Do Virginia private preschool teachers need a state teacher license to be paid with public Lottery funds?

Plain-English summary

The Virginia Preschool Initiative ("VPI") funds preschool services for at-risk four-year-olds and the legislature wanted to use VPI dollars in both public schools and private child-care facilities. Delegate Landes asked two questions: (1) must private preschool teachers be licensed by VDOE, and (2) can Lottery proceeds fund the VPI in private settings.

On the first question, the AG concluded that § 22.1-299 unambiguously bars paying any teacher from public funds unless that teacher holds a VDOE license (the sole exception being substitute teachers hired for an emergency). VDOE regulations required a baccalaureate degree for a teacher license. Many private preschool teachers held different credentials such as a Child Development Associate certificate or an associate degree, which did not qualify. So if a private preschool teacher was paid from any public funds, including VPI dollars sourced from the Lottery Proceeds Fund, the teacher had to hold a VDOE teacher license.

On the second question, the AG concluded that the Lottery Proceeds Fund could fund the VPI in nonsectarian preschools because the VPI is a form of "public education." Article VIII, § 10 of the Virginia Constitution explicitly recognizes that nonsectarian private schools can perform educational purposes, and the General Assembly was aware of that provision when it proposed the 2000 constitutional amendment (now Article X, § 7-A) directing Lottery proceeds to "public education." Because VPI is administered by VDOE and the Appropriation Act funded VPI from the Lottery Fund, the funding was lawful.

Currency note

This opinion was issued in 2016. 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.

VDOE teacher-licensing regulations and the VPI funding rules have evolved since 2016. Anyone setting up a private-preschool partnership today should check the current text of § 22.1-299, current 8 VAC 20-22 regulations, and the current Appropriation Act provisions for the VPI.

Background and statutory framework

The State Board of Education has not adopted regulations directly requiring licensure of teachers in private preschool facilities. But § 22.1-299 imposes a global rule: no teacher may be paid from public funds unless the teacher holds a license or provisional license issued by the Board of Education. The only exception is a substitute teacher hired temporarily to meet an emergency. The implementing regulation, 8 VAC 20-440-10, defines "teacher" as a regularly employed full-time teacher who holds a valid teaching license, and 8 VAC 20-22-40(A) requires a baccalaureate degree as a condition of licensure.

On the Lottery funding question, the AG traced two constitutional provisions. Article VIII, § 10 (in the Constitution of 1971 as originally ratified) authorized the expenditure of public funds for "educational purposes" in "nonsectarian private schools and institutions of learning," meaning the framers recognized that nonsectarian private schools could perform an "educational purpose." Article X, § 7-A (added by the 2000 voter-ratified amendment) requires Lottery proceeds to be appropriated to counties, cities, towns, and school divisions "to be expended for the purposes of public education." Section 58.1-4022(D) carries the same requirement at the statutory level: 100 percent of Lottery revenues "shall be appropriated entirely and solely for the purpose of public education in the Commonwealth," subject to constitutional redirection. Because VPI is administered by VDOE and was funded through Item 136 of the 2015 Appropriation Act as a "Distribution of Lottery Funds," the General Assembly itself treated the program as public education, and acts of the General Assembly are presumed constitutional (Terry v. Mazur, 234 Va. 442, 449 (1987)).

Common questions

Q: Can a private preschool teacher with a CDA credential teach VPI-funded students?
A: Under the opinion's reading of § 22.1-299, only if paid solely from private funds. If any portion of the teacher's pay comes from public sources (including VPI dollars), the teacher must hold a VDOE teacher license, which requires a baccalaureate degree.

Q: Did the AG reach any First Amendment concerns about using Lottery funds in private preschools?
A: The AG addressed the Virginia constitutional question and concluded the funding fit within "public education." The opinion did not address federal Establishment Clause issues directly, though it limited the conclusion to "nonsectarian" preschools, consistent with Article VIII, § 10.

Q: What if the locality wants to use VPI funds in a private preschool that employs only CDA-credentialed teachers?
A: Under the opinion, the locality could not lawfully pay those teachers with VPI dollars. The locality could partner with private preschools that employ VDOE-licensed teachers or could limit VPI dollars to administrative costs or other non-teacher categories that the appropriation permits.

Q: Was VPI itself constitutional?
A: Yes. The AG concluded that funding VPI from the Lottery Proceeds Fund was lawful because VPI is a form of public education administered by VDOE, even when delivered in private nonsectarian preschool settings.

Citations and references

Statutes and constitutional provisions:

• Va. Const. art. VIII, § 10 (educational purposes; nonsectarian private schools)
• Va. Const. art. X, § 7-A (Lottery Proceeds Fund; public education)
• Va. Code Ann. § 22.1-299 (teacher licensure required for public-fund pay)
• Va. Code Ann. § 58.1-4022(D) (Lottery proceeds appropriation rule)
• 8 Va. Admin. Code § 20-22-40(A) (baccalaureate requirement)
• 8 Va. Admin. Code § 20-440-10 (definition of "teacher")
• 2015 Va. Acts ch. 665, Item 136 (Distribution of Lottery Funds, VPI)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases:

• Terry v. Mazur, 234 Va. 442 (1987)
• Almond v. Gilmer, 188 Va. 822 (1949)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/16-004_Landes_Issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

June 3, 2016

The Honorable R. Steven Landes
Member, House of Delegates
Post Office Box 12
Verona, Virginia 24482

Dear Delegate Landes:

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

Issues Presented

You ask whether early childhood teachers in private child care facilities must be licensed as teachers by the Virginia Department of Education. You also ask whether lottery funds that are distributed to localities may be used to help fund the Virginia Preschool Initiative.

Background

You relate that the state-funded Virginia Preschool Initiative (the "VPI"), which provides funds for at-risk children, is interested in engaging both public schools and private child care facilities. Funds from the program would be provided to support preschool services for at-risk children. The Virginia Department of Education ("VDOE") takes the position that preschool teachers paid with public funds must hold a baccalaureate degree and have a VDOE-approved teacher license (a "teacher license").

While preschool teachers in public preschools have teacher licenses, that is not necessarily true for preschool teachers in private child care facilities. Preschool teachers in private settings have a professional development system different from that of preschool teachers in public settings. Many private preschool teachers have a Child Development Associate credential, a Career Studies Certificate, or an Associate Degree, rather than a baccalaureate degree. Their credentials often are earned from Virginia community colleges with programs established to teach the specialized skills required for effectively teaching young children. You relate that these educational credentials do not qualify the holder for a teacher license.

Applicable Law and Discussion

A. Applicability of VDOE Licensure Requirements to Preschool Teachers in Private Child Care Facilities

The Virginia State Board of Education has not issued any regulations requiring licensure for teachers at private preschool facilities. However, § 22.1-299 of the Code of Virginia requires, in relevant part, that all teachers paid from public funds must have teacher licenses, with the sole exception of substitute teachers hired to meet an emergency:

No teacher shall be . . . paid from public funds unless such teacher holds a license or provisional license issued by the Board of Education . . . . In accordance with regulations prescribed by the Board, a person not meeting the requirements for a license or provisional license may be employed and paid from public funds by a school board temporarily as a substitute teacher to meet an emergency.

A regulation duly promulgated by the State Board of Education defines a "teacher" as "a person who (i) is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license." One of the requirements for being licensed as a teacher is to have a baccalaureate degree.

Based on the foregoing, I conclude that, so long as they are paid solely from private funds, teachers in private child care facilities are not required to have a teacher license. However, if they are paid from public funds, the Code of Virginia requires that they have a teacher license. A baccalaureate degree is required in order to receive a teacher license. The credentials you have described as being typical of many private preschool teachers do not qualify as a baccalaureate degree.

B. Use of Lottery Funds to Help Fund the VPI

The VPI is a partially-state-funded, local-match VDOE program under which VDOE disburses payments "from the Lottery Proceeds Fund . . . to schools and community-based organizations to provide quality preschool programs for at-risk four-year-olds unserved by [the federal] Head Start program funding." VPI funds appropriated by the General Assembly are "state funds."

Article VIII, § 10 of the Constitution of Virginia allows the expenditure of public funds for "educational purposes," including in "nonsectarian private schools and institutions of learning." It thus implicitly recognizes that nonsectarian private schools can perform an "educational purpose." This provision was found in the Constitution of 1971 as originally ratified. Approximately two decades later, the General Assembly in 1999 and 2000 proposed a constitutional amendment dealing with the Lottery and expenditure of Lottery Proceeds. The voters ratified the amendment on November 7, 2000, and it became effective July 1, 2001. It is now Article X, § 7-A of the Constitution of Virginia. In relevant part, it provides generally that "Lottery proceeds shall be appropriated from the [Lottery Proceeds] Fund to the Commonwealth's counties, cities, and towns, and the school divisions thereof, to be expended for the purposes of public education." A similar requirement is contained in § 58.1-4022(D) of the Code, which states, in relevant part,

In addition to such other funds as may be appropriated, 100 percent of the lottery revenues transferred to the Lottery Proceeds Fund shall be appropriated entirely and solely for the purpose of public education in the Commonwealth unless otherwise redirected pursuant to Article X, Section 7-A of the Constitution of Virginia. The additional appropriation of lottery revenues to local school divisions for public education purposes consistent with this provision shall be used for operating, capital outlay, or debt service expenses, as determined by the appropriation act.

The precise question thus presented is whether the General Assembly's appropriations to the VPI are for "public education," since lottery proceeds may be used only for that purpose, barring any redirection made pursuant to Article X, § 7-A of the Constitution.

In answering this question, it is first critical to note that at the time the General Assembly recommended Article X, § 7-A to the voters, it was aware of the existing language in Article VIII, § 10 recognizing that nonsectarian private schools may perform "educational purposes" that may permissibly be supported by public funds. This fact alone strongly supports a conclusion that the VPI is "public education," even when the education is occasionally provided in the setting of private preschool facilities.

Further support for this conclusion is that the VPI is overseen and administered by VDOE. VDOE is a state agency, and its entire existence pertains to public education. Finally, the 2015 Appropriation Act contains Item No. 136 for "Distribution of Lottery Funds," which provides an appropriation to the VPI, and Item No. 136(C)(14)(a)(1), which governs disbursement of "Virginia Preschool Initiative Payments" from the Lottery Fund "to schools and community-based organizations to provide quality preschool programs for at-risk four-year-olds unserved by [federal] Head Start funding." Thus, the General Assembly's Appropriation Act has determined the VPI to be a form of public education, and an act of the General Assembly is presumed to be constitutional.

For those reasons, I conclude that funding the VPI with the Lottery Proceeds Fund is legally permissible because it is a form of public education.

Conclusion

For the reasons stated, it is my opinion that teachers in private preschools must have teacher licenses in order to be paid with public funds, which include the Lottery Proceeds Fund. It is my further opinion that the Lottery Proceeds Fund legally may be used to fund the VPI in all nonsectarian preschools, subject only to such restrictions and requirements as may apply to public funding of preschools.

With kindest regards, I am

Sincerely yours,

Mark R. Herring
Attorney General