Virginia Lawyers Weekly VA Lawyers Weekly
Where parents alleged their minor children were afraid to speak about political or social issues because they were afraid that fellow students would accuse them of bias through a Loudoun County school board program intended to report bias in the schools, the parents had standing to challenge the program.
Background
The Loudoun County public schools, or LCPS, developed and implemented a “Student Equity Ambassador Program” “to amplify the voices of Students of Color and those who have experienced or witnessed injustices, marginalization, or discrimination.”
In response, the parents of several children who attend the LCPS sued the Loudoun County school board on behalf of their minor children, asserting Equal Protection and First Amendment claims. They allege that their children are not eligible for the student equity ambassador program because of their race and viewpoint. And they assert the reporting system chills their children from exercising their free speech rights. The district court granted the school board’s motion to dismiss the parents’ claims under Rule 12(b)(1) and 12(b)(6).
Standing
The parents here have not alleged facts that show their children were “able and ready” to participate in the student equity ambassador program. Despite the parents’ objections to the program, they do not allege their children applied for or even wanted to be a student equity ambassador.
They certainly do not allege that any of their children were prevented from participating in the program. What’s more, the parents do not allege they sought or wanted a separate program more aligned with their alleged viewpoints. So, even accepting the parents’ allegations that the program erects a racially- or viewpoint-discriminatory barrier as true, they have not alleged an injury-in-fact.
Instead, the parents’ allegations sound much more like general disagreements with the school board’s implementation of the program. The program, they insist, is part of a concerted effort to indoctrinate LCPS children with a certain viewpoint. But whether that is or is not a legitimate concern, it is a concern about policy. And concerns about policy should be made to policymakers, not judges.
Thus, the parents fail to establish an Article III injury. As a result, this court lacks jurisdiction to reach the question of whether the parents state a claim for violation of the Fourteenth Amendment’s equal protection clause and for violation of the First Amendment’s free speech clause as to the student equity ambassador program. Accordingly, the district court’s judgment in favor of the school board is vacated and remanded for the district court to dismiss the claim without prejudice.
Bias reporting form
The parents assert two claims based on the Share, Speak Up, Speak Out: Bias Reporting Form. According to the parents, the bias reporting form constitutes a system that violates the First and Fourteenth Amendments by chilling their children’s speech through content-based restrictions and through viewpoint discrimination. The district court dismissed these claims for lack of standing. It explained that the parents failed to allege that there have been any disciplinary incidents launched as a result of the reporting form or even bias incidents recommended for investigation.
The court finds that the parents’ allegations are sufficient to show that the bias reporting system caused the parents’ children to experience a non-speculative and objectively reasonable chilling effect on their speech. The parents allege that their children desired to speak about specific issues — “political or social issues, including those touching on [Critical Race Theory], religion, race, human sexuality, and other controversial political issues.”
They allege their children’s views plausibly fell within what student equity ambassadors in presentations about the program defined as microaggressions. And the parents allege that their children refrained from speaking on these issues because they feared that, if they did, fellow LCPS students would accuse them of bias and the LCPS would investigate the reports. Finally, they allege any such report, investigation or public disclosure could harm their standing in the school community and ruin their college or career prospects. These allegations are sufficient to meet standing.
Vacated and remanded with instructions.
Menders v. Loudoun County School Board, Case No. 22-1168, April 14, 2023. 4th Cir. (Quattlebaum), from EDVA at Alexandria (Trenga). Daniel Robert Suhr for Appellants. Andrew Paul Selman for Appellee. VLW 023-2-105. 16 pp.
