Federal appellate court resurrects lawsuit challenging Virginia school district’s bias-reporting system

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A federal appellate court ruled that the bias reporting system of Loudoun County Public Schools could have a “chilling effect” on students’ speech and sent a lawsuit back to the lower court. A group of parents had initially sued the district, alleging that their children might have been afraid to express their opinions as a result of the reporting system, but the district court dismissed the suit because of a lack of evidence.   

Key Players

Loudoun County Public Schools (LCPS) operates 17 high schools, 17 middle schools, and 51 elementary schools for 84,000 students in the Loudoun County area in northern Virginia.

Patti Menders, a Loudoun County resident, has a child who attends a high school in LCPS. She presides over the Loudoun County Virginia Republican Women’s Club. 

Scott Mineo, a Loudoun County resident, has a child who attends a high school in LCPS. He is the founder of a local group called Parents Against Critical Theory. 

Further Details

In June 2020, LCPS released its Action Plans to Combat Systemic Racism, an anonymous bias reporting system where students could report racist incidents allegedly perpetrated by fellow students or teachers and speak with a student equity ambassador (SEA), The Washington Post reported. The plan was part of a program in which a small group of students with a passion for social justice would meet regularly with administrators to discuss ways to combat racist harassment. 

The plan was created after an audit by the state attorney general’s office found that LCSD had created a “hostile learning environment” for students of color, NPR reported.

According to the lawsuit, the plan’s FAQ originally stated that only students of color were eligible to be part of the equity ambassador program. 

A few months later, on Oct. 28, the FAQ was updated to state that the program was no longer open only to students of color. But when a parent emailed an administrator to clarify whether a white student could be part of the program, the administrator allegedly replied that “though all students (white or otherwise) are more than welcome to potentially serve as ambassadors, their focus is to raise the voice of their classmates of color during these meetings.”

On June 2, 2021, Menders, Mineo, and three other anonymous parents sued LCPS over the reporting system and its equity ambassador program, asserting that both violated the First and 14th Amendments, alleging that the former “chills speech” and that the latter discriminated on the basis of race and viewpoint. 

The lawsuit did not cite a specific incident in which either the system or the program resulted in disciplinary action against a student. However, it did contend that similar programs in other schools had led to students being reported for celebrating the Second Amendment or saying “Make America Great Again” in support of former President Donald Trump.  

The system was never fully implemented because of the pending suit, The Hill reported. But the ambassador program continued meeting with school administrators.

Outcome 

Federal District Court Dismisses Lawsuit

On Jan. 19, 2022, U.S. District Judge Anthony Trenga, nominated by former President George W. Bush, released an opinion dismissing the parents’ lawsuit. Trenga felt the parents failed to show that either one of the initiatives violated their children’s constitutional rights, NPR reported. 

Trenga wrote that the ambassador program’s focus on “social justice” did not constitute viewpoint discrimination. 

“Plaintiffs’ First Amendment claim essentially reduces to a relatively straight-

forward issue: whether listing ‘a passion for social justice’ as one of the SEA selection criteria imposes a particular viewpoint to participate in the program in violation of the First Amendment,” Trenga wrote. “The Court concludes that simply including ‘a passion for social justice’ as a selection factor, which is essentially all that Plaintiffs have alleged, does not sufficiently allege a violation of the First Amendment.”

He also rejected the claim that the reporting system would have a chilling effect on Free Speech, affirming that the parents had not shown any evidence that the system had led to disciplinary action against their children or that it had caused them harm. 

In response, an attorney for the parents told The Post that they would appeal Trenga’s decision.  

Appeals panel revives suit 

On April 14, 2023, the 4th U.S. Circuit Court of Appeals unanimously revived the lawsuit and sent it back to the district court. The three-judge panel comprised Paul V. Niemeyer and G. Steven Agee, both of whom were also nominated by Bush, and A. Marvin Quattlebaum Jr., nominated by Trump. 

The panel found that the bias reporting system caused the plaintiffs’ children to self-censor themselves and restrict their Free Speech rights to avoid possible consequences, The Post reported. However, they agreed with Trenga that the parents could not challenge the ambassador program.

An LCPS spokesperson told The Post that the district was reviewing all of its options before deciding how to respond.

The plaintiffs’ lawyer stated that the decision was “a major win for students and parents. Schools need to teach the importance of the First Amendment, not suppress it.”

As of May 1, 2023, there were no further developments.