Courthouse News Service

Fourth Circuit Lets Parents Fight Virginia School Bias Reporting Policy

April 14, 2023

(Courthouse News Service)—The Fourth Circuit ruled Friday that a northern Virginia school system’s bias reporting forms could have a chilling effect on students’ free speech.

The opinion, penned by U.S. Circuit Judge Marvin Quattlebaum, orders the district court to reconsider a group of parents’ First Amendment claims on the merits.

“The parents have sufficiently alleged a particularized, concrete injury required for standing to challenge the reporting system that includes the perceived bias forms,” wrote Quattlebaum, a Donald Trump appointee.

The ruling comes after a three-judge panel of GOP appointees – also consisting of U.S. Circuit Judges Paul V. Niemeyer, a Ronald Reagan appointee, and Steven G. Agee, a George W. Bush appointee – heard oral arguments for the case in early December.

Three Loudoun County school system parents sued on behalf of themselves and their children, claiming policies stemming from a 2020 action plan to combat systemic racism ostracized their children. The school system implemented the action plan following a third-party audit that found students of color faced racial discrimination.

The school system created the School Equity Ambassadors Program to give students a space to discuss incidents of discrimination at school with the school board’s supervisor of equity. In addition to the program, the school system introduced the Share, Speak Up, Speak Out: Bias Reporting Form. Using this online form, parents and students can anonymously report an incident of bias.

The original criteria for being an ambassador stated that the program was for “all students of color,” which sparked backlash from parents. The revised standards eliminated racial requirements but maintain that applicants should be focused on raising the voices of students of color in meetings and be interested in social justice.

The parents brought five claims, three regarding the SEA program and two regarding the bias reporting form, to a federal court in Alexandria. They allege the program violates the 14th Amendment’s equal protection clause because it discriminates based on race, as well as the First Amendment and the equal protection clause because it discriminates based on viewpoint. They claim the form violates the First Amendment by chilling speech through content-based speech restrictions and viewpoint discrimination.

The district court granted the school board’s motion to dismiss, finding the parents failed to plausibly plead that Loudoun County Public Schools enacted the program with discriminatory intent or had a discriminatory impact. Regarding the viewpoint claim, U.S. District Judge Anthony Trenga determined that the program is a nonpublic forum that only needs to be rationally related to a legitimate government purpose.

In Friday’s decision, the Fourth Circuit agreed with the lower court that the parents lack standing on all claims related to the ambassador program, as none of their children were deprived of admission to the program.

The three-judge panel disagreed, however, with the determination that the parents lacked standing for claims regarding the bias incident forms. According to the ruling, establishing standing in lawsuits claiming the chilling of free speech does not require disciplinary actions to take place first.

Quattlebaum noted the parents allege the policy makes their children self-censor themselves on controversial issues like critical race theory and gender identity for fear of being reported.

“These allegations are sufficient to show that the bias reporting system caused the parents’ children to experience a non-speculative and objectively reasonable chilling effect on their speech,” the opinion states.

Attorneys representing the parents see the ruling as a step toward eliminating the suppression of protected speech in schools.

“Students should be able to speak their minds and share their opinions without fear of retaliation from school officials. We’re glad that families in Loudoun County will have the opportunity to push back against the radical agenda being forced on students in public schools,” Jacob Huebert, president of the conservative law firm Liberty Justice Center, said in a statement. “Together, we’ll fight to end Loudoun County’s divisive policies that suppress free speech.”

An attorney representing the school board did not respond to a request for comment.