In Virginia, can a local school board pick a math textbook that the State Board of Education hasn't fully approved for a given grade, and what process does the local board have to follow when doing so?

Plain-English summary

Virginia's public education governance has three tiers: the General Assembly sets state policy and funding, the State Board of Education exercises statewide supervision (including approving textbooks under § 22.1-238(A)), and local school boards run the actual schools (Article VIII, § 7 of the Constitution). The local boards' authority is real but is "subject to direction and limitation" from the State Board and the legislature.

Section 22.1-238(B) provides a flex point: "Any school board may use textbooks not approved by the Board provided the school board selects such books in accordance with regulations promulgated by the Board." The State Board's regulations (8 VAC §§ 20-230-10 to 20-230-40) set the procedural and substantive requirements. The local board must appoint an evaluation committee that considers state-approved books first; the committee must use evaluation criteria with the "official approval" of the local school board (8 VAC § 20-230-30(5)).

Delegate Marshall asked whether the Prince William County School Board complied with these regulations when it adopted the "Investigations in Number, Data, and Space" textbook series for fifth grade. The State Board had approved that series for kindergarten through fourth grade only, so the fifth-grade adoption fell into § 22.1-238(B) territory. A parent had complained that the local board never officially approved the evaluation criteria.

Acting Attorney General William Mims's answer was nuanced. As a matter of law, the local board has authority to select non-state-approved textbooks if it follows the regulations, and the regulations do require official approval of the criteria. As a matter of fact, whether Prince William's process actually included that official approval is for the State Board to determine in the first instance, not the AG, and AG opinions historically do not resolve factual disputes.

Currency note

This opinion was issued in 2009. 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.

Background and statutory framework

Article VIII of the Virginia Constitution distributes responsibility for public education among three tiers. Section 7 of Article VIII vests "[t]he supervision of schools in each school division" in a local school board. But local boards operate under direction from the State Board of Education (Article VIII, §§ 2, 4, 5) and the General Assembly. The federal court in Dennis v. County Sch. Bd. described the structure as "apportion[ing] various responsibilities for the creation and maintenance of Virginia's system of public education."

Section 22.1-238 sets the textbook-approval rules:

A. The Board of Education shall have the authority to approve textbooks suitable for use in the public schools and shall have authority to approve instructional aids and materials for use in the public schools. The Board shall publish a list of all approved textbooks on its website and shall list the publisher and the current lowest wholesale price of such textbooks.
B. Any school board may use textbooks not approved by the Board provided the school board selects such books in accordance with regulations promulgated by the Board.

The State Board's regulations at 8 VAC §§ 20-230-10 to 20-230-40 supply the procedural and substantive requirements. Among them:

• The local board must appoint an evaluation committee (8 VAC § 20-230-30(1)).
• The committee must first consider state-approved textbooks (8 VAC § 20-230-30(3)).
• "Criteria to be used by the evaluation committee in the review and assessment of textbooks must have the official approval of the local school board" (8 VAC § 20-230-30(5)).

Prince William County School Board's own instruction/regulation 653-2 directed the curriculum supervisor in each content area to "[d]evelop evaluative criteria to be used by committees in textbook examination and selection," with criteria including alignment with the Virginia Standards of Learning and the local curriculum, factual accuracy, logical sequencing, grade-level appropriateness, and freedom from bias.

The factual dispute concerns whether the School Board ever gave "official approval" to the criteria the evaluation committee used in 2006 when it adopted "Investigations" through fifth grade. The State Board had approved "Investigations" only through fourth grade.

What the AG concluded

Local school boards may adopt non-state-approved textbooks if they follow the State Board's regulations. Section 22.1-238(B) expressly allows this. The local board does not need separate state-board approval, only compliance with the State Board's regulations.

The "official approval" of evaluation criteria is a regulatory requirement. 8 VAC § 20-230-30(5) is clear: the criteria the evaluation committee uses must have official local board approval. Where the local board does not officially approve criteria, the process is out of compliance with the State Board's regulations.

Whether Prince William's process complied is a factual question the AG cannot resolve. AG opinions are about questions of law, not contested facts. The information received by the AG's office was unclear about what actually happened at the School Board level.

The State Board is the appropriate body to enforce its own regulations. If a parent or other party believes the local board failed to comply with the State Board's textbook adoption regulations, the appropriate path is to raise the issue with the State Board, which can interpret and enforce its own regulations with reasonable deference from reviewing courts.

Common questions

Why does Virginia let local school boards bypass the State Board's textbook approvals?
Because Virginia's constitutional structure gives local school boards "the supervision of schools" in their division (Article VIII, § 7). The State Board's approval list is a curated default, but local boards have the authority to differ when they follow the regulatory process.

What's the practical effect for a parent unhappy with a textbook?
The parent's path is twofold. First, work the local political process (school board meetings, comments, candidate races). Second, raise procedural compliance concerns with the State Board of Education if the local board did not follow the State Board's adoption regulations. The local board has authority to choose; the State Board has authority to police the process.

Did the AG say the Prince William adoption was wrong?
No. The AG specifically declined to opine on whether the adoption complied. The opinion stays at the legal-framework level and refers the factual question to the State Board.

What is "Investigations in Number, Data, and Space"?
A K-5 math curriculum from TERC (the Technical Education Research Centers), often called "TERC math." It is part of the broader "reform math" movement that emphasizes conceptual understanding and student exploration over rote computation. The curriculum has been controversial; some parents and traditional-math advocates have argued it leaves students without sufficient computational fluency.

Could parents sue to block the adoption?
Litigation by parents over textbook selection is generally disfavored because courts defer to administrative agencies (here, the State Board) for interpretation of education regulations, and the federal court in Dennis and others have generally found that local school boards have broad discretion in curricular matters absent constitutional violations.

Why is Article VIII's tier structure significant?
Because it means each local school board's authority is real but not absolute. A board can choose textbooks, but it must do so within the regulatory framework set by the State Board. The structure is similar to other federal-state-local layered authorities, where the lower tier has discretion within the limits set above.

Citations

• Va. Const. Art. VIII (especially § 7)
• Va. Code Ann. § 22.1-238 (textbook approval)
• 8 VAC §§ 20-230-10 to 20-230-40 (State Board textbook adoption regulations)
• 8 VAC § 20-230-30(5) (official approval of evaluation criteria)
• Dennis v. County Sch. Bd., 582 F. Supp. 536 (W.D. Va. 1984)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-022-Marshall.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

July 27, 2009

The Honorable Robert G. Marshall
Member, House of Delegates
P.O. Box 421
Manassas, Virginia 20108-0421

Dear Delegate Marshall:

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 ask whether the Prince William County School Board complied with the regulations of the State Board of Education concerning the adoption of textbooks, which require textbook evaluation criteria to have the "official approval" of the local board.

Response

It is my opinion that a local school board may select and use textbooks that are not approved by the Board of Education, provided it complies with the Board's regulations governing such selection. It further is my opinion that a local school board must give "official approval" of criteria to be used for review and assessment of textbooks at the local level. Finally, it is my opinion that whether the evaluation committee in this instance had "official approval" is a factual determination, and I must decline to respond.[1]

Background

You relate that in 2006, the Prince William County School Board ("School Board") adopted the textbook series "Investigations in Number, Data, and Space" for use as the primary math text in kindergarten through the fifth grade. Further, you note that the State Board of Education ("State Board")[2] has approved the "Investigations" texts for use in kindergarten through the fourth grade.

The School Board has established an instruction/regulation governing the selection process for the adoption of state and local textbooks:

[II.] D. Develop evaluative criteria to be used by committees in textbook examination and selection. Textbook evaluation shall include but not be limited to: alignment with the Virginia Standards of Learning and the Prince William County Public Schools' curriculum; factual accuracy; a logical sequence of instruction; age/grade/reading level appropriateness; and freedom from ethnic, racial, sex, religious, age, and political bias.[3]

You state that the School Board adopted the "Investigations" text for use in the fifth grade. You note that at least one parent has expressed concern about this decision and has asserted that the criteria did not have the "official approval" of the School Board. The parent contends that the School Board has failed to comply with the regulations of the State Board.

Applicable Law and Discussion

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."[4] Article VIII of the Virginia Constitution vests the broader, statewide responsibilities in the General Assembly,[5] in the State Board,[6] and in the Superintendent of Public Instruction.[7] Article VIII, § 7, provides that "[t]he supervision of schools in each school division shall be vested in a school board."[8] 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 triune scheme, the General Assembly enacted § 22.1-238, which provides, in relevant part, that:

A. The Board of Education shall have the authority to approve textbooks suitable for use in the public schools and shall have authority to approve instructional aids and materials for use in the public schools. The Board shall publish a list of all approved textbooks on its website and shall list the publisher and the current lowest wholesale price of such textbooks.

B. Any school board may use textbooks not approved by the Board provided the school board selects such books in accordance with regulations promulgated by the Board.

Pursuant to § 22.1-238, the State Board[9] has promulgated regulations (the "Regulations") governing the adoption of textbooks by local school boards, including textbooks that have not been approved by the State Board.[10] The Regulations set forth the substantive and procedural requirements for such adoption.[11] These procedural requirements include the local board's appointment of an evaluation committee, which shall first consider the state-approved textbooks.[12] The Regulations also address the standards by which the local evaluation committee will measure textbooks: "Criteria to be used by the evaluation committee in the review and assessment of textbooks must have the official approval of the local school board."[13]

As previously noted, the State Board has approved the "Investigations" texts for use in kindergarten through the fourth grade. No further action by a local board is required for the use of textbooks that have been approved by the State Board.[14] State law permits local school boards to approve the use of textbooks that have not been approved by the State Board, provided the local boards comply with regulations adopted by the State Board.[15] The School Board directs the curriculum supervisor in the content area to develop evaluative criteria to be used by the committees charged with the evaluation of textbooks.[16]

This Office has received information from you as well as unsolicited information from other sources related to the textbook approval by the School Board. Based on the information that was received, it is unclear what actually occurred at the School Board level.

Whether the criteria used by the evaluation committee had the "official approval" of the local board is dependent upon the facts. This Office historically has declined to render opinions that involve determinations of fact rather than questions of law.[17] It also is important to recognize that any inquiry into whether a local school board has complied with the Regulations of the State Board appropriately is the province of the State Board. An administrative agency's interpretation of its own enabling authority, while not absolute, is entitled to reasonable deference.[18]

Conclusion

Accordingly, it is my opinion that a local school board may select and use textbooks that are not approved by the Board of Education, provided it complies with the Board's regulations governing such selection. It further is my opinion that a local school board must give "official approval" of criteria to be used for review and assessment of textbooks at the local level. Finally, it is my opinion that whether the evaluation committee in this instance had "official approval" is a factual determination, and I must decline to respond.[19]

Thank you for letting me be of service to you.

Sincerely,

William C. Mims
6:060; 1:941/09-022

1. Although I decline to respond to the specific question, I have offered general guidance concerning the Commonwealth's statutes and regulations governing the adoption of textbooks.
2. See VA. CODE ANN. § 22.1-8 (2006) (vesting general supervision of schools in Board).
3. See Prince William County Public Schools, Regulation 653-2, INSTRUCTION, pt. II(D), at *2 (Sept. 22, 2004), available at http://www.pwcs.edu/admin/pwcs/admin_pdfs/R653-2.pdf [hereinafter "Instruction"].
4. Dennis v. County Sch. Bd., 582 F. Supp. 536, 543 (W.D. Va. 1984).
5. VA. CONST. art. VII, §§ 1-3.
6. Id., §§ 2, 4, 5.
7. Id., § 6.
8. See also § 22.1-28 (2006) (parallel statute).
9. See also § 22.1-16 (2006) (granting authority to State Board to promulgate regulations necessary to carry out its powers and duties).
10. 8 VA. ADMIN. CODE §§ 20-230-10 to 20-230-40 (2002).
11. Id. §§ 20-230-30, 20-230-40.
12. Id. § 20-230-30(1), (3).
13. Id. § 20-230-30(5).
14. See § 22.1-238(A) (Supp. 2009); 8 VA. ADMIN. CODE § 20-230-20.
15. See § 22.1-238(B).
16. See supra note 3 and accompanying text.
17. See 1991 Op. Va. Att'y Gen. 122, 124.
18. See 1991 Op. Va. Att'y Gen. 157, 158.
19. See supra note 1.