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Poor timing means three state education board seats lie vacant

Tall building with parking structure
The Virginia Department of Education building in downtown Richmond. (Photo: Crixell Matthews/VPM News)

While the governor appoints new members to the state Board of Education, the state constitution stipulates that the appointments are subject to confirmation from the Virginia General Assembly.

Because two of former Gov. Ralph Northam’s appointments last year – those for Anthony Swann and Stewart Roberson – were made during the middle of the 2021 General Assembly session, Virginia’s former Secretary of the Commonwealth Kelly Thomasson said it was determined to be too late to send those appointments to the Democrat-controlled House and Senate to confirm them.

Thomasson says it was a matter of logistics and timing although there’s no “hard and fast rule” for when appointees can be sent to lawmakers for confirmation.

“We talk to staff for the chairs of P&E [privileges and elections] and the clerk staff, and we say, ‘ok, when’s the last time you want us to communicate appointments?’” Thomasson said.

Because she says it’s “really sort of a perfunctory, proforma thing that happens,” she didn’t think that not sending the appointees to lawmakers for approval last session would be a big deal. In retrospect, she regrets not sending them earlier.

“If we had only known – and had a crystal ball – then I certainly would have been like, ‘hey, guys, we’re going to make these appointments real quick,’” Thomasson said.

Since Swann and Roberson were not confirmed by the General Assembly last year, their appointment was subject to the legislature’s approval this year – with a GOP-controlled House of Delegates.

A few days after the Democrat-controlled Senate blocked Youngkin’s pick for Secretary of Natural and Historic Resources, Andrew Wheeler, the House of Delegates voted not to confirm 11 Northam appointees to several state boards – after 6 p.m. on a Friday night. They included nominees for the Air Pollution Control Board, the State Water Control Board, the Safety and Health Codes Board and the Virginia Marine Resources Commission.

House Majority Leader Terry Kilgore (R-Scott) told the Virginia Mercury that the move was “just a matter of Glenn Youngkin getting his picks…That way, he can appoint most members and move forward with his priorities.”

Thomasson, who served as secretary of the commonwealth under former Gov. Terry McAuliffe as well as Northam, is upset, particularly in light of how her office handled board appointments from former Gov. Bob McDonell’s administration. 

“We had a situation where we had 40-some appointees [from McDonnell] who had been serving on their boards who were about to get kicked off because the secretary of the commonwealth staff failed to communicate those to the General Assembly for confirmation,” Thomasson said.

“We did the right thing, and we reappointed all of those people and communicated them to the General Assembly so they could serve. And this was on a wide range of boards from the tobacco commission and the offshore wind development authority,” she said. “We could’ve played politics and said…we’re gonna make [our own] appointments.”

Educator’s confirmation left on House floor

Three of the 11 blocked for confirmation were Northam appointees to the Virginia Board of Education. Two appointees – Stewart Roberson and Anthony Swann – have been serving on the board for the past year, since their appointment last February.

Swann was also named Virginia Teacher of the Year in 2021. He was the only actively serving public school teacher on the board; he’s a sixth-grade math coach at Benjamin Franklin Middle School in Franklin County. He also has two education degrees.

“So for me not to be confirmed… it speaks a lot about the hidden agendas of people,” Swann told VPM News. “What better voice to have on the state Board of Education than an educator? We know what we need, we're on the frontlines.

“If we're making decisions without the best interest of the children or the teachers, then something is wrong,” Swann said. “Parents should have a voice, however, teachers and students should also have a voice, as well as administrators. And so making decisions based off of one sector of people… that's not a professional thing to do, especially when it comes to education.”

Swann, who spent most of his childhood in foster care, understands firsthand the positive impact educators can have on students’ self-esteem. He gives his students Christmas presents every year to make sure they feel loved. While he’s disappointed about no longer serving on the state board of education, he says he’ll continue to advocate for students and educators across Virginia.

“I am a well-educated Black man that has fought through many challenges and hardships in order to get to where I am today. I do not believe in serving politics. I believe in serving children,” Swann said. “Our profession of teaching should never and I repeat - never be politicized for a hidden agenda. Teachers and students should be humanized now, more than ever.”

Adult and child handle beaker
Anthony Swann, Virginia's 2020 teacher of the year, works with students. (Photo courtesy of Swann)

Swann says his teaching experience brought a vital perspective to the education board. He was able to share details of his own experience taking the Praxis test – required for teacher certification – and other factors contributing to a teacher shortage. Swann says he’s had to cheer on his own wife, also a teacher for Franklin County Public Schools, who has contemplated leaving the teaching profession recently.

“I cannot tell you how many times I've had to beg her not to quit in the last two years. I can't even tell you how many times she has come home crying her eyes out because she's just so tired and feels unappreciated and feels disrespected. And, you know, just to constantly remind her of her why, but sometimes, to be honest, a person's why just isn’t good enough,” Swann said.

“It is more than just the coronavirus pandemic, we're in the pandemic of the attack on education, we’re in the pandemic of inequities within education. And so, for teachers to feel all of this, during this time, it really says a lot about where we are.”

Swann has the backing of 2022 Virginia Teacher of the Year Daphne Fulson, who teaches in Chesapeake.

“We [teachers] need representation, we need a voice,” Fulson said. “Anthony is a believer in making sure that equity of access is prominent in all areas of education. And also speaking for educators inside the classroom, making sure our socio-emotional needs are being addressed. And making sure that we have the things that we need physically, as far as resources.

“Anthony being removed from the board…being a Black man… I'm not going to tiptoe around the idea that that's not important. It is important. And it makes us wonder, why is this Black man being struck from the board? Where’s the representation there?” Fulson said. “It's concerning, especially for me, as a Black woman, I want to make sure that there's someone that can speak up for me.”

Swann says he’s visited about 50 schools across the state as teacher of the year, which he says has inspired students to ask questions about how they can get involved in voicing concerns.

“When they [students] see Anthony advocate for them, that fuels a fire for them to reciprocate and give back to their community in a similar way,” Fulson said. “They say, wow, look at this Black man standing up for me and doing these great things… I can do something like that, too.”

Following Massive Resistance, state constitution sought to insulate education

According to southern historian James Hershman, the last time there was so much public controversy over state Board of Education appointments in Virginia was during the Massive Resistance era.

In 1957, then-Gov. Thomas Stanley refused to reappoint two members to the state education board who had not supported massive resistance laws designed to close schools rather than integrate them. He replaced them with massive resistance supporters.

“He directly punished Blake Newton and replaced him,” Hershman said. Newton was replaced with Garland Gray, who successfully spearheaded a fight to enact the Stanley plan that ultimately led to school closures in defiance of court orders to desegregate. 

Because of Massive Resistance, changes were made to the state constitution in 1971in an attempt to limit any sole governor’s political influence on education policy decisions.

Youngkin’s administration did not respond to questions by deadline Tuesday about who his team plans to appoint to the board’s newly vacant three seats, when they plan to do so and why the confirmations of Swann, Roberson and Wilson were not recommended to the legislature. 

Right now, according to the board’s bylaws, a quorum of four members is necessary to conduct meetings, and as few as three could vote to change state education policy. The board is responsible for authorizing new lab schools, one of Youngkin’s campaign promises.

The terms of two additional board members – Keisha Anderson and Francisco Durán – are set to expire on June 30, 2022. At that time, if new appointments are not made, two members at a three-member meeting could dictate policy.

The legal path forward to replace them – as well as Wilson, Roberson and Swann – is uncertain because of language in the state constitution that makes clear that no more than three regular appointments can be made to the nine-member education board in any given year.

Dick Howard, executive director of the 1971 Commission on Constitutional Revision, told VPM News in a recent interview that the commission recommended staggered Board of Education appointments to ensure that “some time has to pass before a new governor can put his stamp on the board” and to “keep the schools from being buffeted about every time there is an election.”

Catherine Ward, a law school student at the University of Virginia who has studied the state constitution, says before the 1971 revisions to the state constitution, there hadn’t ever been language requiring staggered terms for education board appointments.

“They had this emphasis – really, for the first time – on terms being staggered,” Ward said. “Most of the debate previously was really focused on who would be appointed, how many members there would be and what their tenure would be.”

Ward says it’s important to point out that the 1971 committee emphasized a technocratic approach to education.

“I think the apolitical nature of the board can't be stressed enough, based on the commission on constitutional revision’s original goals,” Ward said. “Now, today, we're seeing much more debate that appears to be perhaps politicizing the Board of Education. And I think we need to focus on what the goals of the drafters really were.”

Constitutional expert Derek Black says what’s happening in Virginia reminds him of what happened in Kentucky, where Gov. Andy Beshear ousted numerous members of the Kentucky Board of Education on his first day in office.

“It is a power grab that is really outside of the original understanding of the constitutional design,” Black said. “They're [board members] supposed to exercise independent judgment. And now what you have are political actors trying to remove or replace people not so that they will exercise independent judgment and do what's appropriate for the schools, but so they'll just do whatever the current governor wants them to do.”