Could Virginia Gov. Terry McAuliffe’s (D) executive order automatically restoring voting and other rights for released felons lead to a landmark education decision?
Jim Crow-era “separate but equal” schools defined Virginia’s education policy until ruled unconstitutional by the 1954 Brown v. Board of Education decision. A unanimous Supreme Court said “separate educational facilities are inherently unequal.”
In light of Brown, Virginia incorporated a promise of a high-quality education for all in Article VIII, Section 1 of the revised 1971 Virginia Constitution.
However, as University of Virginia Law Professor A.E. Dick Howard — who helped write the new Constitution — has explained, the drafters made clear they intended this goal to be “aspirational” only. An “aspirational” goal, unlike a right, isn’t enforceable in court should the state shirk its constitutional duty.
Howard knew the drafters’ intent could be key should education advocates bring a lawsuit. Virginia’s politicians applauded their own cleverness, taking campaign credit for promising equality while constitutionally shielding themselves from legal accountability.
Mr. Goldman once accompanied former governor Doug Wilder to Richmond’s George Mason Elementary School, built during the Jim Crow era. Wilder went there as a child, in the Great Depression. Despite additions, the facility has never been modernized.
We discussed in previous columns the fact Virginia’s public school stock, on average, is obsolete. More than half, including Wilder’s boyhood school, are old enough to qualify as historic structures under state and federal law.
Virginia Tech professor Glenn Earthman, a nationally acclaimed authority on dysfunctional school buildings, warns that students in antiquated or unsafe facilities lose the statistical equivalent of one year of learning. Other researchers have raised similar alarms. Despite this, state leaders hide behind their constitutional shield.
But McAuliffe’s felon rights order may have inadvertently lowered that shield.
Republicans are challenging the order in the Virginia Supreme Court, saying the governor exceeded his constitutional authority. They cite the constitutional practice of all previous governors acting on the advice of their attorneys general: Felons seeking restorations of rights must petition the governor individually, although the form of such inquiry is up to the chief executive.
No previous governor claimed the power to issue a blanket order restoring rights to more than 200,000 felons, including violent felons. Professor Howard’s book on the last revision to the Virginia Constitution says the drafters intended to incorporate the existing individualized practice into the new document.
McAuliffe doesn’t deny the prior practice or intent. He says the only relevant issue is whether the Constitution’s plain wording says he can’t do it.
Could McAuliffe’s plain wording doctrine morph into an educational game-changer?
Article VIII, Section 1 of the Virginia Constitution reads in part:
The General Assembly shall provide for a system of free public elementary and secondary schools for all children … and shall seek to ensure … high quality is established and continually maintained.
“Shall” is well-defined legally as a mandatory, not aspirational, command.
“Ensure” means “make sure or certain” or “guarantee.”
There is no definitive, precedent-setting legal decision on the meaning of “shall seek to ensure.” As Earthman and others make clear, a high-quality education, much less an equal one, isn’t remotely possible in unmodernized, Jim Crow-era facilities.
In Brown, the court assumed, arguendo, the “physical facilities” to be equal but still found discrimination because of segregation. In Richmond, more than 90 percent of public school students are non-white. The average building dates to the 1950s. Many are in dire need of modernization, indeed, even of basic repair. Richmond’s leaders have shamelessly dodged their responsibility on the matter, as we have written. But does the Constitution allow state leaders a free pass too?
If the drafters’ intent is no longer relevant, as the governor argues, “shall seek to ensure” may, as the Brown court said, be read in light of modern research and the state’s previous admission that education is a fundamental right.
The governor and attorney general say Virginia has a moral obligation to end the last vestiges of Jim Crow.
Surely students across our state have a claim on that morality.
So we ask: If education advocates sue the state under Article VIII, Section 1 to end 62 years of knowing failure, would he order the attorney general to defend the state or stand down?