Can Youngkin really ban critical race theory in Virginia schools?

The governor-elect has been silent on specific plans, but experts say the campaign promise faces major barriers

By: - December 20, 2021 12:11 am

Gov.-elect Glenn Youngkin walks across Capitol Square in Richmond last month. (Ned Oliver/Virginia Mercury)

By some accounts, Virginia Gov.-elect Glenn Youngkin won the office in part thanks to his campaign pledge to ban critical race theory, an issue that’s become the subject of explosive debate in some Virginia school systems.

Nearly two months after the election, though, Youngkin has done little to elaborate on his promise. In general, the governor-elect has largely avoided media appearances since his victory. But he’s also turned down requests to discuss the issue of critical race theory specifically. The Mercury has twice reached out and requested interviews on his educational priorities, including how a ban on critical race theory could be accomplished in practice. In both cases, a spokesperson responded that he “would not be able to accommodate a phone interview.”

In reality, education policy experts say there’s no clear path for Youngkin to implement any kind of statewide ban on critical race theory, a term that’s expanded to include virtually any discussions and trainings around equity or antiracism in local school systems. Youngkin’s campaign, for instance, pointed to nearly a dozen “clear examples of critical race theory in Virginia,” which covered a wide range of state-level and local activity. 

One was a 2019 memo from James Lane, the state’s superintendent for public instruction, which covered “resources to support student and community dialogues on racism.” The communication, sent out to division superintendents, had a reading list that included “White Fragility” by author Robin DiAngelo and “Foundations of Critical Race Theory in Education,” an academic text that also explores how the discipline moved from legal studies to the educational field.

Other examples included a series of equity conferences and webinars sponsored by the Virginia Department of Education — optional professional development tools for teachers and administrators. Some lectures posted by the department have explicitly focused on antiracism or posited that the United States was founded on White supremacy. One lecture, an “Anti racism 101” seminar hosted on the Virginia Department of Education’s YouTube page as part of a state equity summit, included a slide titled “interrogating whiteness” and featured academics from the VCU School of Education imploring education leaders to “force yourself to always see race, especially if you’re White.”

But Youngkin’s campaign also pointed to hyperlocal instances of what it defined as critical race theory, including an email from a Chesterfield County principal discussing the school’s next steps to “promote a culture of inclusion.” In another example, a Virginia Beach administrator tweeted his support for The New York Times’ 1619 Project. With no clear definition of what “critical race theory” actually entails — and scant evidence that professional development and other reference materials have percolated down to students in a comprehensive way — crafting policy becomes much more difficult, according to some educators and legal experts.

“If you’re going to say I can’t do it, then define it for me,” said M. David Alexander, a professor of educational leadership and policy studies at Virginia Tech. “Tell me what it is, and be specific. And if you take two people of reasonable intelligence and neither of us understand what you’re saying, then you’ve got a problem.”

Taking the legislative route

Another, more immediate challenge is that Virginia governors have limited control over individual school divisions. State code gives local school boards broad authority over teacher training, curricula and other policies, from how to handle student bullying to recognizing collective bargaining rights for teachers.

The state’s General Assembly can compel school boards to adopt specific policies through legislation. Earlier this year, for example, lawmakers passed a bill requiring divisions to provide in-person instruction nearly a year and a half into the COVID-19 pandemic. It’s not uncommon for governors to ask legislators to carry certain bills, but passage, of course, depends on a majority vote in both the Senate and the House of Delegates. And in the case of critical race theory, there doesn’t appear to be a consensus.

While the idea of a ban has gained widespread traction among Republicans, who now control the House, Democrats still hold a slim majority in the Virginia Senate. And for Youngkin, the odds of a flip are slim. The governor-elect’s best hope would be building support among Sens. Chap Petersen, D-Fairfax City, and Joe Morrissey, D-Richmond — two wild-card legislators with a history of siding with Republicans on issues like abortion and marijuana legalization. 

Virginia State Sen. Chap Petersen, D-Fairfax, left, gestures as he talks with Sen. Siobhan Dunnavant, R-Henrico, second from right, as they prepare for the reconvene session to order at the Science Museum of Virginia Wednesday April 22, 2020, in Richmond, Va. The Senate is meeting in a remote location due to COVID-19 social distancing restrictions. (AP Photo/POOL/Steve Helber)

Both said they are open to some of Youngkin’s other campaign promises, including his pledge to build more charter schools across the state. When it comes to a ban on critical race theory, though, neither is convinced.

“I’m not aware that it’s taught in K-12 education, so how do you ban something that’s not part of testing and not part of the curriculum?” Petersen said. Morrissey, too, said he has yet to see any clear examples of the ideology being taught to students, making a bill unnecessary.

“It’s a solution looking for a problem,” he said. “And I don’t see any type of legislation banning CRT getting through the Senate education committee.”

Sen. Joe Morrissey, D-Richmond. (Photo by Ned Oliver/Virginia Mercury)

According to Jack Preis, an associate dean with the University of Richmond School of Law, enforcement would be another challenge to any potential legislation. At least eight state legislatures have passed laws banning critical race theory, and around 20 more have considered similar bills. Many are drafted similarly, with bans on teaching “divisive concepts” such as “race or sex scapegoating,” in the case of Iowa’s new law.

Right now, the only clue to what legislation in Virginia could look like is a failed amendment from Sen. Steve Newman, R-Bedford, who attempted to add language addressing critical race theory to a budget bill during a special legislative session earlier this year. Similar to other state laws, it would have banned training, teaching or promoting a series of concepts to school employees and students, including “that the United States is a fundamentally or systemically racist country.”

“It will be very difficult to enforce,” Preis added in an email. “You’ll have teachers saying, ‘So wait, can I teach redlining? And if so, can I explain that the effects of redlining are with us still today, or would that be teaching ‘systemic racism’? I need to know what to do here.”

Model legislation developed by the Manhattan Institute, a conservative think tank, largely assigns enforcement to state attorney generals or local district attorneys, allowing them to sue school systems that violate the law. Alexander said that’s likely to be highly unpopular with local divisions, given the potential for ongoing and expensive litigation.

But he also said the push to ban critical race theory ignores the fact that many equity efforts have been locally driven. Fairfax County, for example, is in the process of developing a new “anti-racism, anti-bias education curriculum policy,” which involved surveying parents across the district. Petersen, whose children attend the public school system, wasn’t happy with the language of the poll, but said families have the option to vote local school board members out of office if they’re dissatisfied with the initiatives.

“I would not support a statewide effort to ban anything,” he said. “I think school divisions should reflect their communities, even if I as a parent want to see curriculum that brings people together.”

What about the Board of Education?

It’s also not clear that Youngkin could immediately implement change through the state’s education department, which is governed by a board of appointed members. VDOE is an executive branch agency, and governors have the power to appoint both a secretary of education and the state’s superintendent of public instruction. Still, it’s the Board of Education that has final say over the state’s Standards of Learning — the minimum expectations for what students are expected to learn in every subject at every grade level. 

The Virginia Department of Education offices are in the James Monroe Building in Richmond. (Parker Michels-Boyce/ For the Virginia Mercury)

While individual school districts have final authority over how to incorporate those standards into curricula, both the Board and state legislators can make adjustments to the SOLs, according to Holly Coy, the state’s assistant superintendent for policy, equity and communications. In 2013, for example, the General Assembly passed a law that added CPR training to Virginia’s health SOLs for high schoolers. 

State code requires the standards for all subjects to be reviewed every seven years, but the board can also consider changes independently. Recently, a coalition of state education agencies — including VDOE and State Council of Higher Education for Virginia — launched an initiative that’s examining significant structural changes to Virginia’s math education. A formal proposal has yet to come before the board, but it’s something members could consider as part of the review process.

“The standards, at the end of the day, are decided by the Board of Education,” Coy said. Youngkin, though, won’t have much control over the group in the first year of his administration. Board members serve four-year terms, and currently, all have either been directly appointed by Northam or reappointed after an initial nomination by former Democratic Gov. Terry McAuliffe.

Gov. Ralph Northam has said he’s concerned students were learning incorrect information about African American history — part of the reason he formed a commission to evaluate the state’s Standards of Learning and local curricula. (Mechelle Hankerson/ Virginia Mercury)

Youngkin’s first chance to make replacements won’t come until June of 2022, when the terms for two members are set to expire. Three additional terms will end a year later, giving him his first chance at appointing the majority of the board. But changing the Standards of Learning is also a lengthy regulatory process, one that requires a month of advanced notice before a scheduled public review process. 

So while it’s possible that Youngkin appointees could modify the state’s SOLs to include ban some of the same concepts included in Newman’s amendment — a step recently taken by Florida’s Board of Education — the opportunity wouldn’t come until later in his term. And most educators say they’re still not sure if his pledge to ban critical race theory was a campaign stump speech or a serious policy proposal.

“I’m at a wait and see,” said Cassandra Newby-Alexander, a history professor and dean at Norfolk State University who also served on the state’s African American History Education Commission. “I just don’t know if it was political rhetoric or if his intent is to change the trajectory of Virginia being a leader in the nation for something positive.”

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Kate Masters
Kate Masters

Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md. She was named Virginia's outstanding young journalist for 2021 by the Virginia Press Association.