Part III – Questions raised by Attorney General Herring’s Loudoun County Schools Determination

by James C. Sherlock

Still smiling?

The citizens of Loudoun and LCPS need to understand all the implications of the Attorney General’s determination.

This essay will offer questions that I sincerely recommend that LCPS pose to the Attorney General in order to get enough information to decide what to do. The AG’s office was given 60 days after the November 18 date on the determination to comply, so it should act immediately to get answers.

Immediately above Mr. Herring’s signature on the cover letter is the following statement:

Having found reasonable cause to believe that LCPS’s policies and practices resulted in a discriminatory impact on Black/African-American and Latin/Hispanic students, the Division of Human Rights request that the Charging Party (NAACP Loudoun) and Respondent (LCPS) engage in a post-determination conciliation process in an effort to resolve this matter. The final determination includes reforms and commitments that the Division believes are necessary to address the discriminatory disparate impact identified and help ensure equal opportunity for each student, as well as terms requested by the Charging Party in order to resolve this matter. (bold added)

Part II of this series listed those terms.

In the finding, there were two types of reforms required by the government. One type was things that need to be accomplished to ensure a statistically representative student body at Loudoun Academies. The other had to do with hiring, retention and promotion of minority employees, anti-discrimination policies, student discipline, and complaint systems.

I offer a series of questions that LCPS may wish to pose to the Attorney General to clarify the determination.

1. If LCPS complies with all of the specific reforms demanded by the government in this finding, but rejects some or all of the NAACP requests, can we presume that the government is satisfied?
2. Your determination requires us to be unethical in order to be legal. Without acknowledging it in the determination, your finding unequivocally forces us to reduce artificially the number of Asian Americans in the Loudoun Academies. That is profoundly wrong. We appear to have an option. There was no part of the determination that required LCPS to maintain any magnet school, including Loudoun Academies. If the county abolishes the Loudoun Academies and turns the campus into a regular high school to avoid some of the costs and severe ethical challenges imposed by the determination and government-sponsored NAACP requests and uses the savings to help pay other costs imposed by the determination is the government satisfied? If LCPS decides to close the Academies, will the government file suit to keep them open? If so, under what theory of law?
3. The NAACP requested a public charter school “with a focus on Black/African American studies and eliminating the historical achievement gap experienced by Black-African American students in LCPS.” There is no mention of Hispanic students. If the LCPS agrees to open a segregated Black-only charter school that the NAACP has requested, will your Human Rights Division sue to stop it now that you have published that request as part of your determination? For equity purposes does LCPS also have to open a Hispanic-only charter school if it opens one exclusively for black students?
4. We assume this endorsement by your office of segregated charter schools opens the door to create similar schools throughout the Commonwealth? Is that true?
5. If LCPS brings in Success Academies with their astonishing success teaching poor minority kids in NYC to create the charter school, will you and the VDOE support all of the methods that organization uses to attain such results? If not, they won’t come, nor will any other successful public charter school organization.
6. This determination by extension sets rules for every school district in Virginia. Many may close for the same reasons, ethical and financial, that LCPS may close Loudoun Academies. Will that satisfy the objectives and findings of the determination?
7. By logical extension, this determination applies to every AP class in Virginia. How much time do school districts have to achieve demographically matching results in AP classes?
8. Would a change in Subdivision B 2 of § 2.2-520 of the Code of Virginia making Asian Americans a protected class for the application of that Section change the basis for future determinations that discriminate against Asian Americans like the determination in Loudoun County?
9. Subdivision B 2 of § 2.2-520 of the Code of Virginia creates a non-judicial process to adjudicate disputes. The evidence cited in the LCPS determination meets no judicial standard. Is it your opinion that the government determinations resulting from that process are admissible in court absent the inadmissible evidence? If not and the defendant can go to court, then what has the process accomplished?