When it rains, buckets have to be set out in Prince Edward Elementary to catch the rain. Courtesy of Prince Edward County.

Seven decades and one year ago (not quite the more poetic four score and twenty), Prince Edward County provided the fodder for a landmark legal case – the U.S. Supreme Court’s famous Brown v. Board of Education decision that struck down segregation was the shorthand for five different cases, one of which was Davis v. County School Board of Prince Edward County.

Could Prince Edward County once again be creating the conditions for another legal challenge involving schools, one that could force Virginia to do something it’s proven notoriously reluctant to do – pony up money for school construction?

It would be a delicious irony if the answer turned out to be “yes.” Unfortunately, the answer is probably “no,” maybe even almost certainly “no,” but even the tiniest ray of difference between “almost certainly” and actual certainty is enough to quicken some hearts, and maybe rack up some billable hours for any lawyers with their eyes on history, both past and future.

We need not belabor what happened in Prince Edward County in 1951 – the student walkout that teenager Barbara Johns led at her segregated school, one that began with a complaint over poor physical conditions and eventually turned into a challenge to the very structures of segregation. Instead, let’s look at what’s happening in Prince Edward County in 2022 – an elementary school that perpetually leaks on rainy days.

The cost of fixing those leaks has been estimated at $28,375,000. To raise that kind of money, county administrator Doug Stanley says the county would have to raise the real estate tax by 25.5% – this in one of the poorest counties of Virginia. County officials had a different idea: Why not raise the sales tax instead? One advantage: Anyone passing through the county and stopping to buy a soft drink and a pack of Nabs would have to pay that tax, as well. The only problem: Under Virginia’s system of government, the county had to ask the General Assembly permission to institute such a tax. Some localities have that ability, some don’t. Prince Edward is one of those that doesn’t.

The county’s delegate – Del. Jim Edmunds, R-Halifax County – introduced a bill to make that happen. It got voted down in committee. On the Senate side, Sen. Jennifer McClellan, D-Richmond, had a bill – recommended by the State Commission on School Construction and Modernization – to give every locality that power. It passed the Senate, then met the same fate as Edmunds’ bill in the same House committee.

One of the four legislators who voted against both bills – Del. Bobby Orrock, R-Caroline County – said that “philosophically, I don’t like advocating for a sales tax,” and that he has voted against every extension of it. “I’m not unsympathetic to your needs,” he told a delegation from Prince Edward, “but I hope folks will understand.”

They don’t.

The legislators who voted against the measure may have saved Prince Edward County taxpayers from their philosophical objections but they didn’t save them from a tax increase – the legislators simply changed what kind of tax increase Prince Edward taxpayers will have. Those legislators can console themselves with thinking they voted against a sales tax increase, but they indirectly voted for a property tax increase instead. Where’s the philosophical objection to that?

We can complain about this all we want, but it won’t do any good. Nor can Prince Edward County voters do anything about it, since none of those legislators who voted no represent the county. (For the record, they are Orrock; Del. Kathy Byron, R-Campbell County; Del. Nick Freitas, R-Culpeper County; and Del. Chris Runion, R-Rockingham County. Del. Roxann Robinson, R-Chesterfield County, voted against Edmunds’ bill but was absent for the vote on McClellan’s bill.)

There is one valid objection to a sales tax increase, although this may or may not have been what Orrock had in mind: Sales taxes are regressive. Byron’s objection was somewhat different. “I represent an area that sends us here to hold back on taxes, and they don’t want us to put everything in a referendum back to them,” she said. Prince Edward voters probably want to hold the line on taxes, too – they did vote Republican in last fall’s election – but they’d also like a school that doesn’t leak. How can we reconcile those two desires?

The best solution would be for the state to get involved in helping localities with school construction. The state government has far more ways to raise revenue. Right now, Richmond seems to be rolling in so much cash that it’s in the rare position of being able to both cut taxes and still increase spending.

The General Assembly, though, has provided remarkably resistant to any idea of state funding for school construction. For decades, in fact. There’s a chance this year’s budget will include some funding – the two chambers have different ideas of how that should be done, so that will have to be worked out in conference – but whatever the amount, whatever the method, it won’t be nearly enough. The Senate wants a one-time infusion of $500 million. The House has a more long-term funding proposal but it still involves localities putting up a lot of their own money to get to $2 billion – money that localities such as Prince Edward County simply don’t have. In any case, the backlog of construction and modernization needs is estimated at $25 billion. It’s hard to know what will persuade the legislature, since most of the opposition seems geographical – legislators from outnumbered rural areas are generally in favor (the legislators who voted down the Edmunds and McClellan bills are interesting exceptions), legislators from affluent suburban areas generally say it’s not their problem. (They say it more diplomatically, of course, but that’s what they’re really saying.)

Some problems can be fixed simply by changing parties: If you think gun laws are too restrictive and should be loosened, then you should elect a Republican General Assembly. If you think gun laws are too loose and should be tightened further, then you should elect a Democratic General Assembly. State funding for school construction doesn’t break neatly along party lines like that. There are Republicans and Democrats on each side of the state funding for school construction issue; this year it was Republicans who blocked the sales tax bills but there were other Republicans (shout-out to Del. Israel O’Quinn, R-Washington County) who pushed through other funding schemes. This year it was Senate Democrats who passed McClellan’s bill out of the Senate, but in previous years it was House Democrats who killed other measures to get the state into the school construction business. That makes all this politically fascinating to watch but also frustrating to fix. The most immediate solution – beyond whatever the legislature does this year – is to hope that state Sen. Bill Stanley, R-Franklin County, is able next year to get through his call for a $4 billion bond issue. Or try to figure out how to get Gov. Glenn Youngkin interested in the subject – so far, he’s shown none, which is perplexing, considering how politically indebted he is to rural Virginia.

Or … is there another avenue?

The Farmville Herald last week reported that some in Prince Edward County are now looking for one. The paper quoted one parent as saying that there is “anger fomenting now” and that “the citizens are dusting off their old civic textbooks and looking around for legal levers to pull to get their elected representatives to make a change.”

What “legal levers” might they find?

I suspect they won’t find any. Or will they?

The Virginia Constitution intentionally doesn’t offer any hope. It says the General Assembly “shall seek to ensure that an educational program of high quality is established and continually maintained.” That sounds impressive until you consider the operative phrase – “shall seek to ensure.” That’s not a mandate; it’s merely aspirational. The Virginia Supreme Court ruled as much in 1994 when a group of mostly rural school systems sued the state, alleging that the state’s system of school funding was unconstitutional on the grounds that it created vast disparities between poor systems and affluent ones.

Four years ago, Stanley tried another tack. Being the clever lawyer that he is, he cited the Supreme Court’s Brown decision. There were actually two Brown decisions. The first declared segregated schools unconstitutional. A year later, it issued another ruling – known as Brown II – in which it ordered schools to desegregate “with all deliberate speed.” The Supreme Court then proceeded to list various things that lower courts should consider as they oversaw integration plans. One of the considerations was “the physical condition of the school plant,” the implication being that a poor physical condition of a school – in those days, presumably a Black school – was evidence that the school system was in violation of the court ruling.

In 2018, Stanley asked for an attorney general’s opinion from then-Attorney General Mark Herring asking if Virginia was violating the Brown decision by operating schools that were in poor physical condition. In legal terms, this seemed the equivalent of a Hail Mary football throw – politically fascinating, since Stanley’s a Republican and Herring a Democrat.

Herring could have said yes, and thrown the state into turmoil – but also possibly gone down in history as the attorney general who mandated better school conditions.

Instead, he didn’t take the bait. In an opinion issued in January 2019, Herring basically said since there was no allegation of racial discrimination, then the Brown II decision didn’t apply. “Brown II is premised on the finding of racial segregation in public schools,” Herring wrote. “In your letter, however, you do not assert the poor physical conditions of some schools results from racial discrimination.”

On that score, Herring is right: Those conditions result from poverty, not racism. At the time, the textbook examples of what then-Gov. Ralph Northam called “crumbling schools” were in Lee County – a county that’s only 3.9% Black. Someone could try to persuade a legislator – perhaps Stanley again? – to file the same request for an attorney general’s opinion, this time with a different attorney general. Would Jason Miyares answer any differently? Probably not.

So what then?

There is at least one other legal avenue some potential plaintiffs might try. In 2018, when I was with The Roanoke Times, I interviewed two legal scholars who said those 1994 plaintiffs had made the wrong argument. David Sciarra of the Education Law Center at Rutgers University and Derek Black, a law professor at the University of South Carolina, had both studied that 1994 case. The argument then focused on unequal funding. They believe that was the wrong argument. They said the plaintiffs should instead argue that Virginia has failed to meet its standard to maintain “an educational program of high quality.”

Now, I’m not a lawyer, so ultimately I must defer to those who are, but this seems weak to me, since the Virginia Supreme Court has already said the operative phrase is that aspirational “shall seek to ensure.” But Black and Sciarra said then that there was a different constitution at play – the U.S. Constitution and the 14th Amendment.

Some history they didn’t teach us in school: Northern Unionists felt the Civil War arose from the South’s ignorance. In the view of the North, poor white Southerners had been suckered into supporting a slaveholder’s Confederacy. Not a single Southern state had a public school system. Now, after the Civil War, there were freed slaves who weren’t educated, either. Northerners didn’t think the South was a democracy; they thought it was an oligarchy where a relative handful of rich plantation owners ruled over an uneducated mass of everyone else. If the South was to be a true democracy, then Southerners needed to be educated. That meant Southern states needed public school systems, so Congress insisted that each former Confederate state create one before it was readmitted to the Union. In the case of the last three states readmitted – Mississippi, Texas and Virginia in 1870 – Congress went beyond insisting. It wrote that into each state’s readmission act. In the case of Virginia, it says “the constitution of Virginia shall never be amended or changed as to deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the constitution of said State.”

That, Black argued, is the legal opening. Sue in federal court and argue that Virginia has, indeed, deprived certain Virginia students of their state constitutional rights to an “educational program of high quality.” That seems shaky to me, since that argument rests on something that the state’s highest court has found isn’t a real mandate, but, hey, I’m not a judge, either. The argument also rests on a connection between leaky roofs and educational excellence. Schools that leak so badly teachers have to set out buckets are bad – but nobody is alleging the students aren’t getting quality instruction. They may just be getting quality instruction in a bad building. Is that enough to trigger some legal threshold – especially since Virginia has never spelled out standards for a school building?

I’m skeptical, but would a suit alleging such things spook the state into some action? Would any state officials really want to defend leaky roofs as irrelevant to the educational experience? I’d sure like to see them try. Maybe there are other obscure passages in some law book somewhere that someone could use. Frankly, I hope they can.

Unless they do, though, the only lever is a political one, not a legal one. Youngkin spent much of his campaign talking about schools. He wants critical race theory out, standards of excellence in. He wants charter school or lab schools or whatever we’re calling them now. He wants lots of other things. But why is he so silent on the physical condition of many schools – many of which, like the one in Prince Edward County, are in localities that voted for him? Youngkin made a point of endorsing a state authority to help the Washington Commanders build a football stadium in Northern Virginia. Even if not a single tax dollar goes into that stadium, as supporters vow, there’s still a matter of appearances: Virginia is passing a law so that we have a gleaming new football stadium, while we have schools where we have buckets catching the rain. Is that really the image we want to project to the world – that we care more about a billionaire’s luxury boxes than we do school kids in some rural counties (and not always rural counties, either)? Because right now, that’s the image we’re projecting and I can’t for the life of me understand why the governor isn’t as outraged about that as he is some other things. 

Dwayne Yancey

Yancey is editor of Cardinal News. His opinions are his own. You can reach him at dwayne@cardinalnews.org.