Fourth Circuit Gives Standing to Parents Suing Loudoun County Schools over First Amendment Violations

Ian Serotkin
LCPS School Board Chair, Defendant

by James C. Sherlock

In a win for freedom of speech, the United States Court of Appeals for the Fourth Circuit in Richmond overturned a finding by a federal district judge that Loudoun parents did not have standing to sue the School Board for infringement of First Amendment rights.

The parents alleged a bias reporting system instituted by Loudoun County Public Schools “chilled their children from exercising their free speech rights.”

The ruling:

… the parents plausibly allege that implementing the new reporting system chilled their children’s speech to support their First Amendment claims. So, we vacate the district court’s order dismissing those claims and remand for those claims to be considered on the merits.

I suspect the new trial and appeals will find even the current, revised LCPS policy on reporting to be intended to chill protected speech.

Current LCPS Policy: What students should do. From the Student Rights and Responsibilities Handbook:

If a student is confronted or aware of hate speech and/or racial slurs, they should immediately report the information directly to a teacher, administrator, counselor or other trusted adult at school.

Current LCPS Policy: What staff must do. LCPS policy on Discrimination and Harassment Based on Racism and Hate Speech presumes guilt:

When overheard or reported, staff members are to immediately address racial slurs, hate speech, or a related incident in accordance with the Code of Conduct Student Discipline Guidelines or LCPS policy.

So, the accused is immediately subject to the student discipline system upon report of a racial slur or hate speech. Yet, hate speech is never defined.  

How are offenses defined by LCPS policy? As for the offenses themselves in LCPS:

F. Offenses. Students may be disciplined for any behavior incompatible with the PK-12 learning environment and good citizenship including, but not limited to:

12. Hateful language and actions based on race, color, national origin, caste, socioeconomic level, religion, sex, pregnancy, childbirth or related medical conditions, sexual orientation, perceived sexual orientation, gender identity, gender expression, marital status, disability, age, genetic information, and/or ability or language that encourages discrimination, hatred, oppression, and violence; [Emphasis added.]

Like “hate speech,” “hateful language” and “hateful actions” are not defined anywhere in LCPS policy, and thus, one presumes, are in the eye of the beholder.

That may prove a problem in court.

Virginia law defines hate crime. I could find nowhere in LCPS policies the requirement for a finding of hate speech the “intent of instilling fear or intimidation in the individual against whom the act is perpetrated.” So, they are not looking for hate crimes.

Virginia’s progressive hate crimes law used to specify race and religion as the motivations.

Even as expanded by Democrats in 2020 to include from the progressive canon a wider range of offense motivations (and offended persons), it calls out only:

race, religion, gender, disability, gender identity, sexual orientation, or ethnic or national origin

Bottom line. The LCPS Board, striving successfully not to ever be accused of being insufficiently progressive, has written policy that calls out as motivations for hate speech:

race, color, national origin, caste, socioeconomic level, religion, sex, pregnancy, childbirth or related medical conditions, sexual orientation, perceived sexual orientation, gender identity, gender expression, marital status, disability, age, genetic information, and/or ability or language

The good news. They left out shoe style. Batting average.

But LCPS policy never defines the term “hate speech.”

The safe bet for students is to stick with “How about those Nationals”? Unless one of the players is pregnant.

We now will see if the defendants want their day in court on this issue.

I hope they do.

 


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45 responses to “Fourth Circuit Gives Standing to Parents Suing Loudoun County Schools over First Amendment Violations”

  1. …race, color, national origin, caste, socioeconomic level, religion, sex, pregnancy, childbirth or related medical conditions, sexual orientation, perceived sexual orientation, gender identity, gender expression, marital status, disability, age, genetic information, and/or ability or language…

    What about species identity and species expression?

    My child should not be picked on, denigrated, or discriminated against simply because he identifies as an American Badger (Taxidea taxus) and expresses his identity by behaving like an American Badger.

  2. Eric the half a troll Avatar
    Eric the half a troll

    I knew it would not be long before the Right sued to enforce their right to use the “N” word consequence-free…

    1. It’ll just be the same “common sense” advocates suddenly pretending to be as thick as possible.

      But what does “hateful” truly mean? What is, like, race maaaaaan?

      1. James C. Sherlock Avatar
        James C. Sherlock

        I’m absolutely sure you know it when you hear it, Rosie. Anything you disagree with, right?

        Embarrassing.

        1. Charles D'Aulnais Avatar
          Charles D’Aulnais

          Yes, but do continue.

          I would never trust my instincts on hate and/or hate speech. I used to think a bunch of Yoopers running in the woods playing soldier were relatively harmless.

    2. VaNavVet Avatar

      You can always count on them to stand up for “hate” speech.

      1. James C. Sherlock Avatar
        James C. Sherlock

        ‘Them?’ Is someone left off the list? Who might “them” be?

        1. Charles D'Aulnais Avatar
          Charles D’Aulnais

          Is this the point in a conversation where one rightfully introduces built-in coin pouches and small furry rodents?

        2. VaNavVet Avatar

          It would appear to be some of the posters herein along with those on the alt-right. Some of “them” just got charged six years after they marched in Charlottesville!

    3. James C. Sherlock Avatar
      James C. Sherlock

      Yes, that’s certainly it. It took you to figure it out.

      1. Eric the half a troll Avatar
        Eric the half a troll

        The concept has certainly been driven home here at BR…

  3. Eric the half a troll Avatar
    Eric the half a troll

    I knew it would not be long before the Right sued to enforce their right to use the “N” word consequence-free…

  4. …race, color, national origin, caste, socioeconomic level, religion, sex, pregnancy, childbirth or related medical conditions, sexual orientation, perceived sexual orientation, gender identity, gender expression, marital status, disability, age, genetic information, and/or ability or language…

    What about species identity and species expression?

    My child should not be picked on, denigrated, or discriminated against simply because he identifies as an American Badger (Taxidea taxus) and expresses his identity by behaving like an American Badger.

    Also, The safe bet for students is to stick with “How about those Nationals”?

    And what about students who are Yankees fans and who are ‘triggered’ by the mere mention of any other team? I think a more safe bet would be: “How about those Insert Name of Your Favorite Team Here”s?

    1. Charles D'Aulnais Avatar
      Charles D’Aulnais

      Unless it’s by a kid who identifies as a wolverine, Michigan or otherwise.

      1. Well, yes. I suppose that must be permitted. They are natural rivals, after all.

    2. Lefty665 Avatar

      You’d think they would have included “badgering” as being offensive. It’s a pretty glaring oversight, if not itself an egregious expression of speciesism unless that falls under the heading of “genetic information”.

      “…genetic information, and/or ability...”

      Uh oh, and speaking of genetic information, linking genetic information and ability, that’s dangerous territory. It does not seem very Loudoun like. Shockley and Watson are dancing.

      1. James C. Sherlock Avatar
        James C. Sherlock

        You are both right to laugh at those public morons. I wish they were harmless, but they are not. I pray they will choose to go to trial.

        1. VaNavVet Avatar

          Hate speech is like pornography in that most people know it when they hear it! Some folks do appear to be in favor of it.

          1. Lefty665 Avatar

            “Hate speech”, Another made up term. Making things up is about all woke snowflakes (they/them) are good for.

            “Oh, oh, someone said something unflattering or used the wrong pronoun, get me to a safe space, I’ve got the vapors, I’m about to faint and need counseling. It’s in my genetic information.”

            It’s better just to laugh at they/them foolishness, while applying the tar and feathers and riding them out of town on a rail.

            Fortunately the Bill of Rights, the 1st Amendment and free speech is not such a fragile flower that it will be constrained by the likes of Loudoun County snowflakes.

          2. VaNavVet Avatar

            Woke snowflakes on the right or the left? Perhaps both! Threatening violence is never the answer.

          3. Lefty665 Avatar

            The left, that is obvious. The right has its own issues, but they do not include being fragile snowflakes.

          4. Nancy Naive Avatar
            Nancy Naive

            In favor of which? If it is necessary to have one to have the other, well, that’s what noise-canceling headphones are for.

          5. Lefty665 Avatar

            Lets see, a boy in a skirt having anal sex with a girl in a high school bathroom, then he is secretly moved to another school to assault another girl. It is all set against a backdrop of a speech repressing “bias reporting system” that nobody has standing to complain about. Sounds like pornography to me.

            See domination and bondage, a parent wrestled to the ground by Sheriff’s deputies and arrested at a Loudoun County School Board meeting for complaining when the Chairman denied there had been a sexual assault.

            But wait, there’s more for the voyeurs! There is a special appearance by US Attorney General Merrick “aka ‘Dick’ Tracy” Garland using that event to task the DoJ, FBI and Department of Homeland Security to investigate parents at School Board meetings nationwide as Domestic Terrorists at the request of the National School Boards Association, from whom the request was solicited by the US Department of Education and funneled through the White House.

            Loudoun Does It! and the sequel Loudoun Does It Again! Taxpayer funded and brought to you by the Loudoun County School Board and USG. But what kind of sick minds would make up something so bizarre?

        2. Lefty665 Avatar

          “public morons” Those sir are a protected class whose lack of ability may well cause not only a self chosen identification, but be a product of their “genetic information” that makes them a target of your “hate speech”. Have you at long last no sense of dumbification and ignorance equity (DIE)?

          If you don’t shape up and do diverse, inclusive and equitable community service you may “trigger” mandatory attendance in the “safe space” of a reeducation camp with others of your ilk.

          The movie “Idiocracy” is an insightful look at what the Loudounification of our future may portend. “public morons” indeed.

          https://www.amazon.com/Idiocracy/dp/B000K7VHOG/ref=sr_1_2?crid=9W8QT7093VF7&keywords=idiocracy+movie&qid=1682110218&sprefix=idiocracy%2Caps%2C245&sr=8-2

  5. Nancy Naive Avatar
    Nancy Naive

    “Speak, and remove all doubt.”

  6. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    So a kid calling other kids racially derogatory names should not be disciplined?

    1. Eric the half a troll Avatar
      Eric the half a troll

      Exactly… it is a right some parents demand for their children… consequence-free speech…

    2. Nancy Naive Avatar
      Nancy Naive

      I believe the expression is “Asked and answered.”

    3. racially derogatory – terms like ‘white, cisgendered male, Trump supporter’?

    4. Not based solely on an accusation of using racially derogatory names.

  7. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Where is the line between bullying, which is prohibited, and a student’s First Amendment rights?

    1. Nancy Naive Avatar
      Nancy Naive

      Apparently, it’s based entirely on whether, after making a potentially tasteless and hateful remark, the speaker can with a straight face say, “It’s a joke. Sheesh!”

    2. Nancy Naive Avatar
      Nancy Naive

      Apparently, it’s based entirely on whether, after making a potentially tasteless and hateful remark, the speaker can with a straight face say, “It’s a joke. Sheesh!”

      1. Lefty665 Avatar

        But the right to be tasteless, both potentially and otherwise, is still protected even when reported under Loudoun’s bias reporting system? It is good to know the 1st Amendment is still ok with tastelessness.

        But please help me, I’m confused, can one person’s tastelessness be another person’s hatefulness, or are they mutually exclusive? Is there any accounting for taste? How about puns? Some churls consider them both tasteless and hateful while some of us consider them both tasty and delightful.

        Why in the “summer of love” did everyone hate Asbury? Was it something he/she/it said? But that’s a special case of a pun, it’s a homophone. That is a whole different, and dangerous, kettle of pfishing with that hateful homo prefix. Why should gay people be required to have different phones? Is the pronoun I not inclusive enough for phones, or is that a hate speech Appleation? What do all of the rest of the BLT+ etc do for phones? Where is there equity? Why are gay people the only ones who get their own phones? Some of the rest of us are happy too. Once upon a time all phones were black, now they come in all colors. Thank goodness systemic racism in phones is dead. Did you ever hear about Alexander Graham Kowalsky, he was the first telephone pole, and he got a 37% approval rating.

        1. Nancy Naive Avatar
          Nancy Naive

          Well, use my approach. Talk to a person for 20 minutes. Buy ‘em a beer. By the end of the conversation, you should be able to find enough to hate about them that is unique to them and you don’t have to resort to hate speech.

          1. Lefty665 Avatar

            Zat what’s known as the Lite (Bud) coming on?

    3. Lefty665 Avatar

      “Where is the line between bullying… and First Amendment rights?”

      It is the parents belief that Loudoun schools have overstepped that line. That is the question that parents are asking the courts to decide. It is also the question that Loudoun Schools has wrongly asserted that parents do not have standing to ask. I don’t think it is an easy question.

  8. Would this count as hate speech in schools?

    https://gregprice.substack.com/p/apush-textbooks-are-covering-the

    1. Lefty665 Avatar

      Dunno, does “hate speech” require proving hateful intent, or does just purveying falsehoods qualify as “hate speech”?

    2. Lefty665 Avatar

      Dunno, does “hate speech” require proving hateful intent, or does just purveying falsehoods qualify as “hate speech”?

      1. Or is political necessity enough?

        1. Lefty665 Avatar

          Say it ain’t so. Using falsehood as a political cudgel? Heavens to Murgatroyd that’s triggering.

    3. The only thing that favorably impressed me about the content of any of those incredibly biased text books is that the people who wrote The American Pageant, 17th edition know how to properly use the word “myriad”.

  9. Joe Jeeva Abbate Avatar
    Joe Jeeva Abbate

    As smart folks and intelligent commentators, you of course understand the basics about school bullying and about speech or activity that can result in violence and even school shootings.

    A report from UNESCO noted, “Bullying in schools deprives millions of children and young people of their fundamental right to education. A recent UNESCO report revealed that more than 30% of the world’s students have been victims of bullying, with devastating consequences on academic achievement, school dropout, and physical and mental health.

    Here is what you need to know about school violence and bullying.

    What is school violence?

    School violence refers to all forms of violence that takes place in and around schools and is experienced by students and perpetrated by other students, teachers and other school staff. This includes bullying and cyberbullying. Bullying is one of the most pervasive forms of school violence, affecting 1 in 3 young people.”
    (https://www.unesco.org/en/articles/what-you-need-know-about-school-violence-and-bullying)

    A question for all of us (and the focus of several studies) is what impact school bullying and school hate speech has on school violence and school shootings. A number of school shootings have been linked to students who were bullied, became disturbed and angry, and then easily obtained powerful weapons, returned to their school to massacre children and fellow students.

    1. Lefty665 Avatar

      Interesting, you lead with the assertion that we all understand school bullying then deliver a lecture on school bullying.

      A study of mass shootings since the 1960s, The Violence Project, has shown that they are suicides, not motivated as revenge massacres of children or fellow students. Kids are vehicles for suicide, not causes. That makes their deaths even more tragic, but is not evidence that they are acts of revenge for bullying.

      https://www.theviolenceproject.org/

      The argument is that Loudon’s bias reporting system is a violation of the 1st Amendment rights of students. Loudoun’s bizarre assertion that student’s parents do not have standing to challenge it on those grounds is also contrary to our Constitution, as the court of appeals has held. It is yet another example of what is profoundly wrong in Loudoun’s school system.

      Loudoun and its students have a real interest in combating bullying. However, Loudoun must do it in ways that are not destructive of our basic rights and freedoms. To conflate that Constitutional requirement with school shootings in which kids are murdered allegedly as revenge for bullying is an emotional appeal to prevent rational discussion. You as a smart and intelligent commenter I feel sure understand that.

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