Challenges to school Anti-Racism Policy were correctly dismissed

Where parents, whose children were students in the Albemarle County school system, alleged that the county school board enacted an Anti-Racism Policy that violated their state constitutional and statutory rights, “a majority of this panel concludes that the circuit court was correct to dismiss each claim in the Complaint.”

Lead opinion

Lorish: “In 2019, the Albemarle County School Board adopted the Albemarle County Public Schools (ACPS) Anti-Racism Policy and a set of implementing regulations. The stated purpose of the Policy was to ‘eliminate all forms of racism from the Division.’

“A group of parents, on behalf of themselves and their minor children then-enrolled in different grades and schools within Albemarle County, allege that the Policy, and the curriculum implemented under the Policy, violates their rights under the Virginia Constitution and a Virginia statute.

“The circuit court found that the underlying constitutional and statutory provisions were not self-executing and dismissed their claims for lack of standing.

“This case raises complicated issues and has generated three separate opinions.

“We unanimously agree with the circuit court that the statute Plaintiffs rely on, Code § 1-240.1, contains no waiver of sovereign immunity, and is, therefore, not self-executing.

“Contrary to the circuit court, we all find that the first paragraph of Article I, § 11, and all of § 12, are self-executing constitutional provisions within the Virginia Bill of Rights.

“Then, a majority of this panel concludes that Plaintiffs either failed to adequately plead cognizable constitutional injuries under those provisions, or otherwise lack standing to pursue their claims for declaratory relief.

“Judge Humphreys and I agree that Plaintiffs failed to sufficiently plead claims of compelled speech, alleged violations of equal protection and due process rights, and the asserted [statutory] right to direct the education of children.

“Judge Beales and I agree that Plaintiffs failed to sufficiently plead the claim for viewpoint discrimination.

“In sum, a majority of this panel concludes that the circuit court was correct to dismiss each claim in the Complaint.”

Affirmed.

Humphreys

Concurring in part and dissenting in part: “I join with both of my colleagues in concluding that the provisions of the Virginia Constitution upon which the Plaintiffs relied in their complaint are self-executing and that the Albemarle School Board is not immune from suit for injunctive relief based upon alleged violations of those constitutional provisions.

“With one exception, I also agree with Judge Lorish’s analysis and conclusion that the Plaintiffs failed to state a cause of action for the Students’ alleged constitutional and statutory injuries.

“However, I depart from Judge Lorish’s analysis as it relates to the circuit court’s dismissal of the Plaintiffs’ second cause of action because, in my view, the Plaintiffs adequately pled that the Anti-Racism Policy (‘ARP’) unconstitutionally restricts the Students’ free speech rights.

“Accordingly, I would hold that the Plaintiffs’ pleadings were sufficient to survive ACPS’s demurrer and plea-in-bar as it relates to the Plaintiffs’ viewpoint discrimination claim and reverse the circuit court and remand for further proceedings on that point only.”

Beales

Dissenting in part and concurring in the judgment in part: “The circuit court dismissed this case with prejudice without even having a hearing where testimony could be taken or evidence admitted.

“As soon as counsel for the Plaintiff Parents and Students had finished his argument to the circuit court at the brief hearing held on the Albemarle Public Schools’ plea in bar and demurrer, the circuit court instructed counsel for the School Board to draft an order granting the plea in bar and dismissing the Plaintiff Parents’ and Students’ case with prejudice.

“In such a hearing on deciding a plea in bar, clear commands from the Supreme Court of Virginia dictate that the circuit court must accept the plaintiffs’ factual allegations in the pleadings (and attachments to them) as true.

“The same is basically true for deciding a demurrer, where the allegations in the complaint (and attachments to it) must be accepted as true.

“Likewise, on appeal, the Supreme Court has been clear that appellate courts must review the circuit court’s rulings by considering the pleadings (and attachments to them) filed in the circuit court and by accepting the plaintiffs’ factual allegations in those pleadings as true.

“Here, the Plaintiff Parents and Students have sought a declaratory judgment and injunctive relief (among other things) by alleging claims of discrimination based on religious beliefs, claims of racial discrimination, and claims of compelled speech that, if true, would violate the Constitution of Virginia.

“Because, at this stage of the litigation, we must accept Plaintiffs’ factual claims as true, the issue before this Court is merely whether the Plaintiff Parents and Students have alleged constitutional violations that have caused or potentially will cause them harm. Clearly, they have. …

“[T]he Plaintiff Parents and Students deserve at least an ore tenus hearing on the merits of their claims.

“Yet the circuit court denied even having such a full hearing on the merits before dismissing the Parents’ and Students’ case with prejudice (and without leave to amend their pleadings).

“Because doing so was error and because the majority opinion affirms these significant errors by upholding the judgment of the circuit court, I must dissent.”

Ibanez, et al. v. Albemarle County School Board, et al., Record No. 0951-22-2, Feb. 20, 2023. CAV (published opinion) (Lorish; Humphreys, concurring in part and dissenting in part; Beales, dissenting in part and concurring in the judgment in part). From the Albemarle County Circuit Court (Worrell). Vincent M. Wagner (Christopher P. Schandevel; David A. Cortman; Tyson C. Langhofer; Ryan L. Bangert; Katherine L. Anderson; Alliance Defending Freedom, on briefs), for appellants. Jeremy D. Capps (David P. Corrigan; Melissa Y. York; M. Scott Fisher; Blaire H. O’Brien; Harman, Claytor, Corrigan & Wellman, on brief), for appellees. Amicus Curiae: Melissa Moschella, Ph.D. (Melvin E. Williams; Williams & Strickler, PLC, on brief), for appellants. Amicus Curiae: Ian Rowe (William R. Thetford Jr.; Simms Showers LLP, on brief), for appellants. Amicus Curiae: The Family Foundation (William H. Hurd; Annemarie DiNardo Cleary; Eckert Seamans Cherin & Mellott, LLC, on briefs), for appellants. VLW 024-7-056, 100 pp.