by Emilio Jaksetic
On July 27, 2021, Judge J. Frederick Watson, with the 24th Judicial Circuit of Virginia, issued a decision on a lawsuit challenging the adoption of the Virginia Board of Education’s Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools, reports The Virginia Star. Because Judge Watson dismissed the lawsuit for lack of standing, he properly did not rule on the substantive merits of lawsuit.
A copy of Judge Watson’s decision is available here. A copy of the Virginia Board of Education Model Policies is available here.
Despite dismissal of the lawsuit on procedural grounds, both sides claimed victory.
The Christian Action Network claimed victory on the grounds that Judge Watson’s decision included a ruling that the Model Policies is a guidance document and that school boards have the option to decide whether or not to follow it. Furthermore, the Christian Action network claimed “the judge is granting school boards the right to decline to act on Virginia’s ‘Model Policies,’ which is exactly what our lawsuit intended.”
The ACLU of Virginia claimed victory on the grounds that dismissal of the lawsuit was warranted, and asserted “[a]ll school boards in the state are legally required by law to pass policies aligning with the model policies for the 2021-22 school year.”
Because of the limited procedural nature of Judge Watson’s decision, both claims of victory on the merits are technically premature. However, the Virginia ACLU’s claim of victory is more sound than the Christian Action Network’s claim of victory.
Because Judge Watson dismissed the lawsuit on procedural grounds, his statements about (1) the Model Policies being a guidance document, and (2) what decision a school board might make about adopting the Model Rule are mere dicta, not legal rulings. Judge Watson’s procedural decision on standing does not substantively address what Christian Action Network claims to be the right of a school board to decline to adopt the Model Policies. At most, Judge Watson’s decision — if followed by other Virginia courts — merely gives Virginia school boards standing to contest the Virginia Board of Education’s authority to require adoption of the Model Policies. It says nothing about the ultimate outcome of any legal contest that would arise if a school board declines to adopt the Model Policies and is sued by the Virginia Board of Education. Christian Action Network’s claim of victory is wishful thinking.
Given the language of Virginia Code Section 22.1-23.3(B), the ACLU of Virginia has better grounds for feeling confident of victory if the Virginia Board of Education sues any school board that declines to adopt or follow the Model Policies.
Moreover, even if Virginia courts were to rule that a school board has the authority to decline to adopt or follow the Model Policies, then any school board that does so probably will find itself the target of a claim of unlawful discrimination under Virginia’s Human Rights Act, Virginia Code, Title 2.2, Chapter 39. And the school board would then face the possibility of a determination of unlawful discrimination by the Virginia Attorney General, Office of Civil Rights, such as happened to Loudoun County Public Schools in 2020. See, for example, this article and this press release by Attorney General Mark Herring.
If Christian Action Network seeks to help Virginia parents vindicate “the fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child” under Virginia Code Section 1-240.1, it had better prepare for a long, difficult battle against “woke” educators and their formidable array of allies.
Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.
