Part IV – Herring’s LCPS Determination and the Constitution

Constitution of Virginia

by James C. Sherlock

We have in this series explored the case In Re: Final Determination of the Office of Attorney General Division of Human Rights in DHR Case No.: 19-2652, NAACP Loudoun Branch v. Loudoun County Public Schools (LCPS).  

This non-judicial investigation and determination has made famous:

  • the new law, Subdivision B 2 of § 2.2-520 of the Code of Virginia that established in 2020 the Department of Law (AG’s office) Division of Human Rights (the Division);
  • the Virginia Human Rights Act, Virginia Code § 2.2-2900 et seq and Virginia Code § 2.2-520 et seq (The Act) that Herring’s new Division of Human Rights cited in this finding; and
  • the regulations written by the Division’s itself to guide its actions and the compliance of wrongdoers.

The determination was a result of a formal investigation that admitted evidence, including six and 1/2 pages of hearsay, that no court would have considered.

It measured the discriminatory impact on Black/African-American and Latinx/Hispanic students who applied and were accepted to Loudoun Academies by means of a racial statistical analysis of the student body.

It found that while the policies used by LCPS for application and acceptance to Loudoun Academies were neutral, the effects of those policies were discriminatory.

From those statistical results it found that even with the extraordinary affirmative steps by LCPS to recruit and train minority students to prepare them to compete for a seat in Loudoun Academies and blind selection procedures, LCPS failed to remedy the racial imbalance in Loudoun Academies.

It was made crystal clear that this is a numbers game. Failure to achieve the numbers means failure to comply.

From this mix of “evidence,” the Division of Human Rights determined:

There is REASONABLE CAUSE to believe that Loudoun County Public Schools administration of the Academies of Loudoun program had a discriminatory impact on Black/African American and Latinx/Hispanic students who applied (to Loudoun Academies)….

Immediately following the words above, the DETERMINATION requested that LCPS take actions in reference to regulations written by the new Division itself found in VAC 45-20-100 of the Regulations of the Division of Human Rights.

Integral to the Division’s DETERMINATION was NAACP Loudoun Branch’s Conciliation Request reviewed in Part II of this series of essays.

Then came the Division’s Request for Assurance of Compliance.

Summarized, it included:

  • Within 60 days, LCPS will partner with … the NAACP Loudoun Branch to develop policies and procedures to increase diversity of the applicant pool and the population of admitted students in gifted and talented education programs including Academies of Loudon (and various other programs) …
  • Within 60 days, LCPS will submit revised and updated policies and practices ensuring non-discrimination in student discipline. This again requires statistical equality.
  • Within 60 days submit for the Division’s review revised and updates policies and practices … governing racial, national origin and religious-based discrimination and harassment.
  • … submit for Division’s review revised and undated EEO policies and practices. …
  • During the two-year period that follows the execution of the Letter Agreement and at its own expense, LCPS will Identify for Division review and approval a third-party consultant to assist LCPS in monitoring, assessing and making recommendations relating to the obligations in Paragraph 3, 4 , 5 and 6 (above) of this Letter Agreement.

Constitutional questions

Lawyers for Loudoun County should consider whether the requirements in the constitutions of Virginia and the United States for due process and separation of powers have been violated by Virginia’s new law designating a division of the executive department as a quasi-judicial agency. That agency is empowered to investigate, rule and levy penalties in matters of law.

Those same lawyers should consider whether statistical inequality in a competitive program based on demographics, the only evidence reported by the determination that is not hearsay, is sufficient to find civil rights have been violated.

The majority of the Supreme Court in Regents of the University of California v. Bakke in a fractured decision with six separate opinions agreed that the university’s use of strict racial quotas was unconstitutional.

Yet the Division’s determination unmistakably requires strict racial quotas.

Finally, the Division published in its own determination the request by the NAACP that LCPS provide what can only be understood as a segregated public charter school. Is Brown moot here?

These are just the questions of a layman, but it is crucial that the citizens of Virginia know whether this entire process is constitutional.

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33 responses to “Part IV – Herring’s LCPS Determination and the Constitution

  1. I posted this comment earlier elsewhere, and its is equally appropriate and fitting here:

    Yes, based on his actions Herring is not only a racist, he is a virulent racist, who is also the chief law enforcement officer in the state of Virginia. So in a corrupt regime he’s akin to Heinrich Himmler, both an architect and executive of evil.

    Best, I can discern, he is goosestepping around the Commonwealth of Virginia, blowing up its institutions, spreading hate, and pitting groups of people, one against the other, for no good reason at all. A kind of gratuitous evil driven by a lust for power. That is how I read Herring, based on his actions to date.

  2. Baconator with extra cheese

    Nah…. DJ AG Blackface isn’t a racist…. he’s always been down with the cause… now he’s just “throwin’ his hands in the air because he’s a true player”!

  3. James Wyatt Whitehead V

    LCPS has until midnight Sunday January 17th to comply with comrade Herring. Who is going to do the heavy lifting to get this done? Not Eric Williams the superintendent, his parachute works and will be landing in Texas. Not the Chief of Staff Nyah Hamlett, her parachute works and has already left for a superintendent job in NC. That leaves the director of equity, Lottie Spurlock. I don’t see enough institutional experience on her resume to pull this compliance together. Assistant Superintendent for Instruction Ashley Ellis might be the best point person. But she is white and could not even navigate the LBTQ children’s books controversy. So Loudoun will be left with Rev. Thomas, the Loudoun Branch of the NAACP, and a school board that just wants this all to go away. I suspect much of the wish list will be granted. Captain Sherlock don’t forget a Part V on January 18th, 2021.

    • Thanks Jay. You are way closer to it than I, but here is a potential Plan B for Loudoun. Any money spent on this, either lawsuit or the terms of the extortion, is really the City Council’s money, not the school board’s, since in Virginia that’s the system. So you may consider convincing the Council to hire an attorney to go to a federal judge for an emergency order freezing this whole nonsense pending a constitutional challenge to the Virginia law under which it was conducted. If they decide to sue, I know a senior member of the General Assembly who would likely take the case.

      • “I suspect much of this wish list will be granted.”

        Cowardice is without bounds in Virginia today under regime of threat and intimidation by regime and its privileged fellow travelers. So generations of children suffer grievous harm daily everywhere.

      • James Wyatt Whitehead V

        The Loudoun County Board of Supervisors is made up of 9 members. 6 Democrats and 3 Republicans. They are not going to touch this in a critical way with a ten foot pole. To do so would be a risk of self immolation. The fellow who is leading the Loudoun PACT. Parents Against Critical Race Theory. He might be the best source of resistance.

        • See my response to Dick below. Whether of not the Board folds, the Asian American families should sue. They are certainly the injured party.

        • Pervasive fear, myopic apathy, and cultural disorientation are the telltale sign of citizens living under the oppressive rule of the modern leftist Leviathan state. And of course apathy is growing like Topsy in Loudoun County as evidenced by its cowed and dysfunctional Board of Supervisors at the very time Loudoun’s citizens need the Board the most. This neutering of the Board’s legitimate authority is precisely what Virginia’s leftist Leviathan state is after. Once Loudoun’s representative government is crushed, neutered and humiliated, the state’s masters expect all legitimate local authority in Virginia to fall in line as abject, obedient, and cowed serfs of the state regime’s central power. This is classic state oppression as it was first described in Hobbes.

      • This collapse of local authority in Loudoun County, its being driven mute by “higher authority”, to cower in its own abject silence, is the telltale tactic of the leftist leviathon state. How its coercive centralized power penetrates and dominates over every aspect of its citizens lives. It’s living hell where “right side up” vanishes into upside down. Where truth disappears into halls of smoke and mirrors and echo chambers of lies and misinformation spewed by an all powerful state that rules everyone.

        A fine primer on this modern version of living hell is found in the works of Franz Kafa. Here is a nutshell bio adapted from Wikipedia.

        Franz Kafka (1883 – 1924) was a German-speaking Bohemian novelist and short-story writer, widely regarded as one of the major figures of 20th-century literature.

        Kafka’s work fuses elements of realism and the fantastic. It typically features isolated protagonists facing bizarre or surrealistic predicaments and incomprehensible socio-bureaucratic powers. Kafla’s work explores alienation, existential anxiety, guilt, and absurdity.

        Kafla’s best known works include “Die Verwandlung” (“The Metamorphosis”), Der Process (The Trial), and Das Schloss (The Castle). It coined the term Kafkaesque.

        Kafka was born into a middle-class German-Jewish family in Prague, the capital of the Kingdom of Bohemia, then part of the Austro-Hungarian Empire, today the capital of the Czech Republic. Trained as a lawyer. Kafka wrote hundreds of letters to family and close friends, including his father, with whom he had a strained and formal relationship. He became engaged to several women but never married. He died in 1924 at 40 from tuberculosis.

  4. Without getting into the substance of this argument, I submit that two assertions are without merit.

    First is the complaint over the establishment of a “division of the executive department as a quasi-judicial agency. That agency is empowered to investigate, rule and levy penalties in matters of law” and the suggestion that this action constitutes an unconstitutional separation of powers. That is nonsense. Lots of executive agencies have been given the power to establish regulations, investigate the violation of those regulations, and levy fines (penalties) for their violation. Two examples would be the Virginia Alcoholic Beverage Control Authority and the Department of Environmental Quality. It would be a violation of the concept of separation of powers if those agencies could hand down criminal penalties. The fines are civil, not criminal, fines.

    The second wrong assertion is that the AG’s Division of Human Rights is authorized to “levy penalties in matters of law.” The Code of Virginia does not give the Division the authority to levy penalties. Paragraph B. 4 of Sec. 2.2-520 authorizes the Division to “Seek through appropriate enforcement authorities, prevention of or relief from an alleged unlawful discriminatory practice.” Note: through “appropriate enforcement authorities”, not take preventive action or provide relief itself.

    Sec. 2.2-3907 of the Virginia Human Rights Act sets out these provisions regarding the results of investigations of the Division:
    “When the Division determines that further endeavor to settle a complaint by conference, conciliation, and persuasion is unworkable and should be bypassed, the Division shall issue a notice that the case has been closed and the complainant shall be given notice of his right to commence a civil action.
    G. At any time after a notice of charge of discrimination is issued, the Division or complainant may petition the appropriate court for temporary relief, pending final determination of the proceedings under this section, including an order or judgment restraining the respondent from doing or causing any act that would render ineffectual an order that a court may enter with respect to the complainant.”

    Notice that, for relief, the complainant must go to the “appropriate court”.

    Finally, the regulations promulgated by the Division do not convey the authority to levy a penalty or to issue a legally enforceable order that certain actions be taken:
    Administrative code 1 VAC 45-20-120
    “If the division accepts the hearing officer’s findings that the respondent has committed an unlawful discriminatory practice, the division shall state its findings and may issue recommendations to the respondent to eliminate the discriminatory practice, including….”

    In summary, the Division can investigate, issue findings, and make recommendations. However, those findings and recommendations are not binding. To make them binding, anyone having a complaint must go to court.

    • When the General Assembly defeated the bill that would have mandated all larger employers file massive annual payroll data, it substituted language calling on OAG to come up with another version for consideration in 2021. To determine what kind of information it could seek to proactively enforce laws against gender, race, whatever flavor of discrimination it sought to put down. That report was due to the Governor and the General Assembly yesterday. Perhaps it will surface soon…

      If the General Assembly adds that task to the office’s mission, it will become clearer to those who should care just what is going on. A few articles on Bacon’s Rebellion are not going to break through the noise.

    • Then they need to find about $150 million in their Christmas stocking. If they won’t do it, then someone else will need to bring suit. The Loudoun Asian-American families would have standing.

    • Your “without merit” comment is for the courts to decide.

      The ABC Board and the Department of Environmental Quality don’t rule based on race.

      You are correct that LCPS can – and should in my view – reject the “determination” of the Division. I have recommended they do that as the first step. They can go either to state or federal court for an emergency injunction and follow-on trial.

      If the LCPS or Board of Supervisors won’t go to court, the Loudoun Asian-American parents have standing to do so or to join Loudoun if it sues.

      If the issue goes to court, the VAC regulations are irrelevant, but this “determination” will be plaintiff’s exhibit A. Since virtually every piece of “evidence” in the determination is inadmissible in a court of law, the only thing that will remain is the statistical analysis of the racial makeup of Loudoun Academies and the state demand that it be remedied, which seems to fly in the face of Bakke.

      In any event, if LCPS submits to this, it will find itself at the defendant’s table if the Asian-Americans sue.

      • LCPS does not have to do anything. If it does nothing, then the Division or the complainant can seek court action. Then LCPS would need to defend itself in court, if it chose to do so. You are right that the Division’s determinations would be one of the exhibits in the plaintiff’s case. I have no idea how much weight a court would give that determination.

        • Neither do I.

        • “Since virtually every piece of “evidence” in the determination is inadmissible in a court of law, the only thing that will remain is the statistical analysis of the racial makeup of Loudoun Academies and the state demand that it be remedied, which seems to fly in the face of Bakke.”

          “I have no idea how much weight a court would give that determination.”

          As a matter of law and precedent, I would expect a court of give this evidence de minis weight. But since the left has no apparent respect for law or precedent, except to extent the left believes it to serve their private advantage, this case could turn American law and society upside down into a totalitarian state, all as envisioned and planned by the current regime in power in Virginia.

  5. Brown and Brown II were also SCOTUS cases that deal with segregation and in fact demand affirmative action toward integration and are far more germane to any discussion of how a public school system should handle itself than Bakke, but crickets…

    • Bakke was exactly on point here once you strip out the inadmissible “evidence” that the Division used and all that is left is their statistical analyses.

      • No. Primary and secondary schooling are compulsory and fall within the realm of Brown and Brown II while post-secondary educational is strictly voluntary and falls within the realm of Bakke.

    • I still find the facts of Bakke and the facts of Loudoun Academies to be nearly identical.
      – Exclusive publicly funded school – UC Med School or LCPS Loudoun Academies – that has competitive entry requirements uses racial quotas to fill its student body.
      – Plaintiff applicant complains he was excluded solely based on his race.
      – Court finds for the plaintiff.

      You seem to be saying that because one is a competitive college application and the other is a competitive high school application the court could not cite Bakke. If true, I find that strange.

  6. I just sent an email to the members of both the School Board and Board of Supervisors of Loudoun County. I listed all four columns on this topic and gave them the calculated costs of just the NAACP’s request for full college scholarships for students the NAACP claims were denied fair access to Loudoun Academies in the years under consideration in the determination:

    Cost estimate: 849 students full scholarships to college. $30,000 to $50,000 per year per student x 4 Years. Total cost $101,840,000 to $169,800,000.

    • “Cost estimate: 849 students full scholarships to college. $30,000 to $50,000 per year per student x 4 Years. Total cost $101,840,000 to $169,800,000.”

      Yes, as becomes ever more clear by the day and year, what these sorts of smears are about, at base, is the theft of other people’s money and the destruction of their culture, inheritance, and legacy. This is nothing new. It is classic leftist ideology and tactics. Just ask the Russians, Poles, Cubans, Hungarians or Venezuelans, for starters. Now we can add Loudoun County, Va. to the long lists of targets headed for misery.

    • James Wyatt Whitehead V

      The cost to construct the Academies of Loudoun campus was $125 million for a bit of perspective.

  7. Reed. Comparing Herring to Himmler is way over the top and diminishes this blog. Please knock it off.

  8. James Wyatt Whitehead V

    What is left of the LCPS leadership, the school board, and the board of supervisors will comply with Herring. The school systems reputation and brand is at stake. Political fortunes are at stake. It’s not their money it’s the people’s money so the players involved aren’t too concerned about that either. The damage that is about to be done. Incalculable. It is as if you can see it coming but are helpless to stop it.

  9. Capt. Jim, I have no problem having an activist AG and I agree with
    Much of what Herring has done. Previously, the office was run by chair warmers waiting to run for governor.

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