Can a Virginia county board of supervisors tell the school board where to build new schools and how to consolidate?

Plain-English summary

Delegate Kilgore asked about a high-stakes dispute in Wise County. The Board of Supervisors had passed a resolution committing $69 million for a consolidation plan that would close most existing high schools, build two new schools on one site (with St. Paul High School converted to K-12), and locate the new facilities within a defined radius of certain highways. The School Board, in turn, voted to consider both that proposal and an alternative as competing consolidation plans, with a public hearing to decide between them. Could the Board of Supervisors actually instruct the School Board how to consolidate?

The AG concluded no. A Virginia school board has exclusive authority over school consolidation decisions. The Board of Supervisors can recommend a plan, fund certain budget categories, and express preferences. But the ultimate consolidation decision rests with the School Board.

The constitutional and statutory split:

• Art. VIII, § 7 and § 22.1-28. "The supervision of schools in each school division shall be vested in a school board." This is a constitutional command.
• By statute, school boards are given the responsibility to "[p]rovide for the consolidation of schools."

The Board of Supervisors' authority is limited to funding:

• The county board of supervisors determines a county's funding for its schools.
• The board may appropriate either a lump sum or by major classifications, but it may not issue specific binding instructions on how the appropriated funds are spent within those categories. Within the major classifications, the school board has discretion in deciding how the money will be spent.

The opinion also notes that the authority to manage and construct school property rests with the school board, not the board of supervisors.

The opinion states that the Board of Supervisors may not use its appropriations to control whether or how the School Board consolidates schools. The consolidation decision belongs to the School Board.

The Board of Supervisors may express its preference and recommend a plan. Its recommendations have no controlling effect on the School Board. The Wise County School Board voted to consider the supervisors' proposal alongside another plan.

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.

Anyone analyzing a current school consolidation dispute should check present law.

Common questions

Why doesn't paying for the schools give the supervisors more say?
The Constitution vests supervision of schools in a school board, and the statute assigns consolidation to that board. Although the supervisors determine school funding, the opinion says they may not control the consolidation decision through appropriations.

Can the supervisors use appropriations to force their preferred consolidation plan?
No. The opinion expressly says a board of supervisors "may not control through its appropriation of funds a school board's decision whether and how to consolidate schools." Supervisors may appropriate funds as a lump sum or by major classifications and may recommend a plan, but the recommendation does not bind the school board.

Can supervisors recommend a consolidation plan?
Yes. The opinion says they may express their desire about spending and recommend a particular plan. Their recommendation has no controlling effect on the school board's decision.

Can a school board ignore the Board of Supervisors entirely?
The school board remains subject to appropriations by major classification and may not transfer appropriated funds between classifications. Within a classification, it decides how to spend those funds. The opinion assigns the consolidation decision to the school board.

Background and statutory framework

The constitutional anchor:

• Va. Const. art. VIII, § 7. Supervision of schools in each school division vested in a school board.

The statutory grants of authority:

• § 22.1-28. Supervision of schools in each school division vested in a school board.
• By statute, school board duties include providing for the consolidation of schools.

Board of Supervisors limits, as described in the opinion:

• The board of supervisors determines a county's school funding and may appropriate as a lump sum or by major classifications.
• It may not issue specific binding instructions on how funds are spent within those classifications; within a classification, the school board has discretion.
• The authority to manage and construct school property rests with the school board.

The consolidation question fits the pattern: a major operational decision that the General Assembly has committed to the school board.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 22.1-28
• Va. Const. art. VIII, § 7
• School-board consolidation duty (quoted in the opinion without a section number)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-118-(Kilgore).pdf

Original opinion text

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

December 8, 2010

The Honorable Terry G. Kilgore
Member, House of Delegates
Post Office Box 669
Gate City, Virginia 24251

Dear Delegate Kilgore:

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 a county board of supervisors can instruct a school board how to consolidate its schools.

Response

It is my opinion that a school board is solely responsible for the decision whether and how to consolidate schools, and a county board of supervisors may not instruct the school board to consolidate schools or how to consolidate schools.

Background

You indicate that the Board of Supervisors of Wise County has enacted a resolution to fund Wise County High Schools. The resolution provides in part that

The majority of Wise County Board of Supervisors, as an alternative to the current plan, accordingly commits the sum of ($69M) Sixty-Nine million for a plan of consolidation that supports the construction of two new schools on one site that would service all existing high schools with the exception of St. Paul High School, which would be converted to a K-12 school model, with the new facilities to be located within 4 to 5 mile radius of Highways 23 and 58 and 8th grade stays at Appalachia Elementary.

In response, the School Board voted a motion stating that

In an effort to increase the efficiency of the school division, to improve the curriculum offering for all students, and to improve the instructional program, I move that we consider this 2 on 1 site proposal, as presented here tonight, as a proposed plan of consolidation and that we direct the Superintendent to establish a public hearing for community consideration of both proposed plans of consolidation on November 29, 2010 at the J. J. Kelly auditorium at 7:00 p.m. and that immediately thereafter we vote whether to accept one of the proposed plans as our plan of consolidation.

Applicable Law and Discussion

Article VIII, § 7 of the Constitution of Virginia and § 22.1-28 of the Code of Virginia provide that "[t]he supervision of schools in each school division shall be vested in a school board." By statute, school boards are given the responsibility to, among other things, "[p]rovide for the consolidation of schools."

A county's funding for a county's schools is determined by the county board of supervisors. The board of supervisors may make its appropriation for the schools as a lump sum, or it may appropriate the funds based upon major classifications. A board of supervisors, however, may not issue specific binding instructions regarding how the appropriated funds are to be spent within those categories. If the board of supervisors has appropriated funds based upon the prescribed classifications, "[t]he school board may not transfer appropriated funds from one classification to another, but within the major classifications of appropriated funds it has discretion in deciding how monies will be spent." In addition, not only is the authority for school consolidation expressly vested with the school board, but also the authority to manage and construct school property rests with the school board.

In light of the exclusive authority of the school board to provide for consolidation of schools, and the limited authority of a board of supervisors with respect to school funding, a board of supervisors may not control through its appropriation of funds a school board's decision whether and how to consolidate schools in a particular county. A board of supervisors, nonetheless, is free to express its desire concerning how certain funds should be spent. Therefore, the Board in this instance can recommend the adoption of a particular plan for school consolidation. Such recommendations, however, "have no controlling effect upon the school board" because the ultimate responsibility for a plan of school consolidation rests with the school board.

Conclusion

Accordingly, it is my opinion that a school board is solely responsible for the decision whether and how to consolidate schools, and a county board of supervisors may not instruct the school board to consolidate schools or how to consolidate schools.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General