Virginia Lawyers Weekly//November 20, 2023
Virginia Lawyers Weekly//November 20, 2023//
Where parents challenged certain aspects of a diversity and inclusion program implemented by the Loudoun County School Board, but the challenged aspect has been withdrawn, and there was no evidence of any harm to the plaintiffs’ children, the school board prevailed on the claims.
The Loudoun County School Board, or LCSB, created a student equity ambassador, or SEA, program that selected “ambassador” students to participate in discussions about equity and to promote the voices of students of color. As part of the program, a form titled “Share, Speak Up, Speak Out: Bias Reporting Form” was created to identify issues and generate discussion points at SEA meetings.
Patti Hidalgo Menders, Scott Mineo and Jane Doe No. 2 assert in their amended complaint five claims on behalf of their minor children, R.M., A.M. and Jane Doe No. 5. After the court dismissed the three SEA claims for lack of standing, cross motions for summary judgment were filed on the two remaining claim relating to the LCSB’s use of the Share, Speak Up, Speak Out form.
In summary judgment briefing and at oral argument, plaintiffs claimed for the first time that their constitutional challenge, as alleged in the amended complaint, is not limited to the withdrawn Share, Speak-up, Speak-Out form and closely related procedures. As a result, they argue, the withdrawal of the Share, Speak-up, Speak-Out form does not make their constitutional challenges in Counts Four and Five moot, as the LCSB contends.
Conversely, LCSB argues that neither plaintiffs’ amended complaint nor the course of this litigation can be reasonably understood to challenge anything beyond the Share, Speak-up, Speak-Out form and related procedures, and that plaintiffs’ now-described “Bias System” is a reformulation and recharacterization of their claims in order to avoid dismissal for mootness. The court agrees. Accordingly, the court will construe Counts Four and Five as limited to challenging the Share, Speak-up, Speak-Out form and related SEA procedures.
The Share, Speak- up, Speak-Out form was withdrawn in summer 2021, and LCSB has stated, without contrary evidence, that it was withdrawn for reasons separate and apart from this litigation and that there is no intention for LCPS to use the form in the future. Based on the record before the court, there is no longer a “live” controversy about the form and related procedures, or any likelihood that LCSB will renew its use of the form.
For that reason, plaintiffs’ facial challenge is plainly moot. Plaintiffs also lack standing for their as-applied claims because plaintiffs have failed to proffer any evidence of a past concrete injury, and therefore would not be entitled to pursue nominal damages, the only relief that could otherwise preserve their challenge.
There is no evidence in the record that plaintiffs’ children would have been subjected to any disciplinary action or other sanction by LCPS if the specific speech that plaintiffs say was chilled had been reported on the Share, Speak-up, Speak-Out form. Plaintiffs argue that the mere existence of the rule or the policy is a sufficient credible threat of enforcement based on, what the plaintiffs claim, their children wanted to say. But the “policies” themselves are insufficient to establish the credible threat of a sanction necessary for plaintiffs’ as-applied challenge to succeed, because there is nothing on the face of the form, or in communications about the form, that indicates that a report made using the form could have led to student discipline.
Turning to the as-applied claim, as the amended complaint makes clear, plaintiffs’ concerns about the Share, Speak Up, Speak Out form largely relate to the threat of social consequences they believe that they will experience as a result of LCPS’s selective amplification of their speech. But the First Amendment protects speech from governmental suppression, not the perceived need by someone for self-imposed restraints on speech in order to avoid the opprobrium of their peers.
Plaintiffs’ motion for summary judgment denied. Defendant’s motion for summary judgment granted.
Menders v. Loudoun County School Board, Case No. 1:21-cv-669, Oct. 31, 2023. EDVA at Alexandria (Trenga). VLW 023-3-700. 16 pp.