Ibanez v. Albemarle Cty. Sch. Bd.

897 S.E.2d 300

80 Va.App. 169

Carlos IBANEZ, et al.

v.ALBEMARLE COUNTY SCHOOL BOARD, et al.

Record No. 0951-22-2

Court of Appeals of Virginia, Richmond.

February 20, 2024

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY, Claude V. Worrell, Judge

Vincent M. Wagner (Christopher P. Schandevel; David A. Cortman; Tyson C. Langhofer; Ryan L. Bangert; Katherine L. Anderson; Alliance Defending Freedom, on briefs), for appellants.

Jeremy D. Capps (David P. Corrigan; Melissa Y. York; M. Scott Fisher; Blaire H. O’Brien; Harman, Claytor, Corrigan & Wellman, on brief), for appellees.

Amicus Curiae: Melissa Moschella, Ph.D. (Melvin E. Williams; Williams & Strickler, PLC, on brief), for appellants.

Amicus Curiae: Ian Rowe (William R. Thetford Jr.; Simms Showers LLP, on brief), for appellants.

Amicus Curiae: The Family Foundation (William H. Hurd; Annemarie DiNardo Cleary; Eckert Seamans Cherin & Mellott, LLC, on briefs), for appellants.

Present: Judges Humphreys,^* Beales and Lorish

OPINION BY JUDGE LISA M, LORISH

₁₇₆In 2019, the Albemarle County School Board adopted the Albemarle County Public Schools Anti-Racism Policy and a set of implementing regulations. The stated purpose of the Policy was to "eliminate all forms of racism from the Division." A group of parents, on behalf of themselves and their minor children then-enrolled in different grades and schools within Albemarle County, allege that the Policy, and the curriculum implemented under the Policy, violates their rights under the Virginia Constitution and a Virginia statute. The circuit court found that the underlying constitutional and statutory provisions were not self-executing and dismissed their claims for lack of standing.

₁₇₇This case raises complicated issues and has generated three separate opinions. We unanimously agree with the circuit court that the statute Plaintiffs rely on, Code § 1-240.1, contains no waiver of sovereign immunity, and is, therefore, not self-executing. Contrary to the circuit court, we all find that the first paragraph of Article I, § 11, and all of § 12, are self-executing constitutional provisions within the Virginia Bill of Rights. Then, a majority of this panel concludes that Plaintiffs either failed to adequately plead cognizable constitutional injuries under those provisions, or otherwise lack standing to pursue their claims for, declaratory relief. Judge Humphreys and I agree that Plaintiffs failed to sufficiently plead claims of compelled speech, alleged violations of equal protection and due process rights, and the asserted right to direct the education of children. Judge Beales and I agree that Plaintiffs failed to sufficiently plead the claim for viewpoint discrimination. In sum, a majority of this panel concludes that the circuit court was correct to dismiss each claim in the Complaint.

BACKGROUND

A group of parents ("Plaintiffs")¹ with minor children ("Students")² who were enrolled in the Albemarle County Public Schools filed a Complaint against the Albemarle County School Board ("Board"), Albemarle Schools Superintendent Matthew S. Haas, and Assistant Superintendent Bernard Hairston (collectively, "ACPS" or "Defendants"). Plaintiffs assert several constitutional violations on behalf of the Students, each stemming from the Board’s decision to adopt the Policy in 2019. Plaintiffs also allege one constitutional viola- tion and one statutory violation based on their status as parents.

₁₇₈We recite the facts as pleaded in the Complaint and its attachments. Steward ex rel. Steward v. Holland Fam Properties, LLC, 284 Va. 282, 285, 726 S.E.2d 251 (2012); see Rule 1:4(i) ("The mention in a pleading of an accompanying exhibit, of itself and without more, makes such exhibit a part of the pleading."). While Defendants raised the issue of standing in a plea in bar, in their opening brief Plaintiffs limited our standing inquiry to only "the allegations in their complaint and the evidence attached to it … including the more complete versions … produced in response to Defendants’ motion craving oyer." Thus, we do not review or consider the affidavits and other documents attached to Plaintiffs’ motion for a preliminary injunction or to other filings after the Complaint.³

A. The Anti-Racism Policy

In 2019, the Board adopted the Policy, a copy of which is attached to the Complaint. The Policy states that the Board and ACPS "reject all forms of racism as destructive to the Division’s mission, vision, values, and goals," and sets out principles of equality to which the Board committed itself. The "purpose" statement identifies "[c]ombating racism in our schools [as] a legal and moral imperative," and explains that within ACPS "there are significant disparities between racial groups in student academic performance, achievement, and participation in academic programs." The "purpose of this policy is to eliminate all forms of racism from the Division in conjunction with related Board policies."

The Policy includes several, definitions. "Anti-racism" is defined as "the practice identifying, challenging, and changing the values, structures, and behaviors that perpetuate systemic racism." It also defines "[i]ndividual racism," "[i]nstitutional racism," and "[s]tructural (or systemic) racism."⁴

₁₇₉B. The Policy Regulations

Along with the Policy, the Board adopted Regulations, which are attached to the Complaint. The Regulations include directives about how the Policy should be communicated throughout the school system and how school leaders and administrators should address systemic racism. The Regulations also address how staff should be trained on the Policy and how the Policy would be enforced.

Under a section labeled "Curriculum and Instruction," the Regulations state, "Curriculum and instructional materials for all grades shall reflect cultural and racial diversity and include a range of perspectives and experiences, particularly those of historically underrepresented groups of color." In addition, "[a]ll curriculum materials shall be examined for racial bias," and "[t]he Board and Division shall implement an anti-racist curriculum and provide educational resources for students at every grade level." Finally, "[s]tudents in-class and extra-curricular programs and activities shall be designed to provide opportunities for cross-cultural and cross-racial interactions to foster respect for cultural and racial diversity."

The "Policy Enforcement" portion states that staff shall be responsible for collecting, reviewing, and reporting data "regarding racial disparities" in various areas across the school system. The enforcement section also assigns responsibility to the "assistant superintendent for school and community empowerment" to implement and evaluate the Policy. Finally, the section tasks the Division with ensuring that there are means for stu- dents and staff to report racism and forms of discrimination.₁₈₀ There is no mention of disciplinary action of any kind under the "Policy Enforcement" section of the Regulations.

Instead, under the "Leadership and Administration" section, the Regulations state that "[t]he Board shall implement alternative discipline processes, such as restorative justice, to reduce racial disparities in discipline and suspension." They then explain:

a. To ensure consistency in student discipline, each school shall collect and, at least annually, report data on all disciplinary actions. The data shall include the student’s race/ethnicity, gender, socio-economic status, special education, and English Language Learner status, as well as a written explanation of the behavior leading to discipline and the specific corrective action taken.

b. When school administrators determine a student has committed a racist act, the student will be provided the opportunity to learn about the impact of their actions on others through such practices as restorative justice, mediation, role play or other explicit policies or training resources.

Plaintiffs allege on information and belief that, under subparagraph (b), "other explicit policies" refers to the ACPS Student Conduct Policy, which "establishes a sliding scale of discipline" including "in-school suspension" and ultimately "expulsion." The ACPS Student Conduct Policy was not attached to the Complaint, nor is it referenced anywhere in the Policy or Regulations. Plaintiffs do not allege that a child has faced discipline under the ACPS Student Conduct Policy for violating the Policy—or that any student has received a "learning opportunity" under the Policy or Regulations.

C. Teacher and Staff Training on the Policy

Teachers and staff underwent mandatory orientation and training to implement the goals of the Policy. The online orientation presented the Policy’s definitions of "racism" and "anti-racism" and showed a video excerpt from an interview with Ibram X. Kendi discussing his book How to Be an Anti-Racist. It also included a video-recorded statement of the ₁₈₁school system’s assistant superintendent explaining the concept of anti-racism. Another online professional development course presented months later featured a session entitled, "Becoming an Anti-Racist School System: A Courageous Conversation," with Glenn Singleton, the author of Courageous Conversations About Race: A Field Guide for Achieving Equity in Schools (2d ed. 2014). Slides featured in a presentation based on Singleton’s book, presented only to teachers and staff, discussed race consciousness, described sociological research about general differences between how white people and people of color communicate, and explained the concept of white privilege. A reference packet for teachers and staff distinguished "passive racism" and "active racism" and provided examples. The packet also included suggestions of things "white people who are sincerely working on their white privilege" might want to avoid saying. Copies of these materials are attached to the Complaint.

D. The Pilot Program and Broader Anti-Racist Curriculum

The...