the era of Massive Resistance and de jure segregation was definitively closed, and Virginia’s Board of Education today informs the funding and policies that guide Virginia’s schools, instead of education governed purely by political whim. Virginia’s schools today rank fifth in the nation in outcomes overall.

The success of the 1971 constitutional revision can inform advocates today who are concerned about new educational problems that remain unsolved—problems of equity and racial justice that persist. Instead of hoping for litigation to fix the problem or federal intervention to fund a change, advocates could work on mobilizing Virginian public opinion to support a state constitutional revision that better reflects modern values and informs both voters and potential implementers of new priorities. With several possible options, it is time to work on a

Constitutional document that will improve education for a new generation, and fix the problems of today.

Adopting a New Constitution

Lessons from Virginia

A. E. Dick Howard

“The earth belongs always to the living generation.”1 So said Thomas Jef- ferson in developing a constitutional theory that included the belief that Virginia’s Constitution should be revised at regular intervals “so that it may be handed on, with periodical repairs, from generation to generation....”2 Despite such advice, some generations of Americans have shown more interest than others in revising their state constitutions. For about a quarter of a century—from the 1920s into the 1940s—no American state adopted a new constitution. By midcentury, however, interest in revising these fundamental laws had burgeoned. So widespread was the movement for constitutional revision that by 1970, a leading student of the subject commented that there was at that time “more official effort directed toward revising and rewriting state constitutions than at any time in the nation’s history with the possible exception of the Civil War and Reconstruction era.”3 Some of these revision efforts were notably successful, for example, the rewriting of the Hawaii Constitution, which was approved by the people of the state in November 1968. Other revisions ended in failure, perhaps the most conspicuous instances being those of New York in 1967 and Mary- land in 1968. Indeed, in modern times, many states have found it more difficult to secure popular approval of a revised constitution. When Virginians went to the polls in November 1970 to vote on a new constitution for the Commonwealth, those who hoped the result would be favorable had before them the unfortunate experience of a number of sister states. Although some states had succeeded in at least partial revision, since 1967 the voters

This article originally appeared as “Constitutional Revision: Virginia and the Nation,” 9 U. Rich. L. Review. 1–48 (1974). Reprinted with the permission of the University of Richmond Law Review.

74 Adopting a New Constitution

of New York, Rhode Island, Maryland, New Mexico, Oregon, Arkansas, and Idaho had rejected proposed new charters for their states. Yet when Vir- ginia voted on four questions comprising a revised Constitution, each one passed, and by percentages ranging from a low of 63 percent to a high (on the main body of the Constitution) of 72 percent. Why some states have been successful in updating their constitutions and others have failed turns on a complex range of factors. The reasons for success and failure lie partly in circumstances peculiar to a given state and partly in patterns that tend to emerge whenever constitutions are revised. The account relates Virginia’s experience to that of several other states which undertook to rewrite their constitutions during the years immediately before and after Virginia’s action.

Revising the Constitution of Virginia

When Virginia undertook the constitutional revision which had its successful climax in the voting of November 1970, it had been forty years since the Virginia Constitution had been the subject of any thorough study. Even that previous revision, which took place in 1928, was a limited one, concerned largely with housekeeping changes. In fact, the document, as of 1968, was largely the product of the Constitutional Con- vention of 1901–02.4 The Constitution that that body wrote was heavily influenced by late nineteenth-century attitudes tending to produce documents more nearly resembling detailed statutes than constitutions. As a result, by the late 1960s there was a rising realization that the Virginia Constitution was long overdue for updating. The initiative for revision in 1968 came from Governor Mills E. Godwin, Jr. Realizing the need to bring Virginia’s fundamental law into line with the Commonwealth’s needs and aspirations, Governor Godwin, in his welcoming address to the General Assembly in January 1968, called attention to the effect of the “inexorable passage of time” on the Virginia Constitution. He therefore proposed that the Assembly authorize him to create a commission to recommend revision.5

By joint resolution the Assembly authorized the Governor to create an eleven-member Commission on Constitutional Revision.6 Governor Godwin forthwith named eleven distinguished Virginians to the Com-

mission, which was chaired by former Governor Albertis S. Harrison, Jr.,

A. E. Dick Howard 75

a Justice of the Supreme Court of Virginia, and which was in every sense a “blue-ribbon” body.7 Moving promptly to their task, the commissioners appointed a Uni- versity of Virginia law professor, A. E. Dick Howard, as executive director, who, in turn, organized the Commission’s staff. The Commission was divided into five subcommittees corresponding roughly, but not pre- cisely, to major areas of the Constitution. Each subcommittee was assigned legal counsel, drawn either from the practicing bar or from one of the law faculties in Virginia. Further to support the work of the Com- mission and its subcommittees, various individuals, mostly law students, were engaged to work during the summer of 1968 and produced about 150 research memoranda. The Commission actively solicited the views of Virginia citizens. In April 1968 a letter signed by the chairman was distributed widely to individuals and organizations, inviting their ideas on any aspect of the constitution. Announcements of this invitation were given via newspapers, radio stations, and television stations throughout Virginia. Moreover, in June and July a series of five public hearings were held at different loca- tions in the Commonwealth. Most of the subcommittee work was done during the summer of 1968. The full Commission met with increasing frequency to deliberate proposals coming from the subcommittees, and by late fall a tentative draft for a revised constitution had taken shape. In addition to approving the text of the revisions, the Commission sifted and approved detailed commentaries to explain its proposals to the governor, the General Assembly, and the public at large. On January 1, 1969, the Commission concluded its work by delivering to the Governor and Assembly a 542- page report.8 Among the Commission’s more notable proposals were those that would commit the Commonwealth to quality education for its youth and would include education among the fundamentals recognized by the Bill of Rights. To finance needed capital improvements, the Commission recommended allowing some state borrowing, the ceiling to be tied to the Commonwealth’s general fund revenues. For the first time in Virginia’s history, a clause forbidding discrimination on the basis of race, color, or national origin would be added to the Bill of Rights. The period of residence required for voting in Virginia would be reduced. Apportionment of seats in Congress and in the General Assembly would be based on pop-

ulation, and districts would be contiguous and compact. To remedy a gap

76 Adopting a New Constitution

in the old Constitution the Commission proposed a provision (modeled after the Twenty-fifth Amendment to the Federal Constitution) dealing with problems of a disabled governor. All cities and those counties over 25,000 population would be able to adopt and amend their own charters and to exercise all powers not denied them by the Constitution, their charters, or statutes enacted by the General Assembly. In keeping with rising concern about environmental quality, the Commission proposed a new conservation article. In addition to these and other specific recommendations, the Com- mission overhauled the Constitution in general. Obsolete sections, such as those dealing with dueling and with the poll tax, were deleted. Apply- ing the principle that a constitution embodies fundamental law and that unnecessary detail ought to be left to the statute books, the Commission proposed excising vast amounts of such statutory matter, especially in the lengthy and cumbersome corporations article. The revised Constitution also represented a general reorganization, so that closely related subjects would be dealt with together. Overall, the result was a crisper, more coherent document half the length of the existing Constitution (which was about 35,000 words). Called into special session in March 1969, the General Assembly approved, with some significant changes, the bulk of the Commission’s proposals. In some ways the Assembly was more cautious than the Com- mission, in other ways bolder. While the legislators agreed that the Com- monwealth’s capacity to issue general obligation bonds for capital projects should be expanded, they scrapped the Commission’s notion that at least part of such a debt might be incurred without popular referendum. Sen- sitive to legislative prerogatives, the Assembly rejected a Commission recommendation that the governor have the authority to initiate adminis- trative reorganization of the executive branch, subject to legislative veto. The legislature dropped the Commission’s approach to greater autonomy for local government. In other respects the General Assembly went further than had the Commission. Preserving the concept of a commitment to quality education, the legislators put teeth in the education article by way of a mandate of the localities to come up with their share of the cost of supporting public schools. The Assembly recognized that the time had come for annual legislative sessions, a step that the Commission had been unwilling to take. The legislators rewrote and strengthened the new conservation arti-

cle, took a first step toward limiting the traditional appointing powers of

A. E. Dick Howard 77

judges, and enhanced the Assembly’s control over the sometimes controversial State Corporation Commission. There were those who had held their breath at the idea of a legislature writing a constitution. Many observers associated the legislative process with lobbying, horse-trading, and the representation of special interest. Some people would have preferred the calling of a constitutional convention, elected for the express purpose of rewriting the Constitution. But when the General Assembly had finished its work, much of the skep- ticism heard before the session had vanished. The Washington Post, for example, which confessed its doubts about the job the Assembly might do, had to admit that the revision, while hardly perfect, was a good one, perhaps even better than the draft that the Commission had submitted. “The General Assembly,” concluded the Post, “has risen above itself. It has produced a document that, with all its shortcoming, would have been inconceivable in Virginia a decade or even five years ago.”9 The revisions took the form of amendments to the existing Consti- tution. To become effective, an amendment must be approved by two sessions of the General Assembly, separated by an election of delegates, and then agreed to by the people in a referendum. Therefore the amendments that passed the 1969 special session were acted on a second time at the regular legislative session in 1970. At the 1969 session, steps had been taken to separate questions thought to be more sensitive or controversial into distinct items which could be voted on individually on the referendum ballot. The 1970 session, therefore, had before it the main body of the Constitution, which encompassed the bulk of the revisions, and five separate questions—two involving state borrowing, one that would repeal the constitutional prohibition on lotteries, one that would allow state aid to handicapped children in private schools whether church-related or not, and one that would allow the General Assembly, by special act, to change the boundaries of the Capital City. The main body of the revisions was readily approved at the 1970 session, as were the questions touching lotteries and, despite some lingering “pay-as-you-go” sentiment, the provisions liberalizing state borrowing. The other two questions—those regarding aid to children in private schools and the Capital City’s boundaries—were defeated. Thus four questions would go on the ballot in November 1970. At the time it approved the Virginia revisions, the General Assembly was aware of recent experience in other states, notably Maryland, where 10 new or revised constitutions had been soundly defeated at the polls. One

78 Adopting a New Constitution

lesson learned from some of those referenda was the danger of presenting the voters with a take-it-or-leave-it package in which they were obliged to approve or disapprove all the constitutional changes in a single question.11 The Virginia legislature deemed it wise to have questions thought to be more controversial, especially those regarding state debt, voted on separately. Thus the Virginia voter, in November 1970, would be entitled to vote “yes” or “no” on any or all of the four questions in any combination he or she saw fit. The ballot was designed to be simple and straightforward. Each of the four questions had not only a number (as is customary) but also a brief title—”Main Body of the Constitution,” “Lotteries,” “General Obliga- tion Bonds,” and “Revenue Bonds—making it easier for the press and the public to talk about the propositions individually. The questions on the ballot were drafted so as to avoid legalese and to use instead ordinary Eng- lish perfectly comprehensible to the layman. The ballot questions were brief and to the point and simply asked the voter to vote “yes” or “no” on each proposition. In the spring of 1970, the first steps were taken toward the creation of a committee to inform the people of Virginia about the revisions on which they would vote in November. The committee was designed to be an entirely private effort, funded by private contributions. Governor Linwood Holton asked A. E. Dick Howard, who had been executive director of the Commission on Constitutional Revision and had served as counsel to the 1969 and 1970 sessions of the General Assembly, to create such a committee. He in turn assembled a staff for what came to be known as “Virginians for the Constitution.” Since no state money was involved, a fund-raising effort was necessary, and James C. Wheat, a Richmond stockbroker, agreed to chair a finance committee to solicit private contributions. In the campaign for ratification of the new Constitution, several objects were conceived. First was the task of informing and educating the public about the revisions, making fair and factual information available through pamphlets, the press and media, and whatever other channels might be available. Thus, those who wanted to study the amendments in detail would have full opportunity and encouragement to do so. In addition, on the assumption that many voters would not delve into the specifics of the revisions, admittedly a complex matter, it was thought important to foster a general climate of acceptance. The proponents hoped that a voter not completely informed on the details of the revi-

sions, but seeing the state and local leaders with whom he or she identi-

A. E. Dick Howard 79

fied supporting the new Constitution, would have less reason to mistrust the idea of accepting the proposed changes. Finally, it was thought that the campaign should work within the political process. Lest the campaign be too removed from grassroots sentiment, the active support and coop- eration of political parties and leaders—Democratic, Republican, and independent—was sought at state and local levels alike. A statewide steering committee for Virginians for the Constitution was assembled. Symbolizing the broad consensus of support which the revisions enjoyed, former Governor Godwin (then also active in the reelection campaign of independent U.S. Senator Harry F. Byrd, Jr.) would be honorary chairman, and his Republican successor, Linwood Holton, would be the campaign’s chairman. The committee itself was remarkable for the diversity of the people it drew together. Named to the steering committee were all three men who had sought the nomination for governor in the 1969 Democratic primary—William C. Battle, Henry E. Howell, Jr., and Fred Pollard—men thus representing the full sweep of factions in that party. (The Republican candidate, the winner in 1969, was, of course, already represented, as the referendum committee’s chairman.) Also named to the steering committee were the Republican and Democratic candidates for lieutenant governor and attorney general in the 1969 general election. Represented also were Democratic and Repub- lican leaders from both houses of the General Assembly. Joining the politicians were leaders from other walks of life—labor, business, education, youth, blacks, civic groups, agriculture, and local government. Named to the committee, for example, were the presidents of such major groups as the Virginia State AFL-CIO, the Virginia Con- gress of Parents and Teachers, the Virginia Municipal League, the Virginia Association of Counties, the Virginia Education Association, and the Vir- ginia Federation of Women’s Clubs. The state steering committee came into being essentially to demon- strate the consensus for approval of the new Constitution, a spectrum of support cutting across party and faction lines. The work of day-to-day campaigning, however, had to be done at the local level, and could not be accomplished from Richmond. Hence an early step in organizing the effort of Virginians for the Constitution was the creation of campaign committees in the cities and counties of Virginia. Just as the state steering committee was meant to reflect the major political and interest groups among Virginia’s citizens, so were the local

committees intended to mirror the character of the particular locality.

80 Adopting a New Constitution

The executive director of Virginians for the Constitution or one of the several area coordinators contacted local political and other leaders to initiate a local effort. Special efforts were made to emphasize the nonpartisan character of the pro-constitution campaign. To the fullest extent possible, well-known Republicans, Democrats, and—because of the independent candidacy of Senator Byrd—supporters of Byrd were prominent in each local committee. In addition, the committee reflected the demography of that area, including as appropriate, farmers, business- men, ethnic leaders, educators, and other representative persons. Typically state legislators and locally elected officials, such as councilmen, supervisors, and constitutional officers, were either formally on the local committee or publicly associated with it. Normally a local committee had a chairman or cochairman who, selected for his or her stature in the community, might not necessarily do the day-to-day work of organizing the local campaign. Often a young lawyer, Jaycee, or some other young person was asked to serve as executive director of the local campaign. It was with the local executive director that the state office of Virginians for the Constitution and the area coordinator worked, and to him or her they looked for the marshaling of local resources. Some things were best done at the state level, some in the localities. Virginians for the Constitution took the lead in creating themes for the campaign, printing information brochures, producing such paraphernalia as lapel buttons and bumper stickers, securing billboard space, buying television advertising time, and otherwise supplying most of the basic materials of a campaign. The state office looked to the local committees for the more personal effort best undertaken at the grass roots, including working with local civic groups, canvassing voters, arranging local press coverage of events, handling local newspaper and radio advertising, and manning the polls on election day. To assist the local committees, Virginians for the Constitution created a manual giving ideas on local organizing. The manual suggested the creation of committees to be responsible for liaison with local organizations (such as service clubs, women’s clubs, trade groups, etc.), for voter contact both before election day (as by mass mailings and door-to-door canvassing) and on election day (as by manning the polls and handing out sample ballots), for furnishing speakers to local groups, for handling local publicity and advertising, and for raising money to cover local campaign expenses. With the manual were included sample spots for radio adver-

tisements, sample news releases, and other guides for local publicity.

A. E. Dick Howard 81

At the state level, Virginians for the Constitution set out to reach the voters in a variety of ways. One of the first steps was to establish contact with major statewide organizations, such as the Jaycees, the AFL-CIO, the Retail Merchants, the Virginia Education Association, the Crusade for Voters, the League of Women Voters, the Virginia State Bar Association, and many others. Virtually every major group that was asked for a formal endorsement of the revised Constitution gave such backing, the chief exceptions being those service clubs (such as the Rotarians and Kiwani- ans) whose policies preclude stands on issues which, even if nonpartisan, are political. In addition to giving endorsements, many of the statewide organizations took an active part in the campaign to inform the voters, by using their newsletters and other means to get information about the new Con- stitution to their own membership. Active support of the revised Consti- tution often came after action by an executive committee authorized to take such action, by vote of a statewide convention, or occasionally by a referendum within the organization statewide. An instance of such a poll was the vote taken by Jaycee chapters in Virginia; more than 92 percent of the Jaycees voting endorsed the main body of the Constitution, while slightly lower percentages endorsed the three separate questions. The role of the press and media in informing the public was obvious. During the summer of 1970 the executive director of Virginians for the Constitution traveled throughout the state, visiting the editors and staff members of Virginia newspapers. At sessions sometimes lasting half a day, information was conveyed and questions answered, so that local papers could help voters evaluate the revised Constitution. Near the end of the campaign, in October, at the request of the Richmond News Leader, the executive director prepared a series of ten signed articles for publication in that newspaper; they appeared as well in papers in several other Virginia cities. Virginians for the Constitution created a speaker’s bureau. Any local group, such as a service club, which wanted a speaker on the Constitution could contact the Virginians’ Richmond Office, and a speaker would be supplied. The roster of speakers included legislators, lawyers, college presidents, and many others. Approximately a thousand speaking engage- ments were filled in response to requests received at the Richmond office. Countless other talks were given by speakers arranged for by local campaign committees. To assist the speakers, Virginians for the Constitution prepared a package of speakers’ notes, supplemented by fact sheets on spe-

cific questions that tended to arise in question-and-answer periods.

82 Adopting a New Constitution

Yet another vehicle for reaching and informing the public was brochures that were distributed in large quantities to local committees to be mailed out, left at doorsteps, and used at public meetings. Virginians for the Constitution produced an attractive red-white-and-blue brochure that explained how the four questions would appear on the ballot and summed up the highlights of the proposed changes. Probably 500,000 of these brochures were printed and distributed. For those people who might want a more detailed analysis of the revisions, several publications were available: the full text of the Constitution, an article-by-article sum- mary of the revised Constitution, and a factual question-and-answer sheet published by the Extension Service at Virginia Polytechnic Institute and State University. In addition to conveying specific information about the Constitu- tion, the proponents deemed it essential to create a general climate of awareness that there was in fact a revision underway and that the people would be asked to vote on it in November. The greatest misfortune would be for large numbers of voters to arrive at the polls in November and, on being handed a ballot, for the first time discover that constitutional amendments were being voted on. Since constitutional revision lacks the popular impact of a candidate’s race, Virginians for the Constitution undertook to use a variety of means to stimulate general awareness so that voters would be in a position to make informed judgments at the polls. The animating spirit of the campaign was that apathy and indifference would likely be more formidable problems than would hostility and opposition. A positive theme had to be evolved that people would identify with the new Constitution. Working with a Richmond advertising agency, Vir- ginians for the Constitution evolved a “yes” theme—a red-white-and-blue “yes” with stars and stripes suggesting a Fourth of July spirit. This “yes” logo was used throughout the campaign—on brochures, lapel buttons, bumper stickers, billboards, window cards, and wherever visual identifi- cation was important. (Some young women who wore the “yes” button reported that not everyone who saw the button realized that it was limited to constitutional revision.) In reaching particular groups of voters, special committees were created. A fifty-three-member group known as Rural Virginians for the Con- stitution was formed from distinguished citizens well known in rural areas, such as past presidents of Ruritan International and of the Future

Farmers of America in Virginia. On the theory that many voters regularly

A. E. Dick Howard 83

read the sports page, whatever else they may read, there was formed Sportsmen for the Constitution, including tennis star Arthur Ashe, foot- ball pro Ken Willard, golfer Vinnie Giles, stock car driver “Runt” Harris, and all of the players on both the Virginia Squires basketball team and the Richmond Braves baseball team. The campaign was scheduled for early summer through election day. The summer was spent largely laying the groundwork by creating a staff, establishing contact with statewide organizations, preparing copy for brochures, and making initial contact with people who might carry forward with the creation of local committees. Public campaigning before Labor Day, such as speech-making and advertising, would have been wasted effort, being simply too far ahead of the actual election date. It was agreed that the major effort at reaching and informing voters should take place during September and October, so that the campaign, like any other campaign, would not “peak” too early and thus be dissipated by election day. Throughout there was emphasis on the nonpartisan nature of the revision effort. Governors Godwin and Holton, for example, appeared together in early October at a luncheon session arranged by the Virginia Council on Legislation. The climate of consensus for the new Constitu- tion was heightened by the frequent appearances of well-known political leaders of every ideological hue—all in accord on the merit of the revisions. An especially poignant moment in the campaign came when the popular Lieutenant Governor J. Sergeant Reynolds, who had been hospi- talized for treatment of a brain tumor, used his first public appearance to urge Virginians to vote in favor of the revisions. As the campaign progressed, themes began to emerge. At first, Vir- ginians for the Constitution had been using the rather bland appeal. “For a better Constitution, vote ‘yes.’” As the Virginians’ executive director and others began to go on the hustings to speak to local audiences, they frequently encountered a spirit of disenchantment with government at all levels—local and state as well as federal—engendered by the feeling that governmental decisions were increasingly being taken out of the hands of the people. Because the new Constitution would in a number of ways enhance popular government, the proponents of the Constitution fashioned a new theme: “Bring government closer to the people; vote ‘yes.’” This theme was picked up widely, in speeches, on editorial pages, and elsewhere. It came as close as any one statement that emerged in the cam-

paign to capturing the spirit of the new Constitution.

84 Adopting a New Constitution

Organized opposition to the new Constitution was most vocal in Northern Virginia and in the Richmond suburbs, but resistance to constitutional change probably ran deeper in Southside Virginia. There the two debt proposals ran into long-held views about the virtues of a “pay- as-you-go” approach to state services. While most of the changes embraced in Proposal No. 1 (the main body of the Constitution) pro- voked no general opposition, the greater focus on the state’s role (vis-à-vis the localities) in public education did stir resentment and apprehension. The Farmville Herald, for example, said that, whatever the merit of the other changes, it thought that under the Constitution the state could “prescribe the curriculum, the textbooks, the teachers, the schools, and take complete control of the schools and your child.” Hence the Herald editorial writer intended to vote “no” on Proposal No. 1.12 Much of the Southside opposition was attributable to traditional conservatism. In the suburban areas of Richmond and Northern Virginia, however, there appeared a small but vocal band of opponents rather like those who have taken arms in constitutional referenda in Maryland and other states. These opponents entertained what may be called the “conspiracy” theory of government—that the new Constitution was a socialist plot designed to strip the people of Virginia of their rights. As one opposition pamphlet put it: “Why are these ruthless exploiters disguising more debt, more taxes, big bureaucracy, and approaching serfdom on individuals as needed constitutional change?” Over and over, opposition literature hammered away at the “conspiracy” theme—that the Constitu- tion had been changed through “stealth and trickery,” that the process of revision had been unconstitutional and a “transparent fraud,” that the revisions were being sold through a campaign of “deception and misrep- resentation.” These opponents labeled it a “mail-order” constitution, drafted (depending on which opponent was speaking) in Chicago by the Council of State Governments, in Washington by the Department of Health, Education, and Welfare, or in New York by the United Nations. To counter opposition arguments, Virginians for the Constitution prepared “fact sheets” which, in parallel columns, set out the opposition charges and the pro-ratification rebuttals. In a more general fashion, the proponents were able to appeal to conservative opinion by having at the fore of the campaign, state and local, unimpeachable conservatives, many of them active at the same time in the Byrd campaign. An amusing moment came when the chairman of the “Save our State Committee” of

Northern Virginia, an opposition group, challenged the revision propo-

A. E. Dick Howard 85

nents to a debate. The challenge was accepted, and, when the debate took place, the affirmative case for the so-called socialist constitution was put by no less prominent a conservative than James J. Kilpatrick, the nationally syndicated columnist. By the close of the campaign, endorsement for the new Constitution was overwhelming. Prominent political leaders of both major parties had lent their support. Almost all important statewide organizations backed its ratification, and while a few newspapers had voiced doubts about or opposition to the revisions, editorial support on a statewide basis was resounding. The Richmond Times-Dispatch, for example, declared that “Virginians who want to provide their state with a strong governmental framework on which to build for progress in the latter third of the 20th century will vote ‘Yes’ in the constitutional referendum next Tuesday.”13 The Roanoke Times called passage of the new Constitution “absolutely essential.”14 The Washington Evening Star urged its readers across the river to “[r]ally to this cause in the coming week, lest a priceless opportunity for advancement be lost.”15 On November 3, the new Constitution was overwhelmingly adopted. All four propositions were approved. The largest margin of approval went to Proposal No. 1, the main body of the Constitution, which received the assent of 72% of those who voted.16 Support for the Constitution was especially strong in Northern Virginia and in Tidewater. In Alexandria, for example, Proposal No. 1 carried by 84 percent of the vote, in Fairfax County, by 82 percent. In Tidewater the picture was similar; in Norfolk 82 percent of the voters approved Proposal No. 1. Such a strong showing at the two ends of Virginia’s urban corridor was not surprising. What was perhaps more unexpected was the high margins in the traditionally more conservative Valley of Virginia, where Proposal No. 1 garnered 85 percent of the vote in Harrisonburg and a remarkable 91 percent in Lexington. The areas of greatest weaknesses were some of the largely rural areas of Southside Virginia. Lunenburg County, for example, buried Proposal No. 1 with an almost two-to-one “no” vote, and the two debt questions fared even worse. Statewide, only nine counties and one city (Danville) rejected Proposal No. 1. The full measure of the success of the campaign for ratification is underscored when one tallies the results by congressional districts. With four questions on the ballot in ten congressional districts—a total of forty possible vote combinations—only one question lost in only one district (Proposal No. 4 lost in the Fifth Congressional

District, a Southside district).

86 Adopting a New Constitution

Successes and Failures among the States: The Comparative Experience in the Era of Virginia’s Revision That Virginia’s voters would approve a new constitution was not a foregone conclusion. Defeats of new constitutions in other states—perhaps the most publicized being that in Maryland in 1968—would make one cautious about predicting the success of any constitutional revision. That major political and civic leaders had endorsed Virginia’s new Constitution was no guarantee; the backing of a “who’s who” of such leaders in Maryland had not saved the proposed Maryland Constitution. The new Virginia charter was attacked on many of the same grounds, including regional government and governmental spending, which had been used in Maryland. One opposition pamphlet reminded its Virginia readers, “Marylanders have done it . . . Virginians can do it too.” Moreover, if Maryland’s proposed Consti- tution was hurt by extraneous events—notably the riots of April 1968 in Washington and Baltimore—Virginia’s political climate in 1970 was hardly uneventful, especially when there was a U.S. Senate race without precedent, featuring Senator Byrd running as an independent against nominees of the two major political parties. And while enough private money was raised to run a respectable informational campaign, money was tight enough that some important items had to be cut—there was, for example, no television advertising in Northern Virginia. Despite the problems, the final vote was overwhelmingly “yes.” A number of factors played a part in producing the highly successful outcome, and Virginia’s experience may usefully be compared with that of other states—especially those which sought to revise their constitutions around the time of the Virginia revision—to shed some light on reasons why constitutional revisions succeed or fail.17 To begin with, how the groundwork for revision is laid, and by whom, is a significant factor. Constitutional revision in Virginia was, from start to finish, a highly deliberative process. Having the groundwork laid by a blue-ribbon study commission meant that, when the General Assembly met, the issues which it would debate had already been sharply defined by the Commission’s report and commentary. Conscientious preparation may seem a simple enough goal to achieve,18 yet in New York and Rhode Island a lack of planning and issue-sharpening have been suggested as reasons for defeat of revised constitutions.19 In addition, both 20 conventions had an image of being dominated by politicians. Those who

A. E. Dick Howard 87

comprised the Virginia commission, on the other hand, were widely recognized as among the most talented, respected, and nonpartisan figures in the Commonwealth. Their prestige helped to put the General Assem- bly in an affirmative and responsive frame of mind when the legislators received the Commission’s report. There are two major methods by which states typically revise a constitution—by constitutional convention or by the state legislature. Either vehicle is usually preceded by a study commission. Whichever means, convention or legislature, is used, a keynote of the revision process must be political realism. One of the lessons to be gleaned from a study of constitutional revision among the states is that a new constitution can be killed by an overdose of partisan politics—partisanship that divides the revisors and voters alike. But a new constitution can also be killed by too little politics—a process which, through an excess of idealism or naïveté, is insulated from political reality. One of the simplest lessons the Virginia revisors learned was that it was dangerous to make unnecessary enemies. A proposed change should be weighed to be sure that the benefits to be derived sufficiently outweigh the cost in terms of alienation of those who may oppose the change. A change of largely theoretical value may not be worth the electoral price paid for making it. For example, many state constitutions contain unenforceable, hortatory language in their bills of rights.21 Reformers often scoff at such language and urge that it be removed.22 The reformers who comprised the Maryland convention did excise the hortatory language of Maryland’s Declaration of Rights. Having done so, they found themselves saddled with the opposition charge that the rights of Marylanders were being taken away.23 It is hard to conclude that the change—of theoretical value at best (and even that can be argued)—was worth the cost. Another rule often found in the textbooks is that only policy-making offices should be filled through popular election. Following this precept, the Maryland revisors stripped many of that state’s constitutional officers, such as the clerks and the registrars of wills, of their constitutional status. The price of this decision was the spawning of a vigorous and vocal source of opposition to the new Maryland charter in every courthouse in Mary- land.24 Not only did the local officials oppose the Constitution, but many citizens, especially in rural areas, considered it important that such officers be elected rather than be appointed by other politicians.25 Another costly move by the Maryland convention was the decision

not to require that a local referendum be held before legislative creation

88 Adopting a New Constitution

of regional governments.26 There are valid policy reasons why regional government should not invariably be subject to local veto, but it is evi- dent that the Maryland convention’s decision badly hurt the revision effort in Baltimore County.27 The regional government provision made it easy for opponents to appeal to racial fears in the area around Baltimore City, and the resulting negative vote in the county has been termed by one demographic analyst to be a principal cause of the statewide rejection.28 Ordinarily these suburbanites could have been relied on to support the constitution, just as did those in the Washington suburban counties of Montgomery and Prince George’s.29 In Virginia, by contrast, the revisors retained the philosophical language of the Bill of Rights, they avoided any direct assault on the constitutional status of local officers such as sheriffs and clerks (though making it possible through local referendum to abolish or alter such offices), and while recognizing the concept of regional government, they wrote in a requirement of referendum in the localities affected. As the Washington Post observed at the close of Virginia’s 1969 legislative session, “The political realism so painfully missing in retrospect in Maryland a year ago and so prominent in Virginia’s new effort gives the proposals a healthy chance of survival.”30 How are the prospects for success in constitutional revision affected by the form the revision process takes? Specifically, are there reasons to prefer a convention on the one hand, or legislative revision on the other? Having a prestigious study commission prepare a draft and then having the legislature refine the document in the perspective of their own understanding of the political process was one of the greatest strength of the approach to revision in Virginia. But Virginia’s experience may or may not be the best guide for other states. Much could be said about the relative merits of having revisions undertaken by conventions or having legislatures tackle the job. Conven- tions are thought to be more representative of the people, are frequently composed of highly able, civic-minded citizens, are less political (because they are less highly structured than are legislatures),31 are more focused on the task of constitutional revision (because they are called into being for that specific task), and are likely to be more willing to make fundamental changes.32 On the other hand, they may be out of touch with political reality or may be dominated by ambitious politicians. Commissions, being smaller, may be able to work faster, and they may have more expert

talent because they can be appointed from among the state’s ablest citi-

A. E. Dick Howard 89

zens. Commissions are commonly more acceptable to legislatures than wide-open conventions because their proposals can be vetoed by the legislature if it wishes.33 When the legislature, composed of politicians, has the final say, there is the risk, however, that the majority party will seek advantage for itself,34 or at least that the legislators as a body will try to gain advantage over other branches of government. Generalization about the relative merits of conventions or legislatures as revisors is difficult, because an examination of the behavior of conventions and legislatures in a number of states indicates that the circumstances of the particular state are crucial. In Maryland, to be sure, the convention operated in a political vacuum,35 producing a document that took insufficient account of what the people or the interest groups would think of their work. Though they produced an excellent model constitution, they lacked that very closeness to the people which is considered one of the major advantages of using a convention.36 The same tendency was present in the Connecticut convention, but more realistic delegates managed to curb the reformers and achieve a reasonable document which the voters accepted.37 In other states’ conventions, there has been the danger of partisanship. In Michigan, though the convention began in a bipartisan spirit,38 it ended with the Republicans, who formed a majority of convention delegates, agreeing among themselves on a constitution and producing a straight party line vote on the document.39 Though that document was approved, partisan conventions in New York and Rhode Island found the people repelled by their behavior.40 On the other hand, in such diverse states as Pennsylva- nia,41 New Jersey,42 and Hawaii43 conventions met in a bipartisan spirit, recognized the need to compromise in order to achieve success, and produced documents that satisfied the major interests in those states. Indeed, in Penn- sylvania, though the Republicans controlled the convention, the Republi- can president insisted on equal representation for Democrats on all convention committees.44 Strong, conciliatory leadership has been suggested as one reason compromise was possible in some of these states;45 conversely, weak leadership was a factor in producing a convention that bogged down in partisan wrongdoing.46 The representativeness of the delegates, their responsiveness to the constituency, and their willingness to compromise their own wishes and those of their parties in order to win others over to the revisions were factors in successful revision efforts by conventions in Mis- souri,47 Pennsylvania,48 and Hawaii.49 These revisions stand in contrast to

the unrepresentative character and consequent unresponsiveness of the

90 Adopting a New Constitution

Maryland convention and the partisanship displayed by New York and Rhode Island delegates.50 In Virginia the General Assembly proved that a legislature is not incapable of reform.51 Its members did not fall prey to the evils of partisanship. They put their understanding of the citizenry into the effort, deciding, after much debate, to eliminate the potentially divisive handicapped children and Capital City boundary amendments, which could have pro- voked sectarian and racial feelings respectively. The legislators restrained themselves from using the Constitution to reflect the desires of the lawmakers’ favorite interest groups. The members of the General Assembly approached their task with an understanding of the difference between constitution-making and ordinary legislating. It seems, then, that, given favorable conditions, either a convention or a legislature can undertake a successful constitutional revision. Equally, given the wrong conditions, either can fail. As one observer has noted:

With favorable prevailing winds and strong cooperative leadership, each structure appears capable of performing successfully in both the drafting and marketing stages.... Theoretical advantages, in brief, do not appear to have the political muscle that would make an extended comparative analysis of these structures very meaningful.52

The comparative lessons to be learned from other states’ revisions seem to lie not so much in the particular method chosen (though this can be crucial in a particular state) as in factors of leadership, both within the body that shapes the revision and in the state at large when the proposals are laid before the people. Political realism and a spirit of bipartisanship are important in creating an atmosphere of consensus. The absence of emotionally charged issues in Virginia made possible a consensus of political leadership backing the new Constitution. This spectrum of support was a key factor in the document’s success at the polls. Not within memory have political leaders of such divergent views—indeed, often the bitterest of enemies in the political arena—combined so cordially and publicly in a common political undertaking. The symbolism of the liberal, moderate, and conservative factions of both major parties uniting behind the revised Constitution could not be lost on anyone with even a passing understanding of Vir-

ginia’s political scene. As the Roanoke Times commented on the eve of elec-

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tion in 1970, “Surely if such arch political foes as Henry Howell and Mills Godwin can agree that constitutional changes are worthwhile, the rest of us can be certain that a yes vote is a vote for good government.”53 Support by the political leadership of both major parties is not a guarantee of success. The leaders of the major parties supported the reform effort in Arkansas54 and Maryland,55 yet the effort failed for other reasons. Nor is a consensus of support absolutely essential to victory. In Michigan, for example, the state’s Democrats strongly opposed the new Constitution for a number of reasons; for instance, because the Republican-dominated convention had apportioned the legislature so as to keep themselves in power.56 The neutrality of the Republicans in Hawaii,57 probably induced by such factors as provisions for collective bargaining by state employees,58 did not lead to defeat of that Constitution or even of that provision. In Michigan, leadership in the ratification drive by the popular new gover- nor, and convention vice-president, George Romney, may have overcome Democratic hostility. In Hawaii, the form of the ballot and the generally conciliatory nature of the convention may have offset any ill effects of the lack of general political consensus. Still, the lack of bipartisan support has undoubtedly influenced the vote in some states. For example, Republi- cans helped defeat the products of the Rhode Island59 and New York conventions,60 and the Democrats campaigned strongly against the ill-fated constitution drafted by the Republican-dominated legislature in New Jer- sey in 1944.61 Factors like bipartisan and grass roots political support, the endorsement of major newspapers of such disparate philosophy as the Washing- ton Post and the Richmond Times-Dispatch, and the deletion of disruptive controversial issues indicate that the compromises made by the Virginia constitution-makers were widely accepted. Proposed constitutions in some states have been defeated because of the opposition of important blocs of voters whose interests were not protected. Experiences of other states have shown that offending one of the major parties can hurt, and that local officeholders can have an important impact as well. Conserva- tion groups (New Mexico),62 the Civil Liberties Union (New York),63 and civic leaders and newspapers alienated by the self-interest shown by legislative draftsmen (Rhode Island)64 have also been instrumental in the defeat of proposed constitutions. Of course, the political and economic interests of a state have much to do with who takes part in drafting a constitution, and the relative strengths of each no doubt have an effect on

whether compromises are made.

92 Adopting a New Constitution

The support of political leadership at the local level is an important consideration in seeking electoral approval of a revised constitution. In Virginia, all five associations of constitutional officers—the clerks, the sheriffs and sergeants, the Commonwealth’s attorneys, the commissioners of revenue, and the treasurers—went on record in support of the new Constitution. Other local officials, such as councilmen, mayors, and supervisors, were often publicly active in support of the revisions. Added to these political voices were those of civic, business, labor, and other leaders, again not only at the state level but also in the counties and cities across the state. The result was a climate of support that tended to resolve, in favor of voting “yes,” the voters’ natural hesitations about constitutional revision.65 The value of grassroots support in Virginia contrasts not only with the Maryland experience, but also with the unsuccessful revision efforts in Arkansas, Rhode Island, and New Mexico, which appear to have been damaged by the lack of support of civil groups, local government officials, and government workers.66 An aggressive campaign for ratification was another important factor in the result in Virginia. An observer of the Maryland experience has noted that the campaign there tended to be intellectual and sober,67 not the sort of campaign likely to roll away the ennui with which most voters will regard a constitutional referendum.68 The Virginia proponents set out, like those in Hawaii,69 in the spirit that ignorance and apathy were likely in the end to be greater enemies than overt opposition. This was particularly a problem in Virginia because a commission and the legislature, rather than a more highly publicized convention, had drafted the document.70 An early start,71 organized along the lines of a statewide gubernatorial or senatorial campaign, and adequate (though by the standards of a statewide race for office, laughably modest) funding were com- ponents of the successful campaign in Virginia. A catalyst of Virginia’s referendum effort was the superb work of the local campaign committees. In some communities, one or more individuals were the spark plugs. In others, a local organization—oftentimes the League of Women Voters or the Jaycees—made the local campaign go. Some of the variation in votes from one community to another turned on predictable demographic characteristics, but in many cases a highly favorable vote in a community (especially in areas thought less receptive to innovation) was in good measure a function of an active local committee. The Virginia campaign also succeeded in getting more usable infor-

mation before the voters than is customary in a referendum effort. Not

A. E. Dick Howard 93

only was such a massive educational campaign probably without precedent in Virginia, a special effort was made throughout the campaign to translate the rather dry abstractions of constitutional revision into issues that touched the lives of individual citizens—education, environmental quality, consumer protection, and taxes. And there is reason to think that the central theme that evolved in the campaign—”Bring government closer to the people”—struck a responsive chord in citizens. In contrast, the Arkansas proponents never successfully translated the dry abstractions dealing with the structure of state and local government into terms the voters could understand. They never made the voters see that the new Constitution would mean something to them personally. Observers have assigned this as a major reason for the defeat in that state.72 Not only did the proponents in Virginia mount an effective campaign, but also the opponents of the revision never developed much popular support. In conservative Arkansas, the opposition was successful in confusing the voters with technical and insubstantial criticisms73 and in convincing them that the increased flexibility of government would lead to increases in taxes.74 Proponents committed the fatal error of respond- ing defensively to the charges rather than explaining the benefits to be derived from the new document.75 Opponents in Virginia tried similar tactics, but they did not succeed. One reason is that the proponents were prepared to meet and rebut opposition attacks. Exposing half-truths requires, of course, an effective way to get the message to the people. In Maryland, the opponents could charge that rights had been eliminated when they had merely been rearranged,76 or that the new Constitution would cost a lot of money77 when realistic estimates showed it would cost just a fraction of what they claimed,78 or that the new Constitution would enfranchise D.C. residents to vote in Maryland elections when an examination of the document would reveal the contrary.79 They made effective use of such charges because of the inability of the proponents rapidly to respond.80 In Virginia, by contrast, the proponents met opposition charges with fact sheets and other materials promptly put in the hands of local campaign committees, speakers, editors, and others, to rebut the attacks. The Maryland opponents were also able to wrap themselves in a cloak of conservatism without fear of contradiction by conservative state leaders, since few Maryland leaders had unquestioned conservative creden- tials. In Arkansas, the conservative American Independent Party opposed

the new document. This not only drained off support from the far right

94 Adopting a New Constitution

but also led many moderately conservative Democrats to tone down their support in order to avoid losing votes to AlP candidates.81 In Virginia, on the other hand, “conservative” opponents of the “socialistic” Constitution were confronted by men like Mills Godwin and James J. Kilpatrick, men with whom conservative voters could readily identify. Timing has been cited as an important factor in the success or failure of a number of recent revisions. Hostility over student uprisings at the University of Hawaii is thought to be one reason the eighteen-year old vote failed adoption in that state,82 while the first collection of a newly imposed income tax83 and riots in Washington and Baltimore following Martin Luther King’s death have been considered important ingredients in the Maryland debacle84 The proposed Arkansas Constitu- tion faced a particularly fortuitous and lethal circumstance when labor campaigned heavily against repeal of a full-crew law that appeared on the ballot with the new Constitution. Labor voters were likely told to vote “no” on all the propositions of the complex ballot, with the result that not only the full-crew law but also an unopposed, widely supported franchise tax measure was defeated overwhelmingly.85 By contrast, in Michi- gan, timing the campaign so that the popular new Governor Romney could rally voters to the new Constitution in the first months of his incumbency was undoubtedly an important factor in the success of the referendum in that state. The length of time between completion of the document and the vote has sometimes been thought significant. One observer states that the two-month period in Pennsylvania meant that opponents had no time to organize, while the four-month period in Maryland enabled them to mount a more sophisticated effort.86 Such conclusions ought to be regarded with caution. The opposition in Maryland was never well organized, though their arguments were effective.87 The lapse of time between drafting a constitution and having the people vote on it can be to the advantage of either proponents or opponents, depending on who makes the best use of the time. In Virginia, the proponents of the new Constitution were spared the impact of such unhappy events as urban riots, but they had reason to worry about the fact that in the fall elections there was a three-way Sen- ate race, with Senator Byrd running as an independent, and that Byrd refused to take any public position on the proposed revisions. Having the Senator silent on a document that was at odds with his father’s “pay-as-

you-go” philosophy naturally made the proponents uneasy.

A. E. Dick Howard 95

The backers of the new Virginia Constitution, however, were successful in enlisting prominent Byrd supporters to endorse it, both on the statewide level (where Byrd’s campaign chairman, Mills Godwin, was also honorary chairman of the constitutional referendum campaign), and at the local level (where local constitutional campaign committees often had a Democrat, a Republican, and a Byrd supporter as cochairman). Thus the coincidence of the constitutional referendum with fortuitous external events had little harmful effect in Virginia. The other aspect of timing— the long lapse between legislative approval in the spring of 1970 (a second approval, for the legislature had given its first approval in the spring of 1969) and the vote in November—the proponents turned to their advantage by using the summer months to lay a careful groundwork and the weeks after Labor Day to campaign aggressively. The form of the ballot was unquestionably a factor in the outcome in Virginia. There is general agreement that putting a revised constitution on the ballot as a single question was a central factor in the defeat of the proposed constitution in New York. Anthony Travia, president of the New York convention, insisted that aid to parochial schools be included and that the document be voted on as a single question on the ballot. He argued that the parochial school aid provision alone would capture 40 percent of the vote.88 So controversial was the aid provision, however, that issue is generally acknowledged to have hurt more than any other.89 The New York Times reflected what proved to be the prevailing view when, before that state’s referendum on the revised charter, it carried an editorial entitled, “Take It or Leave It: We Leave It.” The editorial explained:90

As virtually its final act, the Constitutional Convention decided last night to offer New Yorkers the new Constitution on a take- it-or-leave-it basis. The voter must accept it or reject it in its entirety. To our regret, the considerable improvements this document does make in the existing constitution are insufficient in importance to offset a few features so highly objectionable that we can only recommend that the proposed constitution be rejected at the polls in November.

In Virginia, by contrast, the General Assembly sought to identify those questions that might be most controversial and to make it possible for the people to vote separately on them. Moreover, separating the ques-

tions on the ballot avoided the “take-it-or-leave-it” stigma and thus made

96 Adopting a New Constitution

it less likely that the voters would approach the revisions in general in a mood of distrust or apprehension. Take-it-or-leave-it ballots have met with occasional success, as shown in Michigan, where voters approved a constitution submitted in that form in 1963. But the experience of New York, Maryland, and Rhode Island indicates that many citizens are likely to vote against an entire constitution when they dislike a particular provision rather than vote for it because of the things they like. Not only in Virginia but also in Florida, Hawaii, Pennsylvania, and Connecticut, submission of more than one question led to adoption of most or all of the revisions.91 The road to constitutional revision is rarely without its perils. To some extent the lessons learned in one state are of value in another, yet every state has its own unique political climate that calls for a tailored approach. Revisors will want to consider the form which the revision process will take (convention or legislature), which changes are really worth fighting for, how the revision will appear on the ballot, how the state’s leadership and political forces can be enlisted in seeking ratification, how a campaign should be organized to reach the grassroots level, how to combat the twin evils of voter apathy and opposition distortions, and when all is said and done, how to ensure that a state’s fundamental law is revised and presented in such a way that in reality it reflects the best aspirations of the state’s citizenry.

Could It be Done Today?

If the decision were taken to rewrite a state constitution today, how would the situation differ from that confronting Virginia’s constitution-makers in 1970? As a specific example, let me consider a hypothetical attempt to rewrite Virginia’s constitution today. In many ways, Virginia is not the place it was in 1970. Its population has grown from about 4,650,000 in 1970 to about 7,3000,000 in 2002.92 Republicans, a small minority in the General Assembly in 1970, now control both the houses of the legislature. Northern Virginia, the anchor of the state’s Urban Corridor, has exploded in growth, partly because of the advent of the high-tech economy in the 1990s. No longer is it possible to speak of Virginia in the twenty-first century, as V. O. Key did in 1949, as a “political museum piece.”93 Anyone who might seek to revise Virginia’s Constitution today would

face a landscape vastly changed from the one, daunting as it was, which

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confronted the revisors who carried the day in 1970. What are some of those challenges a generation later? What would constitutional reformers in Virginia’s new century be obliged to consider as they set about their task, not only of drafting a constitution, but also of negotiating the shoals of legislative politics and of statewide referendum?

Partisanship

Party politics in 1970 were very much in flux. The Byrd Machine was breathing its last, the first Republican governor since the nineteenth century was in the statehouse, and U.S. Senator Harry F. Byrd, Jr., was running for reelection as an independent. By and large, during this transi- tional period, Virginia’s politics had a moderate, indeed progressive, mode. A fair degree of consensus was possible in fashioning state policies on education, economic development, fiscal policies, and other essential issues of the day. A generation later, partisanship is in the air. Consider, for example, the consequences of legislative redistricting. In Virginia, as in most states, the party that holds the majority of seats in the state legislature draws district lines to confer an advantage on that party. Virginia’s redistricting in 2002 is a perfect case in point. By adroit districting, the Republican majority created as many “safe” seats as possible. Creating safely Republi- can districts required, of course, conceding other districts, fewer in number, to the Democrats. The result has been further to polarize politics in legislative elections and thus in the General Assembly itself. In districts where the general election no longer matters, the real contest, if any, is in the primaries. There the issues are likely to be fought out further from the mainstream of two-party politics. In the spring of 2003, several of the most senior and influential Republican legislators found themselves hard pressed by challengers on their party’s right wing.94 In a state legislature, in which more and more seats are “safe,” there tends to be a greater political and ideological gulf between Democratic and Republican members. Such polarization of politics, both in elections and in the legislative process, would surely weigh heavily on those who might contemplate a revision of Virginia’s Constitution. The chances of finding common ground, hard enough in enacting legislation, would surely be all the harder in trying to shape the Commonwealth’s funda-

mental law.

98 Adopting a New Constitution

Special Interests and Single-issue Politics Interest groups are as old as American politics—James Madison warned of the dangers of “faction”95—but recent years have seen their influence grow, both in state and national politics. The more complex the legislative process, and the higher the stakes, the more active special interests become. In Virginia, many interest groups are based in the business community (homebuilders, bankers, automobile dealers, etc.), but they include many other groups, such as teachers and public employees. The adoption of the 1971 Constitution brought annual sessions of the General Assembly. One consequence is that lobbying takes place throughout the year, during legislative sessions and beyond.96 Legislative staffs have grown, creating more occasions for interest groups to be involved in the making of policy. With more attention paid, more resources deployed, and more money at stake, what might formerly have been legislative detail becomes the deal-breaker of a delicate compromise.97 Their adversarial instincts whetted by legislative lobbying, interest groups could become a particular challenge for would-be constitutional revisors. Finding the kind of common ground that successful revision requires would likely be more difficult than in 1970. The power of special interests is reinforced by the phenomenon of single-issue politics. Some voters and interest groups judge a candidate for office solely by the position he or she takes on the single issue about which that voter or group cares above all others. This phenomenon can be found on both the left and right wings of American politics. It can be those opposed to abortion or those defending a woman’s right to choose; it can be those who want gun control or those who invoke the Second Amendment. Candidates know how difficult it is to persuade a single- interest voter to look past the one issue to the larger scene. Similarly, it is easy to imagine the drafting and referendum process in which a proposed constitution would, in the minds of some voters, be judged solely by whether it embraces their favored position. Single-interest groups would make every effort to have the draft constitution incorporate their views and, if it did not, then oppose it in referendum.

Money No one would embark on a campaign to adopt a revised Constitution with-

out thinking about money—lots of it. It was 1973 when a candidate for Governor of Virginia, Mills Godwin, first spent more than $1,000,000.98 In

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1981, the two parties spent between them $5.2 million in the governor’s race. Twenty years later, in 2001, the two parties spent $31.4 million.99 In June 2003, Governor Mark Warner, at a dinner in Northern Virginia, raised $1 million for his political action committee, setting a record for a single event hosted by a Virginia governor.100 Spending on legislative races has similarly soared. Senator John H. Chichester spent $33,000 for his first race for the state Senate in 1977; in 2003, he was projecting to spend $235,000.101 A member of the House of Delegates from Albemarle County, Rob Bell, facing no opponent in the forthcoming November 2003 general election, had raised $111,161 by June and had major fund-raising events ahead of him.102 Much of the money flowing into American politics comes from political action committees (PACs). In Virginia, PACs are becoming increasingly important. Boutique PACs have come into being, their purpose being to help lawmakers of a particular political or ideological bent.103 Former House of Delegates Speaker Vance Wilkins, Jr., helped foster the idea of leadership PACs; his Dominion Leadership Fund disbursed over $687,000 and helped the Republicans gain control of the General Assembly in 1999.104 The rise of PACs has undercut the role of the political parties as common ground for politicians. A lobbyist for the Virginia Automobile Deal- ers Association said that the politics of money had changed so much in his sixteen years of lobbying that he was foregoing contributions to the state parties and instead targeting donations.105 Constitutional reformers of the new century would need to ponder the lessons gleaned from spending on constitutional initiatives in other states. In California in one year (1998), $256 million was spent by groups on ballot question campaigns.106 It is difficult to document the claim that the side that spends the most money necessarily prevails; passion and effort, including grassroots campaigning, count for something. But there are several studies showing that, in initiative campaigns involving high levels of spending (over $250,000 for each side), the side spending the most money is virtually guaranteed to succeed if that side opposes the initiative.107 Such studies would be sobering to those considering a try at rewriting Virginia’s Constitution.

Virginia’s 2002 Sales Tax Referendum

In November 2002, citizens in Northern Virginia and in Hampton Roads were asked to vote on whether the sales tax in those regions should be

100 Adopting a New Constitution

increased by one-half and 1 percent, respectively. The revenues were to be used for transportation improvements. Governor Mark Warner, a Demo- crat, led the campaign, enlisting substantial bipartisan support, including Senator John Warner and Congressman Tom Davis.108 Prominent members of the business community supported the tax, as did many major newspapers. A well-organized and -financed campaign spent $4 million in support of the referendum.109 An odd alliance opposed the tax proposal—environmentalists, who feared development and urban sprawl, and antitax conservatives. Alto- gether these groups spent less than $200,000.110 But what they lacked in money, they made up for in an aggressive grassroots campaign depending on e-mail networks and energized volunteers. When the results were in, the proposals were defeated.111 How to explain the result? Environmentalism and antitax sentiment played an obvious role. But more appears to have been involved, namely a distrust of the politicians who supported the tax. A poll con- ducted shortly before the referendum reported that fully two-thirds of voters believed that the proponents would break their promise to use the tax proceeds solely for transportation.112 Many voters, seeing developers among the biggest contributors to the campaign, decided that the tax would be little more than a subsidy for those developers. One commentator saw the vote as bespeaking a distrust of government itself:113

There was no unifying message in the voters’ discontent with business as usual. Except for this: there was an underlying frus- tration with elected leaders from top to bottom—an impatience, if you will, at representative governments that don’t work smart anymore, especially on land development, taxes, commuting, and other big issues of the day.

The defeat of the sales tax proposal, despite ample funding for the campaign and the support of much of the state’s political and business establishment, is an obvious note of caution to anyone who might wish to undertake constitutional revision in Virginia. One such defeat, however, should not be taken as making victory impossible under any and all circumstances. On the same day that the sales tax proposal died, Virginia voters readily approved over $1 billion in bonds for college construction 114 and parks. The voters also approved a state constitutional amendment

A. E. Dick Howard 101

involving the use of DNA evidence in criminal appeals.115 Indeed, amendments to the Constitution of Virginia are routinely approved, partly because they usually are uncontroversial.116

Leadership

Ultimately, no factor is more critical to the success of a constitutional revision effort than leadership. Americans often realize how fortunate we are to have been blessed with the inspired and dedicated leaders who met at Philadelphia in 1787 to draft the nation’s Constitution and who then led the successful campaign for its ratification by the states. In the years since the founding, Virginia seems often to have been fighting a rearguard action—in the era of Reconstruction, for example, or more recently, in crafting “massive resistance” against school desegregation. However, Virginia in the 1960s and 1970s saw a genuinely remarkable cluster of leaders at its helm. These same leaders, seasoned in government, business, law, and the academy, played key roles in inspiring the idea of a new Virginia Constitution, in giving it content, and in carrying it to the people. Governor Miles E. Godwin, Jr., called for the creation in 1968 of the Commission on Constitutional Revision. Of Godwin, it has been said, “Few political leaders have equaled Mills Godwin in comprehending the anatomy of Virginia politics or in translating into reality the aspirations of their constituents.”117 The only man twice elected by Virginia’s voters to be their governor, he achieved a doubling of funding for public education, laid the basis for a statewide system of community colleges, and vastly expanded state support for higher education. His skill in leading the campaign for a major bond issue for higher education and mental health in 1968 anticipated the success, two years later, of the referendum on the new Constitution. As a biographer has concluded, “In many respects Godwin’s first administration provided a textbook example of the art of leadership.118 When the Commission on Constitutional Revision assembled, around the table sat members who brought to their work a wealth of experience and insight. Colgate W. Darden, Jr., had been a farmer, a businessman, a lawyer, a state legislator, a member of Congress, Virginia’s Governor, the President of the University of Virginia, and a delegate to the United Nations. Fond of

quoting Thomas Jefferson, Darden, like Jefferson, believed in the link

102 Adopting a New Constitution

between education and self-government by a free people. An outspoken opponent of “massive resistance,” Darden called education the “engine of civilization.”119 As President of the University of Virginia, he began the transformation of that venerable institution from a rather exclusive preserve of privilege to the dynamic capstone of education conceived by its founder, Jefferson. Within the 1968 commission, he led the way to establishing education as being among the Commonwealth’s fundamental rights.120 Lewis F. Powell, Jr., also a member of the Commission on Constitu- tional Revision, was a nationally respected Richmond lawyer who had served as President of the American Bar Association. Soon after the adoption of the Virginia Constitution, Powell was appointed to the United States Supreme Court. Fellow justices have paid glowing tribute to the qualities of mind and character he brought to that tribunals’s deliberations.121 So central did Powell become to the work of the Court during his tenure that a civil liberties leader called him “the most powerful man in America.”122 Ever careful to listen to all perspectives, Powell was especially influential when the Court struggled with the “hard legal issues that lie at the center of moral and political debate.”123 In Powell, legal acumen and personal qualities came together in a way that made him such a respected jurist—and so important to the work of Virginia’s commission.124 Another memorable figure who served on the Commission on Con- stitutional Revision was Hardy Cross Dillard. His life embraced more than one career. Steeped in the tradition of the humanities, Dillard was professor, then Dean, at the University of Virginia’s Law School.125 A West Point graduate, he directed the training of military government officers during World War II and later served as legal adviser to the High Com- missioner of Germany. In 1970 he became a judge of the International Court of Justice at the Hague. Yale law professor Myres McDougal spoke for many when, of Dillard, he said, “He was teacher to all of us.”126 Virginia’s leading civil rights lawyer, Oliver W. Hill, served on the revision commission. In 1948, Hill was the first African American elected to Richmond’s City Council. Active in the NAACP’s long campaign against school segregation, Hill became the lead attorney in the Prince Edward County case, one of the five cases combined by the United States Supreme Court as Brown v. Board of Education in 1954. In 1999 Presi- dent Clinton presented Hill, then ninety-two, with the nation’s highest civilian honor, the Presidential Medal of Freedom.127 Hill’s presence on

the constitutional revision commission symbolized the prospect that, in

A. E. Dick Howard 103

discarding the Commonwealth’s 1902 Constitution (a classic post-Recon- struction document that institutionalized both the poll tax and school segregation), Virginia was on the verge of a new and more promising path. Still other commission members could be mentioned, but these several examples surely suggest that the revisors of Virginia’s Constitution were no ordinary lot. By the time the proposed new Constitution went to referendum in 1970, Virginia had elected its first Republican government since Recon- struction, Linwood Holton. Holton brought a special brand of decency to the Governor’s Mansion. Declining to fight federal court school desegregation orders, Holton made front-page news throughout the nation when he escorted his thirteen-year-old daughter to a predomi- nantly black Richmond high school. The repudiation of massive resistance could not have been more clear. J. Harvie Wilkinson III (later a federal court of appeals judge) summed up Holton’s contributions: “a new air of openness in state government, two-party democracy in action, and, above all, racial understanding through personal tolerance and good will.”128 It is fitting that it was Holton who asked Professor Howard to organize the committee that campaigned successfully for the new Con- stitution’s ratification. The leaders who coalesced around the proposed Constitution of Vir- ginia were not giants. Their era was not some kind of golden age. Those years saw more than enough political venality, petty politics, and social dislocations to go around. But that era did prove to be a propitious moment for constitutional change, and the Commonwealth’s leaders seized that moment. Decades later, could Virginians do it again? Virginia does not lack for leadership, either in the public or private sector. But reviewing the special qualities that came to the fore during the 1969–70 constitutional revision effort, one can see that it would be no small challenge to bring together such a talented and dedicated team.

In sum, anyone who sets out today to revise Virginia’s Constitu- tion—or that of any other state—must ponder the considerable challenges. Those include partisanship, single-issue politics, the difficulty of finding common ground, the power of money, popular discontents and distrust, and the need for inspired leadership. The lesson of 1970 is that, given the right combination of circumstances, it can be done. The cau- tionary note sounded by the events of the years since 1970 is that it

would not be easy.

104 Adopting a New Constitution

Notes

1. Jefferson to James Madison, September 6, 1789, The Papers of Thomas Jefferson, vol. 15, ed. Julian P. Boyd (Princeton: Princeton University Press, 1950), 395–96. 2. Jefferson to Samuel Kercheval, July 12, 1816, The Writings of Thomas Jefferson, vol. 10, ed. Paul Leicester Ford (New York: G. P. Putnam’s Sons, 1892–1899), 43. 3. Albert L. Sturm, Thirty Years of State Constitution-Making, 1938–1968 (New York: National Municipal League, 1970). 4. On the 1901–1902 Convention, see Ralph C. McDanel, The Virginia Constitu- tional Convention of 1901–1902 (Baltimore: The Johns Hopkins University Press, 1928); Wythe W. Holt, Jr., “The Virginia Constitutional Convention of 1901–1902,” Virginia Magazine of History and Biography 76 (1968): 67–102. Earlier revisions took place as a result of constitutional conventions in 1829–30, 1850–51, and 1867–68. For an account of the 1829–30 Convention, see A. E. Dick Howard, “‘For the Common Benefit’: Con- stitutional History in Virginia as a Casebook for the Modern Constitution-Maker,” Vir- ginia Law Review 54 (1968): 816–902. 5. Mills E. Godwin, Governor of Virginia, Address to the General Assembly, 10 January 1968, S. Doc. No. 1. 1968 Sess. For an evaluation of Governor Godwin’s administration, see J. Harvie Wilkinson, “The Godwin Years,” The Commonwealth (November 1969): 36. 6. H. J. Res. No. 3, 1968 Virginia Acts of Assembly, 1568. 7. The members of the Commission in addition to Governor Harrison, were Albert V. Bryan, Jr., George M. Cochran, Ted Dalton, Colgate W. Darden, Jr., Hardy Cross Dil- lard, Lewis F. Powell, Jr. These included two former governors of Virginia, a past president of the American Bar Association (later to be named to the Supreme Court of the United States), a law school dean (subsequently to become a Justice of the World Court at the Hague), and one of Virginia’s leading civil rights lawyers. 8. For a more detailed discussion of the Commission’s work and procedures, see Commission on Constitutional Revision, The Constitution of Virginia: Report (Richmond, 1969). 9. Editorial, Washington Post, 26 April 1969, sec. A, p. 10. 10. For a study of the Maryland experience, see John P. Wheeler, Jr., and Melissa Kinsey, Magnificent Failure: The Maryland Constitutional Convention of 1967–1968 (New York: National Municipal League, 1970). 11. See notes 88–91 and accompanying text. 12. Editorial, Farmville Herald, 7 October 1970. 13. Editorial, Richmond Times-Dispatch, 28 October 1970, sec. A, p. 10. 14. Editorial, Roanoke Times, 18 October 1970, sec. A, p. 6.

15. Editorial, Evening Star (Washington), 27 October 1970, sec. A, p. 12.

A. E. Dick Howard 105

16. Questions No. 3 and 4, the proposals dealing with general obligation bonds and revenue bonds respectively, were approved by 66 percent and 65 percent of the voters. Pro- posal No. 2, to delete the prohibition on lotteries, was affirmed by 63 percent of the voters. 17. For a superb example of a study from this era, see John P. Wheeler, Jr., and Melissa Kinsey of the rejection of a new Constitution for Maryland. J. Wheeler and M. Kinsey, Magnificent Failure: The Maryland Constitutional Convention of 1967–68 (1970) [hereinafter cited as Wheeler]. Other studies include: R. Connors, The Process of Con- stitutional Revision in New Jersey: 1940–1947 (1970) [hereinafter cited as Connors]; E. Cornwell and J. Goodman, The Politics of the Rhode Island Constitutional Convention (1969) [hereinafter cited as Cornwell], M. Faust, Constitution Making in Missouri: The Convention of 1943–1944 (1971) [hereinafter cited as Faust]; N. Meller, With an Understanding Heart: Constitution Making in Hawaii (1971) [hereinafter cited as Meller]; W. Nunn and K. Collett, Political Paradox: Constitutional Revision in Arkansas (1973) [hereinafter cited as Nunn]; A. Sturm, Constitution-Making in Michigan 1961–62 (1963) [hereinafter cited as Sturm, Michigan]; G. Wolfe, Constitutional Revi- sion in Pennsylvania (1969) [hereinafter cited as Wolfe]; McKay, Constitutional Revision in New York State: Disaster in 1967, 19 Syracuse Law Review 207 (1968) [hereinafter cited as McKay]. 18. See Sturm, Thirty Years, 98. 19. Ibid. at 103. Discussions of the New York experience include McKay, “Consti- tutional Revision in New York State: Disaster in 1967,” 19 Syracuse Law Review 207 (1968); Fuld, The Court of Appeals and the 1967 Constitutional Convention, 38 NYSBJ 327 (1966); Kaden, The People No! Some Observations on the 1967 New York Constitutional Convention, 5 Harvard Journal on Legislation. 343 (1968); Nunez, New York State Consti- tutional Reform—Past Political Battles in Constitutional Language, 10 William & Mary Law Review 366 (1968); Sherry, The New York Constitutional Convention: An Opportunity for Futher Court Structural and Constitutional Reform, 18 Syracuse Law Review 542 (1967); Vanden Heuvel, Reflections on Con-Con, 40 NYSBJ 261 (1968). 20. Sturm, Thirty Years, 103; Cornwell, 80; McKay, 215–16, 220–21. 21. See Robert B. Dishman, State Constitutions: The Shape of the Document (New York: National Municipal League, 1968), 47–49. An example of such language is Article I of the Maryland Constitution: “That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole, and they have at all times the inalienable right to alter, reform or abolish their form of government in such manner as they may deem expedient.” 22. Ibid., 49. 23. Wheeler, 202. 24. Ibid., 5. 25. Ibid., 202–03. 26. Ibid.

27. Ibid., 231, 234.

106 Adopting a New Constitution

28. Ibid., 5. Sturm, Thirty Years, 115. The Maryland Convention has captured the imagination of many writers. In addition to Wheeler, see, for example, Robert J. Mar- tineau, “Maryland’s 1967–68 Constitutional Convention: Some Lessons for Reformers,” Iowa Law Review 55 (1970): 1196–1232; Thomas G. Pullen, Jr., “Why the Proposed Maryland Constitution Was Not Approved,” William and Mary Law Review 10 (1968): 378–92. 29. Wheeler, 231. 30. Editorial, Washington Post, 26 April 1969, sec. A, p. 10. 31. Meller, 142. 32. Sturm, Thirty Years, 92. 33. Ibid., 92–93. 34. Connors, 88–89, 110–11. 35. Wheeler, 6, 51, 156–57. Wheeler cites the failure to compromise with political reality as a major reason for the defeat. Ibid., 214–15. 36. See Charles Thone, “A Constitutional Convention: The Best Step for Nebraska,” Nebraska Law Review 40 (1961): 596, 602. 37. Sturm, Thirty Years, 94. 38. Sturm, Michigan, 54. 39. Ibid., 251. For discussions of the Michigan experience, see Melvin Nord, “The Michigan Constitution of 1963,” Wayne Law Review 10 (1964): 309–67; “The Proposed Constitution: The Prose and Cons of It,” Michigan State Bar Journal 42 (1963): 10–19. 40. Sturm, Thirty Years, 97–98. 41. Wolfe, 30, 56. 42. Connors, 193. 43. Meller, 79. 44. Wolfe, 30. For another discussion of the Pennsylvania Convention, see M. Nel- son McGeary, “Pennsylvania’s Constitutional Convention in Perspective,” Pennsylvania Bar Association Quarterly 41 (1970): 175–88. 45. Connors, 200; Meller, 53–55; Wolfe, 38, 56. 46. McKay, 214. 47. Faust, 164–66. 48. Wolfe, 42, 55–56. 49. Meller, 143. 50. See text at notes 33–34, 38. 51. Compare Wheeler, 6–7. 52. Connors, 200.

53. Editorial, Roanoke Times, 1 November 1970, sec. A, p. 6.

A. E. Dick Howard 107

54. Nunn, 118. Democrats, however, were not enthusiastic. 55. Wheeler, 3. 56. Sturm, Michigan, 251–52. 57. Meller, 129. 58. Ibid., 114. 59. Cornwell, 79. 60. McKay, 216. 61. Connors, 89–91. 62. Sturm, Thirty Years, 115. The proposed New Mexico Constitution is discussed in “Student Symposium—The New Mexico Constitutional Convention 1969,” Natural Resources Journal 9 (1969): 422–29. 63. McKay, 221. 64. Cornwell, 80; Sturm, Thirty Years, 98. 65. In the one suburban area in Virginia whose local government was hostile, Chesterfield County, the referendum just barely passed. 66. Sturm, Thirty Years, 98 (Rhode Island), 115 (New Mexico); Robert W. Meri- wether, “The Proposed Arkansas Constitution of 1970,” Nebraska Law Review 50 (1971): 600, 620. 67. Wheeler, 141, 194. 68. Ibid., 214. 69. Meller, 128; Sturm, Thirty Years, 96–97. 70. Sturm, Thirty Years, 92; Thone, “A Constitutional Convention,” 596, 601–02 71. In contrast to Maryland and Arkansas, where planning the campaign for ratification only began after the convention “which delayed the Maryland campaign and gave the opposition the uncontested field for too long a time.” Wheeler, 214. See Nunn, 116. 72. Nunn, 174. See also Meriwether, “The Proposed Arkansas Constitution,” 600, 621. Other accounts of Arkansas’ ill-fated constitutional revision include Walter H. Nunn, “The Commission Route to Constitutional Reform: The Arkansas Experience,” Arkansas Law Review 22 (1968): 317–39; Robert Al Leflar, “Constitutional Revision in Arkansas,” Arkansas Law Review 24 (1970): 155–61. 73. Nunn, 156–58. For example, one “objection” was that the new constitution did not specify the meeting place of the legislature. Ibid., 157. 74. Ibid., 159–60. 75. Ibid., 158–59. 76. Wheeler, 202. 77. Ibid., 198–200.

78. Ibid., 201.

108 Adopting a New Constitution

79. Ibid., 207. 80. Ibid., 192, 214. 81. Nunn, 145–47. 82. Meller, 131. At the 1969 special session of Virginia’s General Assembly, a proposal to put the question of voting at age eighteen on the ballot came close to being adopted. But after some college students picketed the State Capitol on an unrelated matter, Vote-18 failed in the Senate by a vote of nineteen to twenty. 83. Wheeler, 201. 84. Ibid., 207–08. 85. Nunn, 140. 86. Wolfe, 54. See generally Sturm, Thirty Years, 103–04. 87. Wheeler, 193. 88. McKay, 221. 89. Ibid., 213. 90. Editorial, New York Times, 27 September 1967, p. 42. 91. Sturm, Thirty Years, 103. 92. Virginia Statistical Abstract (Charlottesville, VA: University of Virginia Center for Public Service, 2000). 93. V. O. Key, Southern Politics (New York: Alfred A. Knopf, 1949), 19. 94. See Michael D. Shear, “Incumbents Face Foes Who Stress Core Republicanism,” Washington Post, June 5, 2002. 95. Federalist No. 10. 96. John T. Whelan, “Virginia: A New Look for the ‘Political Museum Piece,’” in Ronald J. Hrebenar and Clive S. Thomas, eds., Interest Group Politics in Southern States (Tuscaloosa: University of Alabama Press, 1992), 92. 97. For an interesting account of how an array of special interests undermined an attempt at constitutional revision, see Gerald Benjamin, “The Mandatory Constitutional Convention Question Referendum: The New York Experience in National Context,” 65 Albany Law Review 1017 (2002): 1042. 98. Larry Sabato, Virginia Votes, 1975–78 (Charlottesville, Va.: University of Virginia Institute of Government, 1979), 71. 99. Larry J. Sabato, Virginia Votes: 2001 Gubernatorial Elections in Virginia: The Return of Two Party Competition (Charlottesville, Va.: Center for Governmental Studies, 2001), table 26. 100. R. H. Melton, “Fundraiser by Warner Breaks Record,” Washington Post, June 18, 2003. 101. Michelle Boorstein, “Race Points Up GOP Divisions,” Washington Post, June 5,

2003.

A. E. Dick Howard 109

102. Bob Gibson, “Bell Takes Lead in Fund Raising,” Daily Progress (Charlottesville), June 5, 2003. The Virginia Public Access Project reported that a total of $14,786,406 was spent by candidates in the general election for members of the House of Delegates in 2001. See VAPA’s database at www.vapa.org. 103. R. H. Melton, “Campaign Costs Soar, Prompting Va. Power PACs,” Washing- ton Post, June 2, 2003. 104. Ibid. 105. Ibid. 106. Elizabeth Garrett and Elisabeth Gerber, “Money in the Initiative and Referen- dum Process: Evidence of Its Effects and Prospects for Reform,” in M. Dane Waters, ed., The Battle Over Citizen Lawmaking (Durham, N.C.: Carolina Academic Press, 2000), 73. 107. Ibid., 79. 108. A successful venture capital businessman, Mark Warner was elected as Gover- nor of Virginia in 2001. A former Secretary of the Navy, John Warner was elected in 1996 to his fourth term in the U.S. Senate. In addition to leadership roles as a member of Con- gress, Tom Davis was elected in 1998 as chairman of the National Republican Congres- sional Committee. 109. Larry J. Sabato, “The 2002 Elections, Virginia: Eye of the Hurricane” (unpub- lished), 9. 110. Ibid. 111. R. H. Melton, “N. Va. Rejects Rise in Sales Tax,” Washington Post, November 6, 2002. In Northern Virginia, the sales tax proposal was defeated by 55 percent to 45 percent. See Commonwealth of Virginia, “November 5th, 2002 General Election,” sbe.vip- net.org/nov2002/c_13_UUU.htm. In Hampton Roads, the referendum was defeated by a nearly 2-to-1 margin. Louis Hansen, “Voters Turn Transit Plan into Road Kill,” Virgin- ian-Pilot (Norfolk), November 6, 2002. 112. Louis Hansen and Debbie Messina, “Referendum Defeated by 2-to-1 Margin,” Virginian-Pilot (Norfolk), November 6, 2002. 113. R. H. Melton, “Voters’ Real Message Was a Call for Smart Solutions,” Wash- ington Post, November 14, 2002. 114. Nearly 73 percent of those who voted favored the bond issue for higher education, and nearly 69 percent voted “yes” for bonds for state parks. See sbe.state.va.us/ web_docs/election/results/2002/nov/. Proponents, calling themselves Foundation 2002, included the political elite of both parties, as well as business and education leaders. See Jeff E. Schapiro, “Bond-Issue Vote Critical to Colleges,” Richmond Times-Dispatch, Octo- ber 27, 2002. 115. The proposed amendment was approved by almost 73 percent of those voting. See website cited in note 114, supra. 116. Of 45 proposed constitutional amendments placed on the ballot since 1970, thirty-seven have been approved, and eight defeated. State Board of Elections, “Official Elec-

tion Results: Proposed Amendments to the Constitution of Virginia” (revised June 17, 2003).

110 Adopting a New Constitution

117. James L. Bugg, Jr., “Mills E. Godwin, Jr.,” in Edward Younger, ed., The Gover- nors of Virginia: 1860–1978 (Charlottesville, VA: University of Virginia, 1982), 373. 118. Ibid. 377. On Godwin’s career, see M. Carl Andrews, No Higher Honor: The Story of Mills E. Godwin, Jr. (Richmond, Va.: Dietz Press, 1970). 119. See J. Y. Smith, “Ex-Va. Governor, University Head Colgate W. Darden, Jr., 84, Dies,” Washington Post, June 10, 1981. 120. In World War I, Darden volunteered for the French Ambulance Corps. and received the Croix de Guerre for valor. He later served as a U.S. Marine Corps pilot, nearly losing his life in a crash. See Stuart I. Rochester and Jonathan J. Wolfe, “Colgate W. Dar- den, Jr.,” in Younger, Governors of Virginia, 291–93. 121. Sandra Day O’Connor, “A Tribute to Justice Lewis F. Powell, Jr.,” 101 Harvard Law Review 395 (1987). 122. John C. Jeffries, Jr., Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons,” 1994), xi. 123. Richard H. Fallon, Jr., “A Tribute to Justice Lewis F. Powell, Jr.,” 101 Harvard Law Review 399, 401 (1987). 124. See A. E. Dick Howard, “Mr. Justice Powell and the Emerging Nixon Major- ity,” 70 Michigan Law Review 445 (1972). For a superb account of the life and jurisprudence of Powell, see Jeffries, Justice Lewis F. Powell, Jr. 125. See A. E. Dick Howard, “Hardy Cross Dillard: Life Upon the Wicked Stage,” 56 Virginia Law Review 10 (1970): 11. 126. George Clemon Freeman, Jr., “Hardy Cross Dillard, 1902–1982,” 69 Virginia Law Review 809 (1983): 810. 127. Warren Fiske, “President Bestows Freedom Accolade on Civil Rights Lawyer Oliver W. Hill,” Virginian-Pilot (Norfolk), August 12, 1999. 128. J. Harvie Wilkinson, III, “Linwood Holton,” in Younger, Governors of Virginia,

407.

State Constitutions for the Twenty-first Century

Vol. 1

The Politics of State Constitutional Reform

Edited by G. Alan Tarr and Robert F. Williams

State University of New York Press

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The politics of state constitutional reform / edited by G. Alan Tarr and Robert F. Williams. p. cm. — (State constitutions for the twenty-first century ; v. 1) (SUNY series in American constitutionalism) Includes bibliographical references and index. ISBN 0-7914-6613-2 (hardcover : alk. paper) 1. Constitutional law—United States—States. 2. Law reform—United States— States. I. Tarr, G. Alan (George Alan) II. Williams, Robert F. III. Series. IV. Series: SUNY series in American constitutionalism

KF4550.Z95P65 2005 342.73—dc22 2004030457

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THE OFFICIAL PUBLICATION OF THE VIRGINIA BAR ASSOCIATION

Virginia’s 1971 Constitution at 50

• THE VIRGINIA VALUES ACT • PAYING FOR A SPOUSE’S LONG-TERM CARE • THE EFFECTS OF COVID-19 IN THE WORKPLACE VOL. XLVII, No. 2 • Fall 2020 Article I. Bill of Rights VIRGINIA CONSTITUTION A DECLARATION OF RIGHTS made by the good p19nh 01 powers which rights do pertain to them and their posterity as the basis and foundation of q ad ave certain inher hycompact, deprive o p y; m y,jy r y,ns of acquiring an taining happiness and safety. o of power. consequently derived from, the people, that magistr sall times amenable to them. 50 Years On, Si 3 Go uted for commonDoes benefit. Virginia’s 1971 eo be, instituted for the common benefit, protection, munity; of all the various modes andConstitution forms of gove Still Meet ducing the greatest degree of happiness and safety ce danger of maladministration; and, whenever any dontrary to these purposes, a majority of thethe comm Challenge?u indubitable inalienable and indefeasible right to reform, alter, or abolish it in such manner as dal. oeges; offices not ove or separate emo uces; which not be me hereditary. paration of legislaacal elections. slative, executivehth should be distinct; and thaeppression, by rticipating the bube reduced to on, return into thithe vacancies b lid byll tisi hih lltf thfb sh llbi lw en oflo e be taxed or deprived of or dama perty for public uses without their own consent, bve not, in like c 16 • VBA JOURNAL 1971 Section 7. Laws should not be suspended. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

Section 8. Criminal prosecutions. That in criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, and to call for evidence in his favor, and he hen delegates to a constitu- limits on the suffrage, including the poll Virginia’s poll tax as violating the 14th shall enjoy thetional right convention to a gathered speedy in andtax andpublic the understanding trial, by requirements, an impartial Amendment. jury of his vicinage, without whose unanimousW Richmond consent in 1901, there he was cannot resulted be infound disenfranchising guilty. more He whites shall notAt the be same deprived time, Virginia of itself life was or liberty, except byno thedoubt lawabout oftheir the purpose. land They or thethan judgment blacks. of his peers, norchanging. be compelledA resurgent Republican in any party criminal meant to eliminate the African-American As the new century rolled along, was making Virginia a two-party state. proceedingfrom to Virginia give politics.evidence Carter against Glass himself,Virginia settled nor into abe long put era of twice tight inBefore jeopardy the decade for was the out, same Virginia offense. was emphatic. When asked by another conservative rule. It was the era of the would elect its first Republican gover- delegate whether the proposed suffrage fabled Byrd Machine. Harry F. Byrd Sr. nor since Reconstruction, A. Linwood Laws mayarticle be would enacted discriminate, providing Glass replied: for presidedthe trial over an organizationof offenses resting onnot a feloniousHolton Jr. by a court not of record without a jury, preserving the rightnetwork of the of localaccused officials and to a restricted an appeal Millsto E.and Godwin a trialJr. became by governor jury in some “Discrimination! Why, that is electorate. Virginia had the smallest in 1966. Styled by many as the “educa- court of recordprecisely having what we propose; original that, criminalelectorate jurisdiction. relative to population Laws of any may tionalso governor,” provide he pushed for ajuries progressive consisting of less thanexactly, twelve, is what but this Convention not less thanstate five, in postbellum for the America. trial Politicalof offenses agenda not — felonious, a state sales tax, and bonds tomay classify such cases,was and elected prescribe for — to discriminate the numberscientist of V.O.jurors Key called for iteach “a political class. support higher education, a doubling to the very extremity of permis- museum piece.” of teachers’ salaries, and, his most con- sible action under the Federal When the Supreme Court of the spicuous accomplishment, the creation In criminalConstitution, cases, the with accused a view to may pleadUnited States guilty. decided If Brown the v. accused Board of pleadof Virginia’s not community guilty, college he system.may, with his the elimination of every negro Education in 1954, Virginia embarked Recognizing the need for an overhaul consent andvoter the who concurrence can be gotten rid of, of the Commonwealth'son a program of Massive Resistance, Attorney andof Virginia’s of the Constitution, court entered in 1968, of record, be tried bylegally a smaller … .” number of jurors,intended or to headwaive off desegregated a jury. schools In case Godwin of such appointed waiver the Commission or plea of guilty, the court shall try the case. in the commonwealth. Schools closed in on Constitutional Revision. It was a Lest the proposed constitution be some localities, notably Prince Edward blue-ribbon body. Its members included rejected in referendum, the delegates County. Virginia’s Supreme Court ruled Lewis F. Powell Jr., soon to be named The provisionstook no chances of this — they section simply pro-shall bethat self-executing.this closure did not violate the to the U.S. Supreme Court; two for- mulgated it. Constitution of Virginia. mer governors, Colgate Darden Jr. and Through such devices as the poll tax The 1960s were a troubled and tur- Albertis Harrison; Hardy C. Dillard, Section and8-A. complicated Rights registration of victims procedures, of crime.bulent time in America. It was a decade later to sit on the World Court at The the Virginia Constitution of 1902 ac- marked by the assassination of John F. Hague; and Oliver W. Hill Sr., Virginia’s That in criminalcomplished the prosecutions, convention’s purpose. Inthe victimKennedy, shallRobert F.be Kennedy, accorded and the fairness,leading civil dignity rights attorney. and respect by the officers,1867, employees there were 105,832 and black agents registered of theRev. MartinCommonwealth Luther King Jr., andand by its politicalThe commission subdivisions produced a report and officers of the courtsvoters in and,Virginia as— almostthe halfGeneral of all Assemblyriots and arson inmay major definecities. As early and recommendingprovide by an law, across-the-board may be accorded registered voters in the commonwealth. as 1965, major protests against the war revision of Virginia’s Constitution. The rights to Inreasonable 1902, there were and21,000 appropriate — 4.7% of in notice,Vietnam were information, mushrooming across restitution, report went protection, to the General andAssembly, access to a meaningfulall registered role invoters. the criminal justicethe country. process. These rights maywhich include, adopted the butvast majority not be of the limited to, The 1901-02 convention met when The ’60s also brought major changes commission’s recommendations, while the following:many Virginians called for reforms that in the constitutional landscape — changes making significant changes of its own. In would curb the power of moneyed inter- that would have direct implications for November 1970, the people of Virginia 1. Theests, right especially to theprotection railroads, and loosenfrom furtherlaw and harmpolitics in or Virginia. reprisal In 1964, through approved the the imposition new constitution, of withappropriate the grip of Thomas Martin’s machine the U.S. Supreme Court ruled that state 72% voting in favor. bailon and state politics. conditions A signal reform of release; took legislatures must be apportioned on Effective in 1971, the constitution 2. Thethe right shape toof thebe newly treated created with State respect,the basis dignityof population. and The fairnessnext year, atis allan emphatic stages repudiation of the of criminal the 1902 justice Corporation Commission, taking utility Congress enacted the Voting Rights Act, constitution and of Massive Resistance. system;rate-making out of the hands of the aimed above all at racial discrimination in For the first time, the constitution for- 3. TheGeneral right Assembly. to address But slashing the the elec- circuitvoting court in the at South, the including time Virginia. sentence bids is discriminationimposed; on the basis of race, 4. Thetorate right played to against receive reform. timelyDraconian notificationIn 1966, the Supreme of judicial Court struck proceedings;down color, sex, or national origin. Recalling 5. The right to restitution; 6. The right to be advised of releaseBy A.E. from DICK custody HOWARD or escape of the offender, whether before or after disposition; and 7. The right to confer with the prosecution.

This section does not confer upon any person a right to appeal or modify any decisionFALL 2020 • 17 in a criminal proceeding, does not abridge any other right guaranteed by the Constitution of the United States or this Constitution, and does not create any cause of action for compensation or damages against the Commonwealth or any of its political subdivisions, any officer, employee or agent of the Commonwealth or any of its political subdivisions, or any officer of the court. The amendment ratified November 5, 1996 and effective January 1, 1997—Added a new section (8-A).

Section 9. Prohibition of excessive bail and fines, cruel and unusual punishment, suspension of habeasthe corpus, debacle of school bills closing, of theattainder, consti- andrestored ex to the post franchise. facto Should laws. tution lays down a mandate that, once we make their path to full citi- That excessivethe General bail Assembly ought has apportionednot to be required,zenship less nor arduous? excessive fines imposed,LEARN nor cruel and unusual punishmentsfunding, inflicted; localities are under that a constitu- the privilege of the writ of habeas corpus shall not be suspended tional obligation to provide their share. The Commission on MORE unless when,An aspirationin cases to quality of invasion education is or rebellion,Constitutional the Revision public added safety may require; and that the General Assemblya hallmarkshall notof the constitution.pass any The bill right of attainder,a requirement or that any legislative ex postdis- facto law.The VBA Committee on Special to an education — in language drawn tricts be contiguous and compact. Issues of National & State Importance from Thomas Jefferson’s Bill for the The courts, however, have left it is presenting two important discussions Section 10. General warrants of search or seizure prohibited.on the Constitution of Virginia at the next More General Diffusion of Knowledge largely to the General Assembly to VBA Annual Meeting, Jan. 21-23. The That general— appears warrants, in the Bill of Rights,whereby alongside an officerdecide whator thatmessenger mandate means may be commandedfirst will focus on the Virginia to searchConstitution suspected traditional rights such as free speech and in reality. A pending amendment of 1902 and then the enactment and places withoutfree exercise evidence of religion. The of Board a fact of committed,to the constitution or wouldto seize create any personaspects of the or current persons constitution. It isnot named, Education is to prescribe standards of an independent commission to in partnership with the Virginia Museum or whose offense is not particularly described and supported byof History evidence, & Culture, as part are of the grievousBaliles and quality for the schools, subject to revision undertake redistricting. Will that oppressive, and ought not to be granted. Legacy Series in honor of our former by the General Assembly. amendment bring an end to par- governor, collaborative founder of this There were yet other revisions, such tisan gerrymandering? committee in 1974 and member until Section 11.as the additionDue ofprocess a new environmental of law; obligation of contracts; takinghis death. or damaging of private quality article. In general, the constitu- The commission recommended Without our knowing there would property; prohibited discrimination; jury trial in civil cases. be significant precipitating factors tion reflects the revision commission’s overturning Dillon’s Rule, which to essentially mandate a deeper That no personbelief that “theshall people be of Virginiadeprived want of hisstrictly life, limits liberty, the powers or propertyof lo- withoutdiscussion, thedue second process is a plenary of law; that to shape their own destiny” and that cal governments. The General session to discuss our current the General“they Assembly want a constitution shall which not makes pass anyAssembly law rejectedimpairing that recom- the obligationconstitution, of to contracts; engage on our present, and that the possible a healthy, viable, responsible mendation. Is it time to jettison but most importantly, on our future right to be free from any governmental discrimination upon theconstitutional basis needs.of religious conviction, race, color,state sex, government.” or national origin shallDillon’s not Rule?be abridged, except thatAnd, thethere will mere be more. separationIn partnership of the Soon we will mark the constitution’s with the Thomas Jefferson Foundation, sexes shall50th not anniversary. be considered What does the passage discrimination. Thomas Jefferson famously invited the Virginia Law Foundation, and the of time tell us? What has the constitution each generation to mull in what respects Old Dominion Bar Association, we will engage in a session from Monticello, failed to accomplish? What challenges the constitution is adequate to the chal- That in controversies respecting property, and in suits between hopefullyman anand annual man,gathering, virtualtrial and by jury is lie ahead? lenges of their own time. George Mason’s live, which will be titled The Civil Rights preferable toEach any citizen other, will have and his or ought her list to beDeclaration held ofsacred. Rights for Virginia,The General from AssemblyInstitute at Monticello. may limit the number Thank you for your involvement in of jurors for consideration. civil cases A few in questions courts that of record1776, reminds to not us that less “no freethan govern- five. occur to me include the following (there ment, nor the blessings of liberty, can the work of The Virginia Bar Association and support of the Special Issues are surely others): be preserved to any people, but by … Committee. As Robert Frost noted, we That the General Assembly shall passfrequent no recurrencelaw whereby to fundamental private property,have “miles to go.” the right to which is Virginia is the only state in the principles.” — David Landin, Chair fundamental,country shall that forbidsbe damaged a governor or takenThe constitution’s except 50thfor anniversary public use. No private property shall be damaged orfrom taken serving for a successive public term. use withoutinvites justus to accept compensation Jefferson’s and Mason’s to the Scheduledowner for Jan.thereof. 21-23 at the WilliamsburgNo more private Should we drop that prohibition? summonses. It is for us to decide in Lodge, the association’s 131st Annual Meeting property may be taken than necessary to achieve the stated publicwill use. feature ProfessorJust Howardcompensation presenting shall what respects the commonwealth’s basic the Baliles Legacy Series program. He also be no less thanFew states the make value it as difficult of the as propertycharter doestaken, or does lost not fulfill profits the needs and lostwill moderate access, a general sessionand CLEdamages panel to the afterward. residue causedVirginia by for formerthe taking. felons to be The termsof our time.“lost ■ profits” and “lost access” are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier,A.E. or Dick railroad Howard is services.Warner-Booker In Distinguished all other Professor cases, of a Law taking at the University or damaging of Virginia. of private property is not for publicHe was use executive if the director primary of the commission use is that for wrote private the current gain, Virginia private Constitution. benefit, The private enterprise, increasing jobs,author increasingof several books, histax Commentaries revenue, on orthe Constitutioneconomic of Virginiadevelopment, won a Phi Beta except Kappa for the prize. He joined the VBA in 1961 and is a Life Member. elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is. The amendment ratified November 6, 2012, and effective January 1, 2013—In the heading of the section, after “taking”, added “or damaging”. In paragraph one, after 18 • “contracts”,VBA JOURNAL deleted “nor any law whereby private property shall be taken or damaged for public uses, without just compensation, the term ‘public uses’ to be defined by the General Assembly. Added a new paragraph after paragraph two.

Section 12. Freedom of speech and of the press; right peaceably to assemble, and to petition. VIRGINIA HISTORY That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.TOWARD GREATER EQUALITY In 1968-1970, Virginia’s leading legal minds Section 13. Militia;came standing together armies; militaryto revise subordinate the constitution. to civil power. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Section 14. Government should be uniform. That the people have a right to uniform government; and, therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.

Section 15. QualitiesA.E. Dick Howard necessary to preservationHullihen Williams Moore of free government.David Shufflebarger That no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue; by frequent recurrence n the late 1960s, some of the greatest legal minds in Moore, then a UVA law student whom Howard brought to fundamentalVirginia principles; converged to create and something by the new recognition together. It onby board all tocitizens serve as counsel that to thethey commission, have dutiesand David as well as rights, and thatwas not such a simple rights task: These cannot were not menbe whoenjoyed agreed saveShufflebarger, in a society director of where communications law is for respected the campaign and due on everything, and the issues they addressed were piled process is observed. to pass the referendum. Iwith controversy that had already survived two centuries. “I hadn’t even graduated from law school when I got to But with time comes change, and with change came the do this; and I got to see Oliver Hill, Lewis Powell, Albertis need for a new constitution for the commonwealth. So, That free government rests, as does all progress,Harrison, upon and Colgate the Dardenbroadest — these giantspossible — discussing diffusion of in 1968, Virginia Gov. Mills E. Godwin Jr. appointed an constitutional issues. That was a wonderful opportunity,” knowledge,impressive and listthat of accomplished the Commonwealth thinkers to the Commission should saidavail Moore, itself who wentof thoseon to practice talents public utilitywhich law fornature has sown so liberallyon Constitutional among Revision. its To peopleserve as its executiveby assuring director the25 yearsopportunity and served as afor member their and fullestchair of the development Virginia by — in essence, the primary draftsman and coordinator of this State Corporation Commission and the Virginia Air Pollution an effectivepotentially system daunting of educationeffort — the commission throughout called upon the Commonwealth.Control Board. A.E. Dick Howard, a young professor of law at the University “It was a hell of a lot of fun,” said Shufflebarger, who now of Virginia. Section 15-A. Marriage. lives in Nags Head, North Carolina, and is a senior partner It’s been nearly 50 years since the voters of Virginia ap- with Alexander Haas, a national fundraising consulting firm. “I That onlyproved a union the referendum between for the revisedone Virginiaman Constitution.and one womanhad a ball. may It was be one ofa themarriage most exhausting valid and exhilarating in or recognized by this CommonwealthLooking back, Howard said and it was theits experience political of a lifetime. subdivisions. experiences I’veThis ever had.”Commonwealth and its political “It was the next best thing to being in Philadelphia” for Howard added: “I have taught constitutional law from subdivisionsthe Constitution shall not Convention create in or 1787, recognize said the Richmond a legal statusthe beginning. for relationships I love the world of constitutions.of unmarried There are individuals that intendsnative, to who approximate is the Warner-Booker the Distinguished design, Professor qualities, of lots significance, of people who are goodor ateffects teaching andof writingmarriage. about Nor shall Law at the University of Virginia. this Commonwealth or its political subdivisions createconstitutional or recognize law, but very few another get the chance union, to work partnership, on Two of his associates in the effort concur. Hullihen Williams the drafting and making of a constitution.” or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. The amendment ratified November 7, 2006, and effectiveBy January JEAN 1, 2007—Added HARDIMAN a new section (15-A).

Section 16. Free exercise of religion; no establishment of religion. FALL 2020 • 19 That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, Halfnor a centuryshall later, be just enforced, a handful of therestrained, people involved molested,handle that, or but burthened I did feel like I was in back his in bodyschool again. or goods,It nor remain living and can describe what took place. was part of my obligation, as I saw it, to lay out suggestions shall otherwise suffer on account of his religious opinionsand options on or the belief; table — to but say, ‘Here’s all menthe problem, shall and be free to profess andDISCARDING by argument AN OLD to RELICmaintain their opinionshere arein different matters ways toof handle religion, that problem.’” and the same shall When work on the revision began, Howard was the “new What struck Moore was how careful Howard was about in nowise kiddiminish, on the block,” enlarge, as he described or affecthimself. Hetheir had nevercivil capacities.each and every Andword. the General Assembly shall not prescribe anybefore religiousworked on a constitution. test whatever, or confer any peculiar“Dick was very privileges interested in research,”or advantages Moore said. “We on any sect “I don’t know what I was thinking — maybe that it was produced hundreds of memos about what we ought to do in or denomination,like writing aor will pass or a deed? any But law I said, requiring ‘Sure, I can helpor authorizingdifferent instances. any What religious the language society, meant and or that the type people of any districtyou within do that,’” Howardthis Commonwealth, recalled, noting that it was tomore levy like on ofthemselves thing — Dick was or very others, careful about any it. Theretax wasn’tfor the any erection or repair ofpulling any an house all-nighter of to public finish an overdueworship, paper inor school, for the supportsloppy drafting.” of any church or ministry; but it shall except repeatedly for nine months. “They took me on board, be left freeand to it wasevery an amazing person group toof people.” select his religious instructor,THE ISSUES and to make for his support such private contractHoward as was he thrilled shall to be please.a part of it. Among the key issues discussed were ensuring quality “What made the assignment all the more important to me education for all students, changing voter registration require- was that I grew up in a segregated society,” he said. “Richmond ments so that they did not discriminate because of literacy, Section 17.is a very Construction wonderful place; but asof I was the growing Bill up, of segregation Rights. and revisiting the powers of local government. The rightswas enumerated part of the landscape. in I wasthis a beneficiary Bill of of Rights it, in effect.” shall notListening be toconstrued thinkers like Hill, to Virginia’s limit premier other civil rights of the After graduating from law school at UVA, he worked as attorney, and Powell, who later joined the U.S. Supreme Court, people nota thereinlaw clerk to expressed.Hugo Black, an associate justice of the U.S. was unforgettable, Moore said. Supreme Court. Howard assisted him during the Prince “Oliver Hill was a giant. He was dignified. He was articulate. Edward County Schools decision, an important step in One of the things that, of course, interested him the most was integrating schools. voting,” Moore said, adding that Hill provided vital perspective Article II. Franchise“Working on andthis new Officers constitution was a very personal as an African-American on the commission. thing for me,” Howard said. “It was a professional opportunity, Powell was fascinating to watch as well, he said. “Everyone but I felt some investment in the outcome.” listened to Lewis Powell,” Moore said. Section 1. QualificationsThe process required analyzing of voters.each section of the 1902 Once members decided on policy, Howard worked on In electionsVirginia by Constitution,the people, discussing the the qualifications issues and drafting more of votersthe language. shall be as follows: Each voter shall be a updated and concise language. That wasn’t all. “We had to reorganize the whole document and make it citizen of the“The United 1902 constitution States, was shall steeped be in eighteendiscrimination,” years clean,of age, crisp, shall clear, and fulfill coherent,” the Howard residence said. “The requirements new set forth inHoward this said. section, “That relic and really hadshall to be discarded.be registered The pri- toconstitution vote pursuant has about half to as manythis words article. as the old No one, personand who mary purpose of the 1901-1902 convention in Virginia was no one will ever miss the stuff we took out. The only part we has been convictedbasically to disenfranchise of a felony as many shall black people be qualified as possible. todidn’t vote touch, unless except inhis trivial civil detail, rights was the Billhave of Rights.” been restored by the GovernorThey wanted or to otherrid the voting appropriate rolls of African-Americans.” authority. As prescribedFrom there, the commissionby law, presentedno person its report adjudicated to the to be mentally Theincompetent document was forthright shall aboutbe qualified it. to votegovernor until andhis the com Generalpetency Assembly has by Jan. been 1, 1969. reestablished. The “They used the poll tax. They used registration require- General Assembly revised it and approved it — twice — be- ments. They used a number of devices with the effect that it fore it could go before the voters. Howard was invited by the The residencedisenfranchised requirements practically all shallthe black be voters that in Virginia,” each voter General shall Assembly be a residentto be counsel duringof the the Commonwealth legislative session and he said. “Incidentally, it disenfranchised a lot of poor whites and took a leave of absence from teaching to go to Richmond. of the precinctas well. Itwhere devastated he the votes.voting rolls.” Residence, for all purposes“I went down, of frankly,qualification with my heart in to my vote,throat because requires both domicile andThe a 1960s,place meanwhile, of abode. were Thea time General of upheaval, Assembly and I thought may politicians provide in Richmond for persons would just messwho up are every- employed ridding Virginia of its discriminatory constitution was a felt thing,” Howard said. “I was pleasantly surprised. There were overseas, imperative,and their Howard spouses said. Several and issues camedependents to the forefront, residing some thingswith they them, did that Iand personally who would are not qualified have done; to vote except forleading relinquishing to much debate andtheir well-considered place of compromise. abode in thebut thenCommonwealth again, it was their job andwhile not mine overseas, to make policy. to vote in the Commonwealth“We divided thesubject commission to intoconditions five subcommittees,” and timeOn limits balance, definedthe constitution by was law. better whenThe it emergedGeneral from Assembly Howard said. “We had two commission members on each the legislative session than when we gave it to them.” may providesubcommittee. for persons My job was who to keep are it allqualified coordinated.” to vote exceptThe legislature for washaving equipped tomoved tackle the their political residence issues, from one precinctCommission to another members within all had professions the Commonwealth of their own he explained. to continue to vote in a former precinct and would meet periodically. Subcommittees would present “They had the political mandate and were elected by the subject totheir conditions findings, holding and meetings time and limits taking actiondefined during by law.people. WhereThe theGeneral commission Assemblymight be a bit more may tentative, also provide, in electionsthe forday; andPresident Howard would and stay Vice-President up all night to document of thethe United legislature States, could be a littlealternatives bolder,” Howard to said. registration “They for new residentswhat they of were the doing Commonwealth. to have something to put on their table rose to the occasion. … The legislature, when I worked with the next morning. them, really had a sense of the common good. They worked “I was young and indestructible,” he joked. “When together across party lines, and I was very much impressed.” Any personI was who appointed, will I bewas 34.qualified I was young enoughwith torespect be able to to ageEducation to vote reform at the may havenext been general the most importantelection shall be permitted to register in advance and also to vote in any intervening primary or special election.

20 • VBA JOURNAL The amendment ratified November 7, 1972 and effective January 1, 1973 — In paragraph one, the voting age, formerly “twenty-one”, was reducedto “eighteen”.

The amendment ratified November 2, 1976 and effective January 1, 1977 — In paragraph two, substituted “be” for “have been” and removed the durational residency requirement of “six months” in the Commonwealth and “thirty days” in the precinct in the first sentence. The second sentence removed the language “fewersingle than item thirty the days new prior consti- to an election” and, after the word “may”, added the language “in the followingknew November this new general constitution election and (in any) tution tried to accomplish, The 1902 constitution was steeped in was the right thing to do for intervening”. InHoward the last said. sentence of the paragraph,“ the less-than-six-months residency requirement for presidentialVirginia, elections he wassaid. removed to conform with the first sentence.“One of the issues was discrimination. THAT RELIC REALLY Shufflebarger and the disparity in funding HAD TO BE DISCARDED. The primary Moore worked from between rich and poor purpose of the 1901-1902 convention in Richmond. Four “road The amendmentschool ratified districts,” November he said.5, 1996 and effective January 1, 1997 — In paragraph two, deleted the secondwarriors” sentence: who “A coordinated person who is qualified to Virginia was basically to disenfranchise as vote except for “Thehaving commission moved his residencewanted from one precinct to another may in the following November general electionthe effort and in in different any intervening areas election vote to nudge Virginia in the many black people as possible. They wanted of the state were critical to in the precinct from which he has moved.”, added a next-to-the-last sentence: “The General Assembly may provide for persons who are qualified to vote …”, direction of more equality to rid the voting rolls of African-Americans. the campaign. and added “also”among preceding these districts. “provide” There in the last sentence. ” “I went around the state was a good deal of debate — A.E. Dick Howard giving talks three or four over whether, if we set up a times a day,” Howard said. The amendmentmandate, ratified it wouldNovember bring 3, the 1998 and effective January 1, 1999 — In paragraph two, added the third sentence:“I went “The all overGeneral Virginia, Assembly may provide for persons whocourts are employed into the picture. …” Would the courts be empowered to tell from Big Stone Gap in the west to Onacock in the east. It the legislature what to do? A compromise was settled upon.” was just an amazing experience, because there I was, selling a Instead of saying that the General Assembly shall ensure a piece of paper. I had to get people to care about this proposed Section 2.statewide Registration system of quality ofeducation, voters. the constitution says it constitution. I spoke at union halls, black churches, suburban shall “seek to ensure” a statewide system of quality education. women’s clubs — you name it. Any group that would listen The GeneralThe language Assembly did not invite shall judicial provide supervision, by Howard law said. for theto registration me. … Of course I ofhad alla lot personsof help.” otherwise qualified to vote who have met the residence requirements containedOpposition came in fromthis conspiracy article, theorists and who shall thought ensure that the opportunityTAKING ITto TOregister THE PEOPLE is made available. Registrationsthe new constitution accomplished was an effort to put theprior government to the in effective A popular referendum was the final step in the process of the hands of the elite. date of thisapproving section a revised shall Virginia beConstitution. effective It was hereunder. on the ballot The“In registrationmy talks, I gave examples records of ways shallthat I thought not peo-be closed to new or transferredin November 1970. registrations more than thirtyple days were going before to be betterthe represented,”election Howardin which said. “For they are to This part was actually the most fun, Howard said. He example, we added the new constitutional requirement that be used. kept Moore on to help run the campaign, and Shufflebarger, legislative districts be compact and contiguous. It was an effort better known as “Shuff,” was hired because he had experience to get rid of partisan gerrymandering. … That was the kind Applicationsheading to political register campaigns. shall require the applicantof thing to we wereprovide doing to, the we thought, following put government information in on The constitution, they decided, would be treated like a the hands of the people.” a standardpolitical form: candidate. full They name; ran a positive date campaign of birth; with all theresidence Other address; opponents were social concerned security that the new constitution number, if any; whether theusual tactics:applicant TV ads, billboards,is presently bumper stickers, a United and a lot States would citizen; further integration and suchefforts that additional they still did not support.information as of time on the road giving speeches. In the end, Virginians gave the referendum an impressive may be required“The reason by it waslaw. so pivotal All wasapplications New York and Maryland to register 72% shall approval be rate. completed by or at the direction of the applicanthad just and gone throughsigned their by own the constitutional applicant, conventions unless physicallyIt was pretty remarkable, disabled. Howard No said, fee and shall an experience be charged to and taken them to the voters, and both of them got blasted,” that defined his career in ways that he could never have pre- the applicantShufflebarger incident said. “So to the anenvironment application was ugly for to moving register. dicted when he first started teaching. forward.” “Some years later, I had the chance to work with consti- Nothing in Shufflebargerthis article said heshall remembers preclude well the campaign the General kick- tution-makers Assembly in post-communistfrom requiring countries, as starting a prerequisite with to off luncheon. Hungary, Poland, Czechoslovakia, Albania, Romania, and a registration“We to unveiledvote thethis ‘who’s ability who’ ofof our the steering applicant committee to readnumber andof countries complete after the Berlin in Wallhis came own down handwriting and after the applicationat a luncheon”to register. in the Executive Mansion, he said. “That was the collapse of communism,” he said. “I felt that one advantage to be our showcase event: ‘Look at all these notables united I had was that I had already been around the track in Virginia behind this wonderful document.’ Motherhood and apple pie on a state constitution. I guess I could say that after you’ve been The amendment— ratified all good Novemberkinds of things. 2, 1976 The and problem effective with January that was 1, most1977 — In beatenparagraph up by two, the Virginiasubstituted legislature, “date of Albania residence holds in nothe terror.” precinct” for “length of of these folks didn’t like each other. You’re talking about some However, he said he counts the experience as a blessing. residence in the Commonwealth and in the precinct” and removed “time” of any previous registrations to vote. bitter political rivals. … The seating chart for that luncheon “I really was blessed to have the opportunity to work on took almost a week to put together.” Virginia’s new constitution. It’s not a perfect constitution. It The amendment ratifiedThe planners November finally 2, sorted1982 andit out, effective he said. January 1, 1983 — In paragraphhas flaws. Theretwo, after are things“maiden”, I hope added we can “and fix anyabout other it. Butprior it’s legal” and deleted Key people were strategically located, Shufflebarger said. a good constitution — and it’s light-years better than the one “of a woman, if “Itmarried”, was our andown after form “birth;” of social deleted distancing, “marital so that status; there occupation;”.would it replaced.” ■ not be any fistfights or any screaming, so it looked like peace and harmony in the valley when the reporters and TV came The amendmentin ratifiedto get the Novembershot.” 8, 1994 and effective January 1, 1995 — InJean paragraph Hardiman two, works after “toin theprovide”, communications deleted “under office oath”, at after “has been restored.”, deletedThe “Except one asthing otherwise that unified provided the inviteesin this Constitution,”, was that they alland afterMarshall “shall be University.completed”, deleted “in person before the registrar and”.

The amendment ratified November 5, 1996 and effective January 1, 1997 — In paragraph two, after “full name”, deleted “, including the maiden and any FALL 2020 • 21 other prior legal name; age”; after “date”, deleted “and place”; added “residence address;” after “of birth;”; and substituted “and such additional information