MOU Madness – I

Even under the Board of Education’s flexible, score-boosting “standards,” a public school or division can be denied accreditation.  The Board requires the unfortunates who are so denied to execute a Memorandum of Understanding (MOU).

The Board’s MOU is a terrible idea, both as to strategy and as to tactics.

Strategy

First, the statutory background: The third Standard of Quality provides for accreditation and requires that schools and divisions be accredited:  “Each local school board shall maintain schools that are fully accredited pursuant to the standards for accreditation as prescribed by the Board of Education.”  The Board can sue to compel compliance with the Standards of Quality.

As a mandatory statement of “understanding,” without any hint of the agreement, consideration, or damages remedy of a contract, the MOU is even less than a contract.

Yet, even contracts to require compliance with the law are a terrible idea.  Contracts are subject to different rules than enforcement suits and orders.  And contracts have some slippery side effects, such as third party beneficiaries

No competent enforcement agency executes a contract with a violator: The agency uses contracts to buy paper and toner; it abates violations by exercising its authority to issue orders or to bring suit.  Use of a contract as an enforcement tool usually signals a reluctance to actually enforce. 

MOUs have their uses; they are particularly useful for dividing turf between agencies.  For example, the State Water Control Board has plenary authority over groundwater while the State Board of Health has authority over septic tanks et al. that inject partially treated sewage into groundwater.  In that kind of situation, MOUs are useful to help the employees of each agency know how to deal with borderline situations.

But here we have the Board of Education requiring an unenforceable MOU of each school and division that suffers a denial of accreditation.

Aside: We might also notice that the regulation requires an MOU but leaves the contents to the Board’s discretion.  Thus, if the resulting MOU actually required anything, it probably would be unlawful.

Tactics

The Board’s boilerplate MOU is ridiculous on its face. 

The foolishness begins in the very first section of the MOU (copy kindly provided by VDOE’s Chuck Pyle):

I. Requirements

BLANK Public Schools will comply with all requirements included in the Regulations Establishing Standards for Accrediting Public Schools in Virginia (SOA).

A copy of the SOA requirements for schools rated Accreditation Denied is located at the following link:  http://www.doe.virginia.gov/boe/accreditation/index.shtml .

Both the Virginia Department of Education (VDOE) and BLANK Public Schools should ensure that program activities are conducted in compliance with all applicable federal laws, rules, and regulations.

The first requirement of the MOU is that the school or division promise to comply with the law!!!

It’s difficult to discuss this kind of nonsense without resorting to obscenities.  Here we have a school or division that the Board says is violating the law and the Board’s first remedy is that the violator make an unenforceable promise to comply with the law.

But wait!  It gets worse:

The MOU then says that VDOE and the school/division “should ensure that program activities” are lawful. 

Here, in a public record, the Board of Education says that VDOE and the school/division that is the subject of an enforcement action “should” act in compliance with the law.  

Never mind the meaningless redundancy of the earlier empty promise to comply with the law.  This “should” mandate is too week to even be redundant.  It is hollow, preposterous babble.

There is a simple explanation for all this frivolity:  The Board does not prescribe an actual remedy because it doesn’t know (or is unwilling to say) what the judge should require the unaccredited school to do.  That is, the Board knows it would be futile to sue.

Your $22.3 million tax dollars per year at “work.”

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Preview of coming attraction: The second sentence of Part I of the MOU leads, after some thrashing about, to a regulation.  In typical educrat fashion, that regulation says much about inputs (MOUs and plans and reports and management reviews and turnaround specialists) but says nothing about obtaining an output, such as accreditation.  And, for sure, the regulation is silent about accountability for any (the inevitable?) failure.

Stay tuned . . .