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 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.