Despite a law rife with constitutional problems, Virginia is trudging onward, implementing Gov. Bob McDonnell's plan for a statewide, bureaucratic takeover of failing local public schools.
Last week, the governor announced his final appointees to the board overseeing the new Opportunity Educational Institution. On the same day, the private attorneys hired to defend the enabling legislation's constitutionality responded to a lawsuit filed by the Virginia School Boards Association and Norfolk Public Schools.
Yet even as implementation proceeds under McDonnell, and as the lawsuit works its way through the court system, the political will for the initiative is in doubt. Neither of the two major parties' candidates for governor - Republican Ken Cuccinelli and Democrat Terry McAuliffe - has offered to support the law, raising questions about its viability.
Those questions have so far taken a back seat to concerns about its legality. The lawsuit filed last month claims the General Assembly's approval of SB 1324 violated sections in Virginia's constitution that empower only the state Board of Education to create school divisions and that require local control of local schools. The suit details the circumstances and conditions at each Norfolk school subject to takeover, and it assails the state for trying to take over locally owned school facilities.
Cuccinelli, the attorney general, refused to defend the law, noting weeks ago in a letter to the governor that he, too, viewed it as unconstitutional. So, the governor's administration has hired attorneys - at rates ranging from $250 per hour to $430 per hour - from the Richmond office of Troutman Sanders.
In response to the lawsuit, the state's new lawyers picked at the Virginia School Boards Association's standing to bring the lawsuit and questioned the credibility of Norfolk Public Schools, essentially because the district has three schools - Lindenwood Elementary, and Lafayette-Winona and Ruffner middle schools - that repeatedly failed to achieve accreditation and are subject to being taken over next summer.
The state's legal team also echoed the governor's effort to justify the OEI by invoking a constitutional provision that requires the General Assembly to provide a quality public education. But in doing so, the lawyers have effectively cherry-picked a section to use as a means to their end, creating a situation where they've declared conflicting provisions subordinate.
That's not the way the constitution is supposed to work, as Pat Lacy, an attorney for the school boards association and a former chief deputy attorney general, told lawmakers earlier this year. He has argued for months that the proposal clearly violated the constitution, which he helped craft in the early 1970s. He was roundly ignored by Republicans in Richmond.
Now, the lawsuit is pending, its court date undetermined. The next governor won't support the underlying legislation. Some lawmakers are talking about repeal. And McDonnell pretends all is well.
He'll name an executive director of the OEI in the next two months. He has finished his appointments to the OEI's nine-member board, adding John Nunnery, an Old Dominion University professor whose research expertise focuses on school reform. Nunnery joins Del. Daun Hester and Sen. Kenny Alexander, both of whom voted against the law, to give Norfolk a third of the board's seats.
The trio are in a position to influence the process so long as it exists. Even if it is maintained, members will have to act quickly. They have yet to schedule their first meeting, and in July, the new statewide district is scheduled to take over six failing schools, including the three in Norfolk.
"That's a very short period of time to undertake a complex enterprise like governance of a school," Nunnery said. The effort, he added, demands that members "understand the actual schools and their contexts and communities before one can reasonably consider alternative strategies for intervening."
It's not impossible, but the lawsuit and the lack of support from the next governor suggest the law and the OEI are doomed as soon as McDonnell departs.
The governor's latest actions appear more symbolic than substantive.
Or, as Alexander observed: "It's a formality."
Shawn Day is an editorial writer for The Virginian-Pilot. Email: email@example.com.