RICHMOND — Attorney General Ken Cuccinelli's office will not defend one of Gov. Bob McDonnell's key education measures in an anticipated legal challenge after his analysis concluded that it's unconstitutional.

Cuccinelli sent a letter with the news to McDonnell on Aug. 27 — the same day that the governor stood outside of a Norfolk school and gave a hearty defense of the statewide school division created to take over academically failing local schools.

McDonnell championed the measure, which struggled to pass in this year's General Assembly and now faces a challenge from the Virginia School Boards Association and Norfolk Public Schools.

"I write to certify to you that, given an analysis of the constitutional issues involved, my office cannot defend this lawsuit," Cuccinelli wrote in the letter. He said McDonnell may employ special counsel or other assistance as necessary to represent the named defendants.

A spokesman for the attorney general said Tuesday that Cuccinelli "certainly supports efforts to turn failing schools around."

"However, his legal analysis shows that, unfortunately, this law goes about it in a way that is unconstitutional," said Brian J. Gottstein. "The Virginia Constitution states — and the courts have affirmed — that the supervision of public schools must remain with their local school districts."

While the Opportunity Educational Institution legislation became law in July, the full board of lawmakers and gubernatorial appointees has not been named and an executive director has not been hired.

Despite the latest twist, McDonnell's office on Tuesday indicated it would keep up the fight.

According to the Supreme Court of Virginia, "it is well established that all actions of the General Assembly are presumed to be constitutional," said Tucker Martin, a McDonnell spokesman.

"Nevertheless, Virginia law provides for circumstances in which the attorney general determines he is unable or incapable of rendering legal services, including defending legislation passed by the General Assembly, and in such a situation the law provides for the appointment of special counsel," he said in an e-mail.

Martin said the office looks forward to working with special counsel to "vigorously defend" the law, and that the administration is working with the attorney general's office "to determine the details of how we will move forward."

Lawmakers sought to amend the Virginia Constitution to allow for the statewide school division when it was proposed — apart from the legislation that passed creating the OEI — but the effort was rejected.

Norfolk and the VSBA contend that the OEI construct is unconstitutional and that the legislation violates parts of the Virginia Constitution providing that "the supervision of schools in each school division shall be vested in a school board" and that the State Board of Education shall create school divisions.

McDonnell has pointed to a different part of the constitution — that the General Assembly shall "seek to ensure that an educational program of high quality is established and continually maintained."

The OEI can seize local schools that fail to meet basic academic benchmarks for at least three years in a row. It would take over schools that are denied accreditation, which means not meeting the standards for four consecutive years.

At least four schools could qualify if they do not make academic gains — two in Norfolk, one in Alexandria and Petersburg's middle school. New school accreditation ratings are expected this month from the Virginia Department of Education, which will better define schools to be seized.

The OEI board can operate a school in whatever manner it chooses, including turning it into a charter school. It could return the schools to local control once they reach full accreditation, but it is not required.

The VSBA and Norfolk schools have yet to file suit. Pat Lacy, of the VSBA, said Tuesday that he wasn't surprised by the decision of the attorney general's office.

"I hope the administration will take this as an opportunity to reflect upon moving forward at this time with the Opportunity Educational Institution," he said.

He added that he hopes the administration will let the Joint Legislative Audit and Review Commission complete its study of underperforming schools before going further in implementing the legislation.

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