The Washington PostDemocracy Dies in Darkness

Opinion Gov.-elect Youngkin’s proposed CRT executive order opposes the spirit of the Virginia Constitution

Gov.-elect Glenn Youngkin, pictured on the campaign trail in June 2021, is considering an executive order related to critical race theory when he takes office on Jan. 15. (Michael Blackshire/The Washington Post)
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Catherine Ward is a student at the University of Virginia School of Law.

Virginia Gov.-elect Glenn Youngkin’s (R) proposed executive order related to critical race theory (CRT) in Virginia public schools strikes against the spirit of the Virginia Constitution.

In 1971, Virginia ratified its current constitution, which delivers explicit guidance on education policymaking. The constitution largely sought to ensure that the period of Massive Resistance — the period in which Virginia public schools closed to avoid desegregating — could not be repeated. As a result, the constitution’s drafters put primary education policymaking power in the Board of Education, a group of apolitical policymakers they viewed as capable of handling educational issues that could be emotionally charged, such as the race-based discussions spurred by desegregation.

The Virginia Constitution vests the board with broad constitutional power to regulate school curriculums, subject only to legislative approval. The constitution’s education article assigns curriculum-related duties to the board, General Assembly and local school boards — never explicitly mentioning the executive branch in relation to school curriculums. Instead, the constitution’s education article takes a technocratic approach for education policymaking: Experts are meant to put forward policy, which popularly elected Virginians in the legislature approve.

The education article dictates that Virginia’s governor appoint the technocrats carrying out the board’s efforts, subject to the legislature’s approval, but, due to staggered terms, “no more than three regular appointments shall be made in the same year.”

Supplementing the constitution’s text itself, the prominent leading drafter of the education article, Justice Lewis Powell, former president of the Richmond School Board, indicated his desire for the State Board of Education to have curricular control. Although he recognized the “magnitude” of the responsibilities of local school boards and feared threats to their independence, Powell thought curricular standard-setting should occur on a statewide level, in a manner “independen[t] from political and partisan pressures.” Powell stressed to the board in 1969, when promoting the constitution prior to its ratification, that the new constitution sought to “empower” the board with “increased authority and responsibility,” particularly regarding “the prescribing of curriculum standards [and] the selecting of textbooks and instructional aids” — elevating the “minimum standards [of] the marginal school divisions.”

Although the education article is largely silent on gubernatorial duties, the constitution provides the governor with certain powers that could contribute to curricular policy. The governor could contribute to such policy via an executive order. A governor has the power to issue executive orders based on his constitutional power to “take care that the laws be faithfully executed.” Consequently, a governor could put forward an executive order calling on school districts to adopt certain curricular standards or supporting existing law. He could even call a commission to research certain topics in curricular development. However, the constitution and related statutes indicate that, unless an emergency dictates otherwise, curricular development for commonwealth schools should stem from the technocratic process in which the board makes proposals that the legislature approves — not an executive order.

Debates around critical race theory in Virginia public schools have seized national attention since parents crowded a school board meeting to protest the teaching of CRT in Loudoun County Public Schools in June. When Youngkin takes office on Jan. 15, he can respond to these debates while acting according to the spirit of the Virginia Constitution. If he wants to issue an executive order related to school curriculums, it should be designed to bring local views to the technocrats in the Board of Education. Using his executive power, he could, for example, create a Commission on Local Concerns in Curricular Development, which would be assigned an advisory role to the State Board of Education. Such a commission could include local school board members, parents and educators from each region of Virginia, providing equal representation to home-related and classroom-related concerns.

The governor could task this commission with creating a report detailing local concerns surrounding curricular changes related to race and gender, the topics most debated in relation to CRT curriculums in Virginia and across the nation in 2021. The commission could then present this report to the board. To indicate that the board fully considered local concerns, it could respond to the commission in its annual report.

Staying true to the Virginia Constitution’s technocratic intentions, the board should address via empirical research the positive or negative effects certain curricular decisions would have on students’ social-emotional development and ability to interact with children of varied backgrounds in the commonwealth. After all, the constitution’s drafters recognized the latter as key to Virginia’s long-term academic and economic success.