This article by Joe Dodson was published December 8, 2022 on courthousenews.com.
RICHMOND, Va. (CN) — Students often join school clubs or organizations hoping to bolster their resumes for college admissions offices. But three Virginia parents claim their children face exclusion from a school system’s student equity ambassador program based on their beliefs and race.
On Thursday, a Fourth Circuit panel of three Republican-appointed judges heard arguments between the parents and Loudoun County’s school board, after a federal judge dismissed the parents’ claims for failure to show how the program harmed their children.
“My clients would not be accepted, so they sued,” Liberty Justice Center attorney Daniel Suhr, who represents the parents, said during the hearing.
A 2019 equity audit of Loudoun County Public Schools found that students of color face a hostile learning environment that includes racial insults or slurs. In response, the school board developed an action plan to combat systemic racism in June 2020.
“The Action Plan included developing the Student Equity Ambassador Program to amplify the voices of students and to emphasize student voice in education more generally,” the school board’s brief to the Fourth Circuit states.
Three parents sued in Alexandria federal court, challenging the SEA program on equal protection grounds for its alleged racial preferences and First Amendment and equal protection grounds for viewpoint discrimination.
Under the program, principals of Loudoun County middle and high schools are encouraged to select two or three students as ambassadors. The ambassadors meet periodically with the school board’s supervisor of equity to discuss injustices, marginalization or discrimination they witnessed or were made aware of.
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 should be interested in social justice.
Despite the change to the criteria, only 17% of the ambassadors are white despite white students making up 43.9% of the student population.
Patti Menders, Scott Mineo and another parent who has maintained anonymity claim in their lawsuit that their children do not meet the criteria to be ambassadors and are being unfairly excluded. Menders is the Virginia Attorney General Office’s community liaison officer for northern Virginia.
“Our kids have the right to develop their own opinions, free from indoctrination and school-sanctioned bullying,” Mineo, founder of Parents Against Critical Theory, told the Washington Examiner last year. “Instead of opening young minds, Loudoun County school leaders are policing them. This is not education; it is coercion.”
U.S. Circuit Judge Marvin A. Quattlebaum Jr., a Donald Trump appointee, asked Suhr on Thursday how his clients have standing if they never applied to the SEA program in the first place.
“I haven’t seen where you pled you were deprived of admission,” Quattlebaum said.
The parents claim that despite revised criteria for acceptance into the program, their children would still not be allowed to join as they disagree with the stances associated with those interested in social justice.
“Although social justice is a term many scholars and speakers have used, which might have generic meanings in a dictionary, the term in this context refers to a particular ideology associated with progressive politics,” the parents’ brief to the Fourth Circuit states.
The parents believe that students with differing views on gender identity or critical race theory would be discouraged from joining the program.
“If the government selected students based on GPA, that would be fine,” Surh said of the criteria provided by the school board. “If they selected only Republican students, that would not be fine.”
Attorney Andrew Selman of Haney Phinyowattanachip represented Loudoun County and agreed with Quattlebaum’s suggestion that legal standing was not established.
“The students in question did not apply or show any interest,” Selman said. “I don’t think they’ve alleged injury.”
The second issue is the program’s bias reporting form given to students and parents, which form the basis for SEA meeting discussions. A student or parent may report an incident of bias via the form anonymously, or they can opt to put their name on the form and request a further investigation from the administration.
The parents believe that the form has a chilling effect on free speech among students. The school board contends that students turned in for bias incidents would not be subject to disciplinary action.
“The Action Plan makes clear that the Bias Reporting Form does not supersede any existing policies or codes of student conduct,” the school board’s brief states.
U.S. Circuit Judge Paul V. Niemeyer, a Ronald Reagan appointee, agreed with the parents’ point on the chilling effect on free speech.
“When you invite student-on-student snitching or student-on-student ratting, isn’t that an obvious chilling effect?” Niemeyer said.
But Niemeyer also seemed sympathetic to the school board’s motivation for creating the program, despite questions over its constitutionality. He spoke on how addressing discrimination is a fundamental policy in the U.S.
“The school board is clearly trying to address the problem,” Niemeyer said.
The Fourth Circuit heard a similar case in October over Virginia Tech’s bias response team, but has yet to issue an opinion.
Suhr argued they are very different cases as one pertains to K-12 education while the other involves a college. He said calling a seventh grader into the principal’s office for wearing a red MAGA hat would be more likely to compromise their beliefs than a college student.
U.S. Circuit Judge Steven G. Agee, a George W. Bush appointee, also sat on the panel. The judges did not indicate when they would issue a ruling.
The attorneys did not respond to requests for comment by press time.
The hearing comes a day after the firing of Loudoun County Superintendent Scott Ziegler following the release of a special grand jury’s report regarding the investigation of sexual assaults of two girls in separate high schools.
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