Legal Insider: Virginia’s new teacher tip line — Bad for Virginia, worse for teachers

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Governor Glenn Youngkin announced last week that his administration has opened an official email tip line for Virginians to submit “reports and observations” of “inherently divisive practices” in Virginia schools. On a radio show last Monday, he touted the new tip line and encouraged parents to send his administration “any instances where they feel their fundamental rights are being violated [or] where their children are not being respected.”

While it remains unclear exactly what might constitute such a “divisive practice” in the eyes of the new Governor, he has emphasized his broader goal to rid the school system of such teachings, including Critical Race Theory — despite CRT not actually being taught in K-12 schools in Virginia. This move comes after the Governor expressly banned CRT in Virginia public schools via his first executive order.

But all those political controversies aside, this new tip line presents a new and unnecessary worry for the dedicated teachers of our Commonwealth. For society generally, I think this tip line is a terrible idea. As an employment lawyer, however, I think it is even worse.

Educators across the Commonwealth may be obviously and justifiably upset at the idea of having someone report them. This worry is only magnified by the lack of clarity regarding this new tip line. For instance, there is no clear guidance about what counts as “divisive” — so teachers now have to worry about anything they teach, or even just the way they teach it, possibly being perceived as “divisive” by a disgruntled parent, student, community member, or random third party.

Although it is not clear what sort of investigative and/or enforcement actions the Governor envisions against teachers, the move comes just as our teachers face among the lowest salaries for their profession in the United States and just as the Commonwealth continues to face serious teacher shortages that have only been exacerbated by the ongoing COVID-19 pandemic. Being investigated by the government over such ambiguously defined concerns is the last thing our hardworking teachers need right now.

Many other questions about this tip line remain unanswered at this point, in addition to the vagueness of the “divisive practice” label. The Governor has not expressly stated that his goal is to investigate teachers, and his press secretary tweeted last Wednesday that the tip line is intended as a “resource for parents, teachers, and students to relay questions [and] concerns,” calling it a “customary constituent service to hear from Virginians.”

Asking people to report teachers over anything perceived as offensive or divisive is sure to result in overinclusion relative to anything that is truly a problem, and the breadth of this potential coverage is what is so problematic for the teachers faced with the Governor’s efforts. We have school boards and administrations for a reason — there is simply no need to create a culture of reporting schools and teachers to the state government rather than by solving problems within the school district.

From an employment law perspective, the tip line is even more problematic because of the lack of clarity regarding any employment actions that may or may not be taken as a result of tips submitted to the tip line. Virginia law also contains rules about the procedure for discipline and dismissal of teachers, so it is not as if the Governor can simply step in and remove a teacher deemed to be teaching something he deems inappropriately “divisive.” School boards would not have to follow a tip line-based recommendation that a specific teacher be disciplined.

But does the Governor plan on pursuing some of these tips to the point of encouraging school boards to investigate and/or remove specific teachers? That remains to be seen — and it may depend in part on to what extent the follow-up actions remain confined to the formal curriculum space rather than the individual teachers themselves.

Perhaps unsurprisingly, the Governor’s announcement was soon followed by masses of Internet denizens of TikTok, Twitter and other social media platforms flooding the email with fake, joke “tips” in order to render it difficult to sift through to find serious submissions. As a result, it seems fairly unlikely that the tip line as it currently exists will remain in place — or at least, it seems nearly certain that the Governor will need to screen submissions somehow unless his staff is willing to sort through thousands of fake submissions for every serious one. As long as this tip line remains in place, Virginia teachers face an unnecessary extra employment burden at a time when their jobs are already so difficult.

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