by Emilio Jaksetic
On July 18, 2023, the Virginia Department of Education (VDOE) issued “Model Policies on Ensuring Privacy, Dignity, and Respect for all Students and Parents in Virginia’s Public Schools” (Revised Model Policy). A copy of that policy is accessible at https://www.doe.virginia.gov/Home/Components/News/News/308/
On August 15, 2023, Michelle Reid, Ed.D, Superintendent of the Fairfax County Public Schools (FCPS) issued a Superintendent’s Message entitled “Model Policy Update.” According to the Superintendent’s Message, “We have concluded our detailed legal review and determined that our current Fairfax County Public School (FCPS) policies [on transgender and gender-expansive students] are consistent with federal and state anti-discrimination laws as required by the new model policies.” A copy of the Superintendent’s Message is accessible at https://www.fcps.edu/news/model-policy-update.
On August 23, 2023, Virginia Attorney General Jason S. Miyares issued an advisory opinion affirming the legal validity of the VDOE’s Revised Model Policy and advising Virginia Governor Youngkin that Virginia school boards are required by Virginia Code Section 22.1-23.3 to adopt policies that are consistent with the VDOE’s Revised Model Policy. A copy of the Attorney General’s Advisory Opinion is accessible at https://www.oag.state.va.us/citizen-resources/opinions/official-opinions?view=article&id=2523&catid=30.
Attorney General Miyares is correct that Virginia Code, Section 22.1-23.3 imposes a duty on Virginia school boards. Section 22.1-23.3.B. requires “Each school board shall adopt policies [on transgender students] that are consistent with but may be more comprehensive than the model policies developed by the Department of Education pursuant to subsection A.” The word “shall” means Virginia school boards have a mandatory duty to adopt policies that are consistent with the VDOE’s Revised Model Policy. Under Section 22.1.-23.3.B., Virginia school boards have no authority or discretion to adopt or retain policies that are inconsistent with the Revised Model Policy. However, the Superintendent’s Message is a declaration that FCPS will not carry out the mandatory action required by Section 22.1-23.3.B. Continue reading