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State Takeover Law Struck Down in Virginia

A Virginia law that established a statewide board to take over and run unaccredited and consistently low-performing schools has been ruled unconstitutional by a state judge.

In a ruling issued this week, Norfolk Circuit Court Judge Charles Poston sided with the Virginia School Boards Association and the Norfolk Public Schools, which filed the lawsuit last year against the Opportunity Educational Institution and the Opportunity Educational Institution Board.

The ruling and injunction bar the state from  taking over three Norfolk Public Schools and others across the state on July 1, as planned. The lawsuit was supported by more than two dozen school boards.

Several states across the country have laws that allow them to intervene and then run underperforming or mismanaged schools. In New Jersey, for example, the state runs four school districts. In the state of Indiana, four Indianapolis Public Schools were taken over by the state in 2012 and then turned over to private operators.  

Recognizing the reasons for state intervention—underperforming and mismanaged schools— some local school districts have sought to stave off such actions, some by partnering with outside organizations to manage those schools in the hopes of raising test scores. Locals have objected to the outside intervention in many of those cases—including Newark and Paterson, in New Jersey.

The plaintiffs in the Virginia case opposed the law, specifically citing violations under Article 8, Section 7, of the state's constitution, which gives local school boards the authority to supervise schools in their division. 

The two groups argued that the law was unconstitutional on those grounds. (The OEI was to be part of the executive branch of government.) They further argued that the right to create education divisions was up to the state board of education, not the General Assembly, which created the OEI Board.

In his nine-page ruling, Poston disagreed with the state that the General Assembly's powers were "board and plenary," which means it is allowed to pass laws about nearly anything that was not specifically prohibited by the state constitution.

Poston agreed with the argument in theory, but said that by giving such authority to the state and local school boards, the law is specifically restricting the General Assembly's ability in those matters.  

He said, however, that the General Assembly had the right to address failing schools, but it had to do so within a constitutional framework.

The law also failed because it removed from the local school board the authority to sell its own real estate without the permission of the OEI.

The  General Assembly passed the  law creating the Opportunity Educational Institution and the Opportunity Educational Institution Board in its 2013 session as part of former Gov. Bob McDonnell's  education reform agenda. The legislation gave the board the authority to take over the supervision and operation of schools that had been denied accreditation or had been accredited but had three consecutive  years of warnings.

Beyond Norfolk, the law has faced opposition in a number of other school districts, according to The Virginian-Pilot.  The OEI board has also had issues with funding and has not done much as it awaited the ruling on its future.

According to The Pilot, Gov. Terry McAuliffe has not yet decided on the state's response, which can include an appeal.

In a statement released after the ruling, Norfolk School Board Chairman Kirk Houston said he was pleased, but also recognized the district had to address the issue of low-performing schools. The district, according to the paper, is working on a turnaround plan for those schools that would have been taken over by the OEI board.

"We value our strong partnership with Virginia elected and appointed leaders, however, state takeover of schools was not going to be a magic formula for addressing challenges with student achievement, particularly in high-poverty schools," he said.  "In Norfolk, our community is focused on creating school environments that maximize all children's academic potential, with consideration for all of their unique needs."

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