7/28/21: FFLC: Judge Dismisses “Transgender” Lawsuit But Clears Path for School Boards to Reject Virginia Dept. of Education Policy

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Assistant Attorney General Melissa Charnes who represented the agency said any fears about the state’s Department of Education ever coming after school boards for failing to follow the policies were misguided. Instead she noted there’s no enforcement mechanism within the model policy statute, meaning there’s no punishment for a school board if they fail to pass inclusive policies as the model policy document guides. 

“Will the state come after a school board’s funding if they don’t pass these policies?” Watson asked. “No,” she responded.

Founding Freedoms Law Center

Virginia Circuit Judge J. Frederick Watson today ruled that parents lack standing to file a lawsuit challenging the procedural and constitutional defects of the Virginia Department of Education’s (“VDOE”) recently adopted “Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools.”  

One unfortunate consequence of today’s dismissal of our lawsuit against the VDOE is that the VDOE continues to be unchecked and unaccountable, even when it so clearly violates the law, the constitution, and its own required procedures. 

FFLC’s Chief Counsel, Jim Davids, made a very salient point in court last Wednesday: If our plaintiffs don’t have standing to challenge the VDOE Model Policies, then who could? According to the judge’s opinion, only school boards could have challenged the Model Policies because they are supposedly the only ones impacted by them. But that ignores the reality that it is students, parents, and teachers who will actually be impacted by the policies the school boards adopt “consistent with” those Model Policies. The court also got it wrong on standing for another glaring reason: The Virginia Administrative Process Act requires an aggrieved person to initiate his appeal of a regulation or guidance document within a narrow 30-day period BEFORE that regulation or guidance document even goes into effect, which logically implies that anyone with standing could at best have a reasonable expectation of eventual harm once the policies are implemented.

Another very unfortunate consequence of the dismissal for lack of standing is that it meant the judge never got to answer – and hence, failed to grant – our request for a statewide injunction on the Model Policies, which we were very hopeful would suspend them long enough for the VDOE to go back and fix many of the legal and procedural problems. Now, individual school boards will continue to have to decide whether they will stand against these harmful and unconstitutional policies or cave to this destructive ideology.   

One significant outcome is that the court’s opinion clarifies that VDOE’s Model Policies are only “guidance.” While we disagree that the Model Policies were designed to be merely guidance, we urge school boards to take Judge Watson at his word by disregarding these heavy-handed suggestions from the VDOE.

Moreover, school boards should also be breathing a sigh of relief since the Attorney General’s Office is now on record (during Wednesday’s court hearing) that boards who reject this advice as wrong for children in their community need not be concerned about losing state funding as a result. (Courthouse News Service backs us up on this.)  

While the court’s decision is a disappointing development, TFF and FFLC are continuing to help school boards everywhere reject this terrible “guidance”, as some already have, like in Russell County recently, among others. Since we could not obtain a statewide injunction, this continues to be a local fight in every school district. Our Protect Every Kid campaign is here ready to supply parents and school boards with helpful resources.  

It is important to bear in mind that nothing about the actual legal claims has been addressed, so all of our same legal and constitutional concerns remain every bit a reality for school boards as they consider policies to pass. So, should any school boards choose to follow the VDOE Model Policies, Founding Freedoms Law Center will be here fighting to protect children who lose their privacy rights, parents who lose their parental rights, and teachers who lose their job over illegally compelled speech.   

In fact, we may even have to challenge certain individual school board policies in the weeks to come. Stay tuned. 

Finally, we want to thank all of you who have prayed fervently for us and for Virginia’s children, parents, teachers, and school boards through this process. It is far from over, so keep the prayers coming. 

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