Loudoun School Board Flouts Law, Constitution

Loudoun County School Board meeting… before the restrictions. Photo credit: Loudoun Times

by Emilio Jaksetic

According to The Virginia Star, the Loudoun County School Board has issued new procedures for its public meetings that improperly restrict the right of Virginians to comment at public meetings.

Citing “ongoing security threats” the school system website declared: “Only people signed up to speak to the School Board will be allowed to enter the building. For everyone’s safety, no public viewing area will be open during the public comment portion of the meeting.” Also: “Although the School Board is committed to public input, there remains concern about the safety of all participants in the public-input process. The safety and security of all staff, students and visitors remains our highest priority.”

Any School Board rules or procedures limiting speech at public meetings must comply with the First Amendment of the U.S. Constitution. (See the Attorney General Opinion of April 15, 2016.) Further, criticisms of governmental officials — including personal attacks — are protected speech under the First Amendment of the U.S. Constitution. Accordingly, public criticisms of Loudoun County Public Schools and the Loudoun County School Board are protected by the First Amendment and cannot be impeded by the School Board.

Any School Board rules or procedures also must comply with the Virginia Constitution. As elected officials, the School Board members are bound by the Virginia Constitution and are answerable to the people of Loudoun County. Furthermore, the Virginia Constitution protects freedom of speech and the right to petition the government for redress of grievances.

Public comments by the public, including criticisms of governmental officials, are an important means of expressing grievances and holding government officials accountable. By unduly restricting the ability of Virginians to exercise their constitutional right to make public comments about the actions of the School Board, the board is improperly trying to reduce its accountability to the public.

Any School Board rules or procedures pertaining to public meetings also must comply with the Virginia Freedom of Information Act. The School Board cannot adopt any rule or procedure that conflicts with the provisions of the Virginia FOIA. According to the Virginia FOIA, with few exceptions, government meetings must be open to the public. Two provisions of the new School Board procedures violate those statutory provisions: (1) No person may make a comment at a public meeting without having pre-registered with the School Board, and (2) “Only people signed up to speak to the School Board will be allowed to enter the building.”

The pre-registration required runs afoul of the Virginia FOIA provision that meetings must be open to the public. Nothing in the FOIA states or suggests that the School Board can limit or restrict that statutory requirement by imposing a pre-registration requirement, or that a member of the public waives or forfeits the right to attend a public meeting by refusing or failing to pre-register for it. Nothing in the Virginia FOIA grants the School Board the right to create categories of people who can and cannot attend its public meetings, or categories of people who can and cannot make public comments at such meetings.

Limiting entrance to the building to only those people pre-registered to make comments to the School Board at a public meeting is improper for additional reasons. This procedure precludes any person who wants to just observe the School Board’s public meeting in person (without making any public comment) from exercising their lawful right to do so under the Virginia FOIA. It also prevents attendance at a School Board public meeting by anyone (family member, relative, friend, neighbor, or other person) who wants to be present to give moral support to another person making a public comment. Furthermore, the prohibition implies that the School Board will exclude members of the press because they will not be attending to make public comments.

Any parent, custodian, or legal guardian of a pupil attending public schools who is aggrieved by an action of a School Board can seek judicial review under Virginia Code Section 22.1-87. And, any Virginian seeking to vindicate his or her rights under the Virginia FOIA can seek relief under that statute. Anyone interested in seeking such relief should get professional advice and assistance from a lawyer currently licensed to practice in Virginia.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.