Can Virginia force local school boards to start school after Labor Day, or does that intrude on local control of schools?

Plain-English summary

Delegate Robert Tata asked whether it is constitutional for the Commonwealth to deny an elected school board the right to set the school calendar's starting date. The statute at issue, § 22.1-79.1 (commonly called the "Kings Dominion law"), directs local school boards to open school after Labor Day. The statute, § 22.1-79.1, was first enacted in 1986 and made permanent in 1998; it permits the State Board of Education to grant good-cause waivers, which by 2009-2010 had been issued to about 76 of Virginia's 130-plus districts (58 for weather/emergency causes, 13 for dependent programs, and 5 for experimental or innovative programs).

AG Cuccinelli declined to declare the statute unconstitutional. The Virginia Constitution divides school-governance authority. Article VIII, § 7 vests "[t]he supervision of schools in each school division … in a school board." Articles IV (legislative power), VIII, § 1 (free public schools), and VII frame the General Assembly's broader role. The Virginia Supreme Court applies a strong presumption of constitutionality, requiring courts to find a clear contradiction with the Constitution before invalidating an act (City of Roanoke v. James W. Michael's Bakery; Hunton v. Commonwealth). Virginia AGs have consistently followed the practice of refusing to declare a statute unconstitutional unless the contradiction is clear beyond a reasonable doubt, in part because the AG, unlike a court, has no power to invalidate a statute and an unsupported declaration would tell agencies to ignore validly enacted law.

A 1985 AG opinion (1984-1985 Op. Va. Att'y Gen. 269) had already concluded that "the General Assembly to mandate that the opening date for public schools be no earlier than Labor Day" was constitutionally permissible. That earlier opinion addressed a flat rule; the current statute is more flexible (waivers available) and so was, if anything, easier to defend.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What kinds of 'good cause' waivers had the Board of Education granted?
A: For the 2009-2010 school year, the opinion reported three categories of waivers the Board had authorized: emergency or weather-related causes (58 divisions), dependent programs shared with another division (13 divisions), and experimental or innovative programs (5 divisions). The opinion did not lay out the detailed statutory test for each category.

Q: Why is the AG cautious about declaring statutes unconstitutional?
A: The AG's opinion is persuasive but not binding. Declaring a statute unconstitutional effectively tells the executive branch to ignore validly enacted law. The AG declined to do that unless unconstitutionality is clear beyond reasonable doubt, leaving the question to the courts.

Q: Does this mean school start date is purely a state matter?
A: Not purely. Article VIII, § 7 still vests "supervision" of schools in local school boards. The General Assembly sets some calendar parameters; local school boards make most operational decisions inside those parameters.

Q: How long has the post-Labor Day rule been on the books?
A: The opinion traces it back to the 1986 Session, which enacted § 22.1-79.1 with a sunset set for July 1, 1988. The General Assembly removed the sunset in 1998, and the definition of "good cause" was added later. The original directive (students start after Labor Day, with Board waivers for good cause) is now § 22.1-79.1(A).

Background and statutory framework

Article VIII, § 7 of the Virginia Constitution: "The supervision of schools in each school division shall be vested in a school board." Article VIII, § 1 makes free public education the constitutional norm. Article IV, § 1 vests legislative power in the General Assembly. The constitutional scheme thus contemplates layered authority, with the General Assembly, the State Board of Education, the Superintendent of Public Instruction, and local school boards each playing a role.

Section 22.1-79.1 went through several iterations: enacted in 1986 with a 1988 sunset; sunset removed in 1998; good-cause definitions added in 2003. By 2010 it directed local boards to set the first student day after Labor Day, with three waiver categories.

The Virginia Supreme Court cases the opinion relied on (City of Roanoke v. James W. Michael's Bakery, Hunton v. Commonwealth) are the foundational presumption-of-constitutionality decisions. Both are Virginia Supreme Court of Appeals cases, despite the federal-sounding "v. Commonwealth" style, and the reporter citations to Virginia Reports (Va.) and South Eastern Reporter (S.E.) make that clear.

Citations

• Va. Code Ann. § 22.1-79.1 (post-Labor Day school start; good-cause waivers)
• Va. Const. art. VIII, § 7 (local school board supervision)
• Va. Const. art. VIII, § 1 (free public education)
• City of Roanoke v. James W. Michael's Bakery, 180 Va. 132 (1942) (presumption of constitutionality)
• 1984-1985 Op. Va. Att'y Gen. 269 (earlier opinion upholding post-Labor Day mandate)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-034_Tata.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

May 24, 2010

The Honorable Robert Tata
Member, House of Delegates
4536 Gleneagle Drive
Virginia Beach, Virginia 23462

Dear Delegate Tata:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether it is constitutional for the Commonwealth of Virginia to deny an elected school board the right to determine the starting date for the school calendar.

Response

I am unable to conclude that § 22.1-79.1, which directs school boards to set the starting date for students after Labor Day, is unconstitutional.

Background

You relate that there are more than 130 school districts in Virginia. You further note that the State Board of Education permits seventy-four of these districts to set their own school calendars due to inclement weather and for other reasons. You note that § 22.1-79.1 directs local school boards to set the school calendar so that the opening day for students falls after Labor Day, except for "good cause." Although you do not specifically inquire about § 22.1-79.1, I must assume that your inquiry is directed to the constitutionality of that statute.

Applicable Law and Discussion

A prior opinion of the Attorney General has observed that

The Constitution of Virginia "apportions various responsibilities for the creation and maintenance of Virginia's system of public education among the General Assembly, the State Board of Education, and the local school boards." Article VII of the Virginia Constitution vests the broader, statewide responsibilities in the General Assembly, in the State Board, and in the Superintendent of Public Instruction. Article VIII, § 7, provides that "[t]he supervision of schools in each school division shall be vested in a school board." The constitutional scheme for public education makes the authority and responsibilities of local school boards subject to direction and limitation from the State Board and the General Assembly.

Consistent with this scheme, the 1986 Session of the General Assembly enacted § 22.1-79.1, which provided that:

Each local school board shall set the school calendar so that the first day students are required to attend school shall be after Labor Day. The Board of Education may waive this requirement on a showing of good cause.

By its terms, the legislation was to expire on July 1, 1988. The sunset provision was removed in 1998, and the definition of "good cause" was later added. The original language has remained unchanged in the current version of the law, now codified as § 22.1-79.1(A).

According to the Department of Education for the 2009-2010 school year, the Board of Education authorized fifty-eight school divisions to begin their school calendars prior to Labor Day for emergency or weather-related causes, thirteen for dependent programs, and five divisions were permitted to have one or more schools open prior to Labor Day to accommodate experimental or innovative programs.

A statute is not to be declared unconstitutional unless the court is driven to that conclusion. "Every reasonable doubt should be resolved in favor of the constitutionality of an act of the legislature." Following this doctrine, it has been a long-standing practice of Virginia's Attorneys General to refrain from declaring a statute unconstitutional unless its unconstitutionality is clear beyond a reasonable doubt. This practice has its origins in well-founded considerations. Unlike a court, the Attorney General has no power to invalidate a statute. Thus, when an Attorney General opines that a statute violates the Constitution, that statute nevertheless remains in force. Further, by opining that a statute is unconstitutional, an Attorney General, in effect, is advising the enforcing state agency to ignore the statute. Unless an Attorney General is certain beyond a reasonable doubt that a reviewing court would strike down the statute, he should not opine that a statute is unconstitutional.

No Court has declared this statute unconstitutional, nor do I find any controlling decision on point. A prior opinion of the Attorney General ("1985 Opinion") determined that it was "constitutionally permissible for the General Assembly to mandate that the opening date for public schools be no earlier than Labor Day," noting that:

[T]he General Assembly would be extending its previously mandated number of instructional days to specify that the school year may not commence before a specified date.… I do not view this requirement as an intolerable intrusion into the prerogatives reserved to the local school boards by Art. VIII, § 7. Establishment of a beginning date is within the power reserved to the General Assembly by Art. IV, § 1, as well as Art. VIII, § 1, and cannot be said to be in derogation of the powers reserved to local units of government for supervising the schools. Setting the date for the commencement of the school year can be analogized with the designation of holidays or days when schools must be closed, a prerogative of the legislative branch of government.

The 1985 Opinion addressed a blanket prohibition of a pre-Labor Day school calendar and not the more flexible program contained in current law.

Conclusion

Accordingly, I am unable to conclude that § 22.1-79.1, which directs school boards to set the starting date for students after Labor Day is unconstitutional.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General