The Virginia Senate. (2020 file photo by Ned Oliver/Virginia Mercury)
Education has been the number one priority for Gov.-elect Glenn Youngkin, both on the campaign trail and as he prepares his transition to the Executive Mansion in Richmond.
Youngkin promised to boost teacher pay and rebuild crumbling facilities, keep schools open throughout the ongoing pandemic and eradicate “critical race theory” from the classroom.
Budgets come and go, pandemics (hopefully) don’t last forever, and culture wars over school curriculum have raged for decades.
But it’s Youngkin’s school choice agenda that could fundamentally alter Virginia’s education system.
“School choice” can refer to a range of educational options, including charter schools, voucher programs that use public money to help families pay for private school and education savings accounts, where families can pull their child from public school and use the per-pupil funding to pay for other educational opportunities.
Youngkin has been light on specific policy proposals, but the governor-elect consistently preached school choice on the campaign trail. He promised Virginians at least 20 more charter schools as a “Day One” priority and vouchers for families to help their children recover from the year of school closures.
Those types of promises might not have gained much traction in past years, but massive frustration with the state’s public schools after a year of COVID-19 closures and enough moderate Democrats could provide Youngkin an avenue to deliver on his campaign promises.
“If people paid attention this last election, they will understand there are communities that have been left behind,” said Del. Glenn Davis, R-Virginia Beach, who was just named chair of the House Education Committee by the incoming GOP majority. “I think people on both sides of the aisle have heard this. We’ve got a governor-elect who championed school choice, who believes in it and is going to lead on it.”
Youngkin’s promise to start 20 new charter schools would mean nearly quadrupling the number of charters currently in the commonwealth.
Charter schools are publicly funded and authorized by locally-elected school boards. While they are held accountable to performance standards laid out in their charter agreements, charter schools have greater autonomy in curriculum and instructional models.
Virginia technically allows charter schools, but just seven are currently open, with 1,302 students attending, according to the Virginia Department of Education.
Charter advocates say the low number is because local school boards have final say over whether or not to allow a charter school to open.
“It makes it almost impossible to found one,” said Sen. Chap Petersen, D-Fairfax City.
That’s why lawmakers like Petersen have their sights set on a more fundamental policy change than just opening 20 new schools. Petersen and others want to expand the authorization process so that local school boards do not have sole control over whether a new charter school can open.
Under current state law, there is no appeals process to a higher authority if a local school board rejects a charter application. Charters that are rejected can ask the local school board to reconsider, but once the board has reconsidered and rendered a verdict, it’s decision is final.
Asking school boards to be the gatekeepers of their potential competitors ensures that charters don’t have a fair shot, Davis said.
“It’s not the only thing. There are some challenges in Virginia code that make it difficult for the success of charter schools here,” Davis said. “But ultimately, if school systems won’t even consider charter applications then this whole system is dead in the water.”
There are several policy proposals that could change the authorization process, lawmakers say. Legislators could require boards to approve charters if they meet certain criteria, allow charters who get denied to appeal to the state or create an easier path for traditional public schools to convert to charters.
The Virginia Education Association, the state’s largest professional organization for teachers, isn’t outright opposed to charter schools, but it wants authority to stay with local school boards, VEA spokesman Shane Riddle said. Riddle said the rule ensures that charter schools work hand-in-hand with the local board to support the school district’s mission to educate all children.
“We are not totally opposed to charter schools, depending on how they are structured and who they target. As long as there are equity structures to make sure all students have the opportunity to attend,” Riddle said. “We want to make sure that if a charter school is authorized then the only authorizer is the local school division.”
Allies across the aisle
In 2019, Davis filed legislation that would have created a process for certain charters that get denied by the local boards to appeal to the state Board of Education. That bill died in a House vote, but this go-around, Davis thinks similar legislation stands a chance.
Some key Democrats in the Senate agree with him.
While Republicans hold the House and governorship, Democrats narrowly control the Senate, with a 21-19 majority. Incoming Republican Lt. Gov. Winsome Sears presides over the Senate and casts tie-breaking votes, so the Democrats cannot spare a single vote if they want to block GOP legislation.
That dynamic gives moderate Senate Democrats like Petersen and Sen. Joe Morrissey, D-Richmond, outsized influence. Both have sided with Republicans on education issues like reopening schools, and the duo is key to Youngkin’s education agenda becoming a legislative reality.
Both lawmakers support expanding the charter authorization process.
Petersen said he was at a Chamber of Commerce event recently, and as he heard speakers praise Virginia’s educational system, the disconnect between frustrated families and some state officials was striking.
“I was thinking, does anyone know that schools were closed for a year, that we had 50,000 students drop out of the system?” Petersen said.
Petersen said a growing number of Democratic legislators are uncomfortable with defending the status quo.
“I can only speak for myself, but you can group the Democrats into two groups: One is (saying) ‘Nothing to see here, move along,’” Petersen said. “The other says what we’ve seen in the last two years is a little unsettling and that we need to reestablish trust in our public schools. We’ve had too many people quitting, too many families leaving the school system.”
Morrissey similarly distanced himself from other Democrats on the issue of school choice.
“Most of the Democrats, they just line up behind public schools. What public schools want, boom, they get,” Morrissey said. “I’m very much a supporter of public schools. But that doesn’t mean, though, there isn’t a place for charter schools. …Competition makes individuals, companies, school boards, school districts and schools themselves better.”
While that message may resonate with Democratic wildcards like Petersen and Morrisey, key constituencies are not on board.
“Right now Virginia is ranked number four for educational outcomes in U.S. News & World Report. Our public schools are doing a very good job,” Riddle said. “When you say competition, you are speaking of the private industry. Why do you want competition when a state is fourth in the country in educational outcomes?”
Education savings accounts
Lawmakers wanting to open the door in Virginia for Education Savings Accounts and voucher programs received a major assist from the U.S. Supreme Court in 2020.
A longstanding prohibition on using public money for religious education, known as the Blaine Amendment, was declared unconstitutional by the U.S. Supreme Court last year. Virginia is one of 37 states with a Blaine Amendment within the state’s Constitution, stating that public money cannot go to religious schools.
In July 2020, the U.S. Supreme Court ruled that application of the Blaine Amendment violated the U.S. Constitution’s Free Exercise Clause. A group of mothers in Montana had sued the state over a tax-credit scholarship program which did not allow recipients to use scholarships at religiously affiliated schools.
The ruling doesn’t mean that Virginia must begin sharing tax dollars with religious schools, but religious schools are now potential beneficiaries if lawmakers allow parents to utilize education savings accounts, which have come close to passing through the state legislature in recent years.
The Supreme Court’s ruling states, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
Education Savings Accounts operate on the principle that parents should have access to the public money that funds a child’s education. While there are a variety of ESA programs in eight states where they are currently legal, the general idea is that a parent can withdraw their child from public school and then use all or some of the per-pupil funding on various educational expenses, including private school.
In 2016, Gov. Terry McAuliffe vetoed a school choice bill that would have created education savings accounts, on the grounds that it could violate the state’s Blaine Amendment language. In 2017, as lieutenant governor, Gov. Ralph Northam cast the tie-breaking vote in the Senate to kill legislation which would have established education savings accounts.
Republican lawmakers know that ESAs and vouchers are less likely to make it through a Democrat-controlled Senate Education Committee. If legislation allowing ESAs does make it through this session, it is likely to be targeted for specific groups that have been historically disadvantaged.
“Maybe ESAs for poor kids, for special needs kids, maybe the state can cap the number of people who can qualify, or just have it for overcrowded schools, or make it so school boards have to opt in,” one lobbyist familiar with the debate but not authorized to comment on it said. “Those are the conversations that are happening, and it comes down to what can get through the Senate.”
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