Tag Archives: Emilio Jaksetic

Fairfax County Public Schools and “Equal Outcomes”

by Emilio Jaksetic

According to an article by Asra Q. Nomani and Heather Zwicker, Fairfax County Public Schools has signed a sole-source contract with Performance Fact, Inc., which explicitly advocates the following: “To have an equity-centered organization, we have to have the courage and the willingness to be purposefully unequal when it comes to opportunities and access.”

It is worth noting that the President/CEO of Performance Fact, Inc. is listed as a Facilitator of the Fairfax County Public Schools (FCPS) Strategic Planning Process.

The article by Ms. Nomani and Ms. Zwicker contains a hypertext link to an “Equity-centered Strategic Planning” presentation made at a School Board retreat on September 20, 2022 at Falls Church, Virginia. The presentation is attributed to the President/CEO of Performance Fact, Inc. In that presentation, on page 24, there is a list of 16 “equity indicators” that are supposed to help determine whether or not there is “consequential ‘equity disparity’” among student groups, including the following:

2. Self-Regulation and Attention Skills
3. Engagement in Schooling
4. Performance in Coursework
5. Performance on Tests

Continue reading

Luria Transmogrifies Oath of Office

Representative Elaine Luria, Virginia 2nd district

by Emilio Jaksetic

On January 6, 2022, Representative Elaine Luria (D-2nd District) announced her decision to run for reelection. In the opening sentence of her statement she said: “On the anniversary of the January 6th insurrection, I recommit to uphold my oath to ‘support and defend the Constitution of the United States against all enemies foreign and domestic.’”

She correctly quoted language from the oath of office required by military personnel and federal officials and employees. (See the oath of office here.) But later in her remarks, she engaged in an odd verbal prestidigitation.

“I take my oath seriously. Today I know that my continued service is not a choice, but a duty to our nation and our values as Americans,” she said. Her remarks ended with the following closing: “I took an oath to serve. And in this critical moment for our democracy, I intend to continue to serve.”

Without warning and without explanation Luria magically transformed the oath of office from a commitment to defend the Constitution into a duty to serve by continuing in office and running for reelection. Continue reading

Herring’s ERA Advisory Opinion Is Flawed, Self-Defeating

by Emilio Jaksetic

On January 6, 2022, Attorney General Mark Herring issued an advisory legal opinion in which he concluded that the Virginia General Assembly cannot rescind its January 2020 decision to ratify the Equal Rights Amendment (ERA).

What is amazing about Herring’s advisory opinion is its reliance on one passage of the Supreme Court decision in Coleman v. Miller, 307 U.S. 433 (1937), while failing to address a later passage in that decision that renders his advisory opinion irrelevant and nugatory.

Herring quotes the following passage from Coleman v. Miller, 307 U.S. at 450: “Article V, speaking solely of ratification, contains no provision as to rejection.  Nor has the Congress enacted a statute relating to rejections.”

Herring fails to mention or address the following passage from Coleman v. Miller, 307 U.S. at 452: “We have held that the Congress in proposing an amendment may fix a reasonable time for ratification. Dillon v. Gloss, 256 U.S. 368. There we sustained the action of the Congress in providing the proposed Eighteenth Amendment that it should be inoperative unless ratified within seven years.” Continue reading

Delegating Emission Standards to California Is Unconstitutional

by Emilio Jaksetic

As Steve Haner noted in a December 10 post, “Now California Will Control Virginia’s Auto Sales,” the Virginia Air Pollution Control Board (VAPCB) adopted a regulation that places ultimate control of Virginia’s vehicle emission standards in the hands of the California Air Resources Board. Although the VAPCB acted pursuant to a statute enacted by the General Assembly in 2021, the regulation is unconstitutional.

Such a conclusion may seem odd given that the VACPB regulation was issued as a result of ostensibly valid steps. First, the General Assembly has the authority to set vehicle emission standards for Virginia. Second, the General Assembly has the authority to delegate to VAPCB administrative responsibility to implement the vehicle emission standards set by the General Assembly. Third, there does not appear to be any procedural irregularity in the VAPCB’s issuance of the vehicle emission regulation. However, those three actions culminated in a regulation that violates the Virginia Constitution.

Legislative power is vested in the General Assembly. Virginia Constitution, Article IV, Section 1. Although that power is broad, it is not unlimited; the General Assembly’s power to legislate is constrained by the Virginia Constitution and the U.S. Constitution.  Terry v. Mazur, 362 S.E.2d 904, 908 (1987). Continue reading

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. Continue reading

Senator Warner Embraces Legislative Flim-Flam

U.S. Senator Mark Warner

by Emilio Jaksetic

On August 1, 2021, a bipartisan group of senators, including Senator Mark Warner, D-Va, issued a brief: “Senators’ Statement on the Finalized Bipartisan Infrastructure Agreement Legislative Text.” The statement contains a hypertext link to a draft bill that is 2,702 pages long.

As a matter of common sense, it is not plausible to believe that Warner has been able to read and understand all 2,702 pages. And it is improbable that Warner could give Virginians a reasonable and understandable explanation of the meaning, implications, and consequences of the mind-numbing multitude of provisions in the legislative monstrosity.

Warner has abandoned his responsibility as a Senator to represent Virginians in a reasonable manner. Instead, he has embraced the role of an arrogant, inside wheeler-dealer who (1) relies on secret negotiations by small, self-selected groups of senators, and (2) seeks to get legislation advanced without hearings, without a meaningful opportunity for public comment, and without reasonable legislative deliberation. Instead of being proud, Warner should be ashamed of himself. Continue reading

Dueling Claims of Victory in Transgender Lawsuit

by Emilio Jaksetic

On July 27, 2021, Judge J. Frederick Watson, with the 24th Judicial Circuit of Virginia, issued a decision on a lawsuit challenging the adoption of the Virginia Board of Education’s Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools, reports The Virginia Star. Because Judge Watson dismissed the lawsuit for lack of standing, he properly did not rule on the substantive merits of lawsuit.

A copy of Judge Watson’s decision is available here. A copy of the Virginia Board of Education Model Policies is available here.

Despite dismissal of the lawsuit on procedural grounds, both sides claimed victory.

The Christian Action Network claimed victory on the grounds that Judge Watson’s decision included a ruling that the Model Policies is a guidance document and that school boards have the option to decide whether or not to follow it. Furthermore, the Christian Action network claimed “the judge is granting school boards the right to decline to act on Virginia’s ‘Model Policies,’ which is exactly what our lawsuit intended.”

The ACLU of Virginia claimed victory on the grounds that dismissal of the lawsuit was warranted, and asserted “[a]ll school boards in the state are legally required by law to pass policies aligning with the model policies for the 2021-22 school year.” Continue reading

The Dems’ Conscience-Clause Dilemma

by Emilio Jaksetic

Virginia’s statutory adoption   conscience clause prohibits any requirement that forces private child-placing agencies to violate their religious or moral convictions when participating in the placement of a child for foster care or adoption. Virginia Democrats have advocated repeal or nullification of the clause on the grounds that the clause permits unequal, discriminatory treatment.

In February 2021, the House of Delegates passed HB 1932 to repeal the conscience clause despite objections from Republicans and Catholic adoption agencies. (See the article in The Virginia Star.) The bill was referred to a Senate Committee on Rehabilitation and Social Services, where it died. (View the legislative history.)

The list of Virginia Democrats who support repeal or nullification of the adoption conscience clause is extensive. Continue reading

Descano’s Unconstitutional Actions

Steve Descano. Photo credit: WTOP

by Emilio Jaksetic

Fairfax County Commonwealth Attorney Steve T. Descano has invoked his prosecutorial discretion to issue several “criminal justice reforms.” (Copies are available here.) As part of these reforms, Descano refuses:

(1) to prosecute any person for simple possession of marijuana;

(2) to prosecute any person for felony larceny for any amount less than $1,500 even though the statutory threshold is $1,000;

(3) to pursue any probation violation based on a conviction for possession of marijuana; and

(4) to request cash bail under any circumstance (even if defense counsel requests cash bail).

By implementing the cited policies, Descano has violated the Virginia Constitution. To reach this conclusion, it is necessary to consider: (1) the limits of prosecutorial discretion; (2) specific provisions of the Virginia Constitution that constrain all Virginia officials, including Commonwealth Attorneys; and (3) how Descano’s implementation of certain policies runs afoul of the Virginia Constitution. Continue reading

A Threat to Due Process Comes from…(Drum Roll)… Virginia’s Division of Human Rights

by Emilio Jaksetic

On November 18, 2020, Attorney General Mark R. Herring informed NAACP Loudoun Branch and Loudoun County Public Schools (LCPS) that a Final Determination (Determination) had been made by the Division of Human Rights (DHR) in DHR Case No. 19-2652. In making its Determination, DHR used a procedure that poses a serious threat to due process, specifically using confidential witness statements as evidence against the LCPS.

The case addressed the admissions policies at the elite Loudoun Academy, where African American students were enrolled at lower rates than Asians and whites. While describing how the DHR collected information regarding the witnesses offered by the NAACP, the Determination makes the following statement:

Because of apparent witness concerns surrounding confidentiality and retaliation, the Division includes below a select group of pertinent narratives reported to the Division by the fact witnesses who responded to the Division’s inquiry through correspondence or interview.

Following that statement are slightly more than six pages of extracts from multiple sources who are identified only generically. Nothing in the Determination indicates whether LCPS was provided with a copy of the statements from which the quoted extracts were taken. Even if LCPS counsel received a copy of those statements, the testimony might well have been redacted to protect the identity of confidential witnesses (1VAC45-20-82 and 1VAC45-20-83.C).  (The Department of Law’s regulations implementing the Virginia Human Rights Act are available here.)  Continue reading

Religious-Freedom Challenges to Northam’s Executive Orders

Slate Mills Baptist Church, one of the three churches suing Governor Northam. Credit: John Bowman, Flickr

by Emilio Jaksetic

Three churches in Virginia are suing Governor Northam over restrictions in his latest pandemic-related executive order, claiming their rights to religious freedom are being infringed. (See The Virginia Star article here.) The cases raise questions about Northam’s authority to limit, restrict or otherwise regulate religious activities in response to the pandemic.

In Executive Order 72 (December 10, 2020), Northam claims authority under

  1. Virginia Constitution, Article V;
  2. Virginia Code, Sections 32.1-13; 32.1-20; 35.1-10; 44.146.17; and
  3. any other applicable law.

A governor has authority by virtue of Article V of the Virginia Constitution, which details his primary responsibility to execute enacted laws. An executive order is not an originating source of authority, merely an instrument to execute or carry out authority that has been granted by the Virginia Constitution or enacted statutes. A governor cannot create new power and authority by merely issuing an executive order. Furthermore, a governor’s claims of authority in an executive order are not self-authenticating and can be legally challenged. Continue reading

Legal Futility of Virginia’s Online Petitions

by Emilio Jaksetic

Currently, online petitions are advocating the removal of the superintendent of the Fairfax County Public Schools and the principal of Thomas Jefferson High School. (See the petitions here and here.)

Such online petitions are legally futile.

Under Virginia law, removal of elected officials such as Fairfax County school board members is handled differently from removal of appointed officials such as a principal or superintendent. According to Virginia Code, Section 24.2-230:

Appointed officials. “[A]n appointed officer shall be removed from office only by the person or authority who appointed him unless he is sentenced for a crime as provided for in [Section] 24.2-231 or is determined to be ‘mentally incompetent’ as provided for in [Section] 24.2-232.”

Accordingly, no petition signed by Virginians — regardless of the number of signers — can force the removal of an appointed official in Virginia. At best, a petition signed by Virginians can be presented in the hope of persuading the appointing authority. Continue reading

Solar Panels in Virginia: A Primer

by Emilio Jaksetic

Virginia law (Virginia Code, Section 67-701 ) makes it easier for owners to consider installing solar panels on their property by limiting the ability of community associations to prohibit or restrict the installation of solar panels on the owner’s property.  While the statute is likely to encourage the use of solar panels by property owners, there are some things that should be considered by property owners, community associations, and local government officials.

First, community associations in Virginia should get legal advice about the scope and applicability of Section 67-701 before trying to prohibit or restrict an owner from installing a solar panel on the owner’s property.  (The relevant definition of “community association” is provided by Section 67-700.)

Second, owners should not rush to install solar panels on their property, and community associations should not rush to install solar panels on the common areas of their community, without considering the following: Continue reading

Herring Is Moonlighting in Election-Law Litigation

Mark Herring: busy man or busybody?

by Emilio Jaksetic

This year Attorney General Mark Herring has joined legal filings  in court cases involving election law disputes in six other states. This is strange because legal disputes about the election laws of other states: (1) are not within his jurisdiction or authority, (2) have no legal effect on Virginia or its elections; and (3) set no precedents that can bind or limit a Virginia court interpreting Virginia law.

Under the U.S. Constitution, Article I, Section 4, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ….”  And, the election laws pertaining to state and local elections fall under the relevant provisions of each state’s constitution and statutory laws. So, disputes over the election laws of other states have no bearing on Virginia’s election laws. Furthermore, nothing in the Virginia Constitution or the Virginia Code gives Herring any duty or responsibility for getting involved in legal disputes about the election laws of other states.

Nevertheless, press releases from the Office of the Attorney General show that he has joined in the filing of amicus (“friend of the court”) briefs in lawsuits concerning the election laws of the following states: Continue reading

Fairfax School Board Should Focus on Schools, Not Environmental Policy

Fairfax County Environmental, er, School Board

by Emilio Jaksetic

Not content with running the county’s public school system, the Fairfax County School Board now is involved with developing strategies and recommendations for county environmental policy. The results can be seen in the Final Report of the Oct. 1, 2020, Fairfax County Joint Environmental Task Force (JET).

In April 2019, the JET was established “to identify areas of collaboration between Fairfax County Government and [Fairfax County Public Schools] to further county efforts in energy efficiency and environmental sustainability, developing implementation strategies. and making recommendations to the [Board of Supervisors and School Board].” During the period April 2019-October 2020, five members of the board served as members of JET’s Executive Committee.

The JET was tasked to “provide a forum for informing, advising, collaborating and addressing Countywide issues and aligning institutional policies and practices pertaining to climate change and environmental sustainability through the lens of One Fairfax and to appointing bodies.” Continue reading