Under state law, school districts are required to adopt policies that align with the guidance. The law, however, offers no way for the state to enforce compliance and leaves room for interpretation of the model policies by each school board. That has led to a patchwork of responses in the first month since the policy was enacted — much like what occurred after the release of the 2021 guidance.
The Washington Post asked the state’s 132 school districts how they planned to move forward. Only 22 school divisions responded as of Monday afternoon, though a majority said that their leaders had either not yet discussed the polices or they were still under review by legal counsel. At least three districts made slight modifications to existing policies to bring their districts into what they consider compliance with the new state guidance.
So far, at least two school districts — in Spotsylvania and Roanoke counties — have fully adopted the sample policies included in guidance. And at least four school districts — including Fairfax and Prince William County Public Schools, the state’s two largest divisions — have publicly said that they do not plan to change the current policies they have in place, effectively discarding Youngkin’s guidance.
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During a news conference with reporters Wednesday in Richmond, the governor criticized the school districts that have rejected the policies.
“These are the same school boards that fought us on whether parents should be deciding whether their child wears a mask or not,” Youngkin said, referring to his 2022 executive order making masking optional in school. “I think they were wrong on all these issues, and I know they’re wrong here. And eventually we’ll get it right.”
When pressed on what measures of enforcement the state could take, Youngkin said: “I just ask you to stand by. Just stay by.”
The next day, Virginia Attorney General Jason S. Miyares (R) released an advisory opinion stating the model policies complied with state and federal law, and school districts around the state were required to adopt policies that are “consistent with these policies.”
Carl Tobias, a professor at the University of Richmond School of Law, said the opinion from Miyares was not binding. But he said it and the statements from Youngkin seemed to suggest that the administration could take legal action against school districts that reject the policies.
“He’s laying out the argument for what’s coming,” Tobias said of the opinion.
Miyares spokeswoman Victoria LaCivita said in a statement that school boards are now “on notice of their legal obligation to adopt policies consistent” with guidance. She said parents can sue if a board voted not to do so.
“Our office will be monitoring all litigation and will be prepared to participate where doing so is appropriate and parents have valid claims,” LaCivita said.
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Scott Brabrand, executive director of the Virginia Association of School Superintendents, said his organization has not taken an official stance on how districts should approach the policies, but has offered guidance to superintendents as they voiced confusion and frustration on how to move forward.
“The model policies certainly have taken up a disproportionate amount of school board and superintendent time these last couple of years,” Brabrand said. “I think a fair question is, is a law creating a model policy, a good policy?”
The policies stem from a 2020 law that directed the Virginia Department of Education to develop guidance to address “common issues regarding transgender students in accordance with evidence-based best practices and include information, guidance, procedures, and standards.” The law, introduced by Democratic lawmakers, was intended to add protections for transgender students in K-12 public schools. The Northam administration released an initial set of guidance in 2021.
Youngkin took office in 2022. In September, his administration released an initial a set of revised guidelines that drew sharp criticism from LGBTQ+ advocates and students, and praise from Youngkin’s supporters and some parents who saw the changes as a win for “parental rights.” Officials delayed implementation last year to give the state education department time to review more than 70,000 public comments submitted about the guidance.
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The new model policies outline four main principles: Schools shall respect all students; parents have the right to make decisions with respect to their children; schools shall serve the needs of all students; and schools shall partner with parents. It then offers sample language that school boards can use. Districts are expected to adopt policies that are “consistent with, but may be more comprehensive than” the model guidelines.
“Much of the confusion and chaos that we anticipated back in 2022 when the Department of Education first released to these proposed model policies, it’s happening, it’s happening now,” said Breanna Diaz, policy and legislative counsel for the ACLU of Virginia.
Officials of Fairfax and Prince William schools told families that they planned to maintain their existing policies, as did Arlington County. Richmond Public Schools Superintendent Jason Kamras tweeted that he would recommend that the board rejects the updated policies.
“We believe that supporting our students and working with parents and caregivers are not mutually exclusive; we already do both and will continue to do so,” Fairfax Superintendent Michelle Reid wrote in a letter to families earlier this month.
Alexandria City Public Schools board member and former chair Meagan L. Alderton said in a statement last month that the board had not yet discussed the model policies but “continues its commitment to supporting students, staff and families through policies that align with its Strategic Plan: Equity for All.”
Many other school districts have not yet arrived at a decision. A spokesperson for Pulaski County in southwest Virginia said the school division was waiting for information from its lawyers before discussing the issue.
“As you can imagine, most attorneys are currently swamped with the 300+ school divisions requesting guidance in clarification on this subject,” communications director David Gravely said in an email.
In Craig County, one of the smallest school divisions in the state serving about 480 students, a school official said the division also had not made a decision but fully supports “the intention of the policies introduced by the Youngkin Administration.”
Meanwhile, in Virginia Beach, the debate about the model policies has been ongoing. On Aug. 22, the board rejected a resolution to immediately implement the policies in a 5-5 vote with one board member abstaining. The vote came after hours of debate on the intent of the policies and the practicality of rolling out new guidance — especially around expectations of teachers to notify parents when a student goes by a different name in the classroom.
The patchwork of policies and decisions about whether to adopt the new model policies was not entirely unexpected. According to Equality Virginia, an LGBTQ+ advocacy group, only 14 of Virginia’s 132 school districts adopted the 2021 VDOE guidance under Northam. Eight school boards partially adopted it and nine school boards rejected it.
A vast majority, 88 school boards, adopted a version proposed by the Virginia School Boards Association, which uses existing policies such as nondiscrimination laws, to satisfy the state’s requirements. Four school boards did not consider any policy, and the status in eight school boards was unclear.
The 2021 policies faced legal challenges from conservative groups, and experts and advocates anticipate that Youngkin’s policies could also face litigation from families or LGBTQ+ groups in school districts that do adopt the policies.
Diaz with the ACLU said that the organization would continue monitoring how school districts respond, and that its Virginia chapter would prioritize legal complaints from counties that have fully adopted the policies.
“There are legal risks both ways,” said Brabrand with the Virginia Association of School Superintendents. “There are legal risks to not following the state model policy that could come from the administration. There’s also legal risks that can come by individuals, students and parents with standing, taking a school district to court.”