Journal of Local Government Law Published by the Local Government Section of the Virginia State Bar Vol. XXIV, No. 2, Fall 2013 Article reprinted from full Journal issue with permission of the Local Government Section Constitutional Roots that included a notable, down- Brooks v. Sch. Bd., 569 F. to-earth passage: Supp. 1534, 1539 (E.D. Va. and Shadow: 1983) (emphasis added). While This Court has previously The School Board’s his memorable words in that sought the guidance of the case focused on what he per- Manifest Power Under Fourth Circuit in the morass ceived as a confounding Eighth Article VIII, Section 7 in which decisions in this Amendment test, they provide a area have left the trial judg- Douglas L. Guynn reminder of how constitutional es to flounder . Absent analysis—both under the U.S. Introduction some . dividing line be- Constitution and Virginia Con- ortch Warriner, a tween common law tort and stitution—can be challenging former Emporia City constitutional tort, we are for courts and counsel. Those D Attorney, eventually left to a two-step analysis words challenge us to consider, became a U.S. District Judge that does little to divide one as well, how Virginia’s Consti- for the Eastern District of tort from another. Only tution has been “run” when it Virginia, serving on the feder- after a trial . can we de- comes to the authority of the al bench for more than 10 termine whether we had 1 Commonwealth’s school years. Known perhaps distinc- jurisdiction to try the case. boards. This kind of review tively for his direct and candid If we are not shocked we brings to the discussion some judicial approach, he had didn’t have jurisdiction. of the legal, strategic, and occasion to address various That is a heck of a way to tactical questions under Article constitutional issues that in- run a Constitution. volved Virginia’s public VIII, Section 7 and, in the schools. In one particular instance, Judge Warriner vent- ed about the practical difficul- TABLE OF CONTENTS ties in handling a constitution- Constitutional Roots and Shadow: The School Board’s al issue within the framework Manifest Power Under Article VIII, Section 7 .................................. 1 established by the Fourth Chairman’s Message ...................................................................... 2 Circuit Court of Appeals. You An Interview with Mike Kaestner: have to admire the candor and The 2013 Virginia State Bar Local clarity in his published opinion Government Fellowship Recipient ............................................... 22 Ramifications of Shelby County v. Holder Doug Guynn is the City Attorney of for Practitioners in Virginia ............................................................ 25 Staunton and heads the Virginia Notice to Members re Electronic Publication .............................. 30 Education Law Group of Botkin- Rose in Harrisonburg. He may be Bibliography & Back Issues Notice .............................................. 30 reached at [email protected]. Board of Governors ...................................................................... 31 Journal OF Local Government Law Chairman’s Message As you may know, the Virginia State Bar is planning a different format for next year’s Annual Meeting in Virginia Beach. As a result of renovations underway at the Cavalier Hotel, which has hosted the Annual Meeting for decades, the VSB had to get creative and find new places and new ways to hold the Annual Meeting. The VSB’s Better Annual Meeting Com- mittee (evocatively known by its acronym as the “BAM Committee”) took on the challenge and it lived up to its name. The programs and events will be scheduled at several hotels along the boardwalk instead of concentrating them at one headquarters hotel. Instead of multiple CLE sessions running simultaneously, fewer but bigger and better sessions will be held. The BAM Committee developed a long list of timely and engaging subjects and the sections were asked to weigh in on what they thought would be of greatest interest to their members. I’m happy to say that one of the programs that the Local Government Law Section advo- cated for was ultimately selected. Together with the Construction Law Section, the Local Government Law Section will co-sponsor a “Showcase CLE” on Private Property Rights/Public-Private Partnerships. The panel will address property rights, public-private part- nerships, tolls for tunnels and HOT lanes, and where the constitutional line is for private action or authority action, as opposed to legislative action by the state or local governments. The Supreme Court of Virginia’s October 31, 2013, decision in Elizabeth River Crossings Opco, LLC v. Meeks will be one focus of the discussion. The BAM Committee also proposed scheduling lunches for sections that want to combine their annual business meetings with social time. Your Board of Governors responded favora- bly, so we will be conduct our business meeting over lunch next year. In short, there are ex- tra reasons for Local Government Law Section members to attend the Annual Meeting in 2014, so put it on your calendars. It will be on June 13 and 14, 2014. Meanwhile, we present the Fall issue of the Journal of Local Government Law. This issue in- cludes a retrospective by Mike Kaestner, who was awarded the Section’s First Fellowship, an article by Staunton City Attorney Doug Guynn on the constitutional authority of school boards, and an article about the future impact of the U. S. Supreme Court’s decision in Shelby County v. Holder, by Stephen C. Piepgrass and Anne Hampton Andrews of Troutman Sanders. Erin Ward Chairman process, a greater appreciation especially fitting with the schools.2 A discussion of this for the historical contexts in approach of the 60th anniver- history and Virginia judicial which the Virginia Supreme sary of the U.S. Supreme precedent additionally invites Court has found itself dealing Court’s groundbreaking deci- reflection on the post-Brown with the consequences of other sion, Brown v. Bd. of Educ., role of courts and judges today institutions’ actions and the 347 U.S. 483 (1954) (often in the operation of our public ensuing conflict that occa- referred to as "Brown I"), on schools—operations that can sioned litigation. The timing is racial segregation in the public implicate a myriad of personnel Page 2 Journal OF Local Government Law and other decisions leading to lawyers—and judges—unschooled vested in a school board.” See litigation.3 Advocates, includ- about the reach. Bradley v. Sch. Bd., 462 F.2d ing local government attor- 1058, 1067 (4th Cir. 1972). As neys, who underestimate the Development and history would demonstrate in grounding and reach of the Nature of Virginia yet unforeseen ways, the judi- Virginia Constitution’s Article School Boards cial interpretation of this lan- VIII, Section 7 do so at some In the late 1700s in Virginia, guage would become pivotal in considerable risk, especially Thomas Jefferson proposed his determining issues of legal given what is the long “shad- Bill for the More General control and decision-making ow of [Virginia Supreme Diffusion of Knowledge. He discretion in the century ahead. Court] . cases giving full believed “to diffuse In the constitutional amend- effect to that provision.” Rus- knowledge more generally ments ratified in 1928, Virginia sell Cnty. Sch. Bd. v. Ander- through the mass of the peo- also adopted what is the more son, 238 Va. 372, 384, 384 ple” would have the effect of modern-day structure for basic S.E.2d 598, 604 (1989). The “rendering the people safe, as public education: the Gover- federal courts, too, have rec- they are the ultimate guardians nor’s appointment of all mem- ognized the unique authority of their own liberty.” See A.E. bers of the Board of Education of Virginia school boards and Dick Howard, Commentaries and of a Superintendent of those federal judicial decisions on the Constitution of Virginia Public Instruction and division also bear study to appreciate 879 (1974) (hereafter, “Com- superintendents selected locally the potential implications. mentaries”). His early Bill by the respective local school boards. Commentaries at 914- Public education is a complex, would have resulted in allow- 15, 932. often big, business in contem- ing several years of some porary times and the conflicts education at public expense In 1969, the Commission on touching it continue in various for various children, although Constitutional Revision ren- ways. Those conflicts can it did not ultimately get adopt- dered its report to Governor 4 5 bring competing claims of ed. Eventually, though much Godwin, recommending chang- legal-societal control and later, Virginia’s Constitution es that led to the 1971 Constitu- influence that test traditional of 1870 “gave public educa- tion. Through the process that notions of local governance tion in the Commonwealth its culminated with overwhelming and decision-making before first genuine constitutional voter approval, the Constitu- the courts. Even today, how- underpinning.” Commentaries tion’s Education Article VIII ever, Virginia school boards at 881. Consistent with that assumed its present form: cities seem to have considerable development, a statewide and counties would not be able authority rooted not just in board of education came statu- to elect whether to have statutory provisions but more torily into being, with authori- schools and to help fund them, powerfully in the Virginia ty to appoint county superin- the supervision of the schools Constitution itself in the form tendents and manage school remain “vested” in the local of a deceptively simple decla- funds, id., and elected or ap- school boards by virtue of a ration: “The supervision of pointed trustees to constitute single sentence, and a constitu- schools in each school division the local governing board of tional ethic of education gained shall be vested in a school each school district, id. at 934. standing in the Bill of Rights,” board . .” Va. Const. art. The 1902 Constitution includ- declaring in distinctive Jeffer- VIII, § 7.