Menders v. Loudoun Cnty. Sch. Bd.

580 F.Supp.3d 316

Patti H. MENDERS, et al., Plaintiffs,

v.LOUDOUN COUNTY SCHOOL BOARD, Defendant.

Civil Action No. 1:21-cv-669 (AJT/TCB)

United States District Court, E.D. Virginia, Alexandria Division.

Filed January 19, 2022

Signed January 22, 2022

Daniel Robert Suhr, Pro Hac Vice, Reilly Walsh Stephens, Pro Hac Vice, Jeffrey Daniel Jennings, Liberty Justice Center, Chicago, IL, for Plaintiffs Patti H. Menders, Scott Mineo, Jane Doe # 2.

Stacy Leann Haney, Andrew Paul Selman, Haney Phinyowattanachip PLLC, Richmond, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

Anthony J. Trenga, United States District Judge

Defendant Loudoun County School Board has moved to dismiss Plaintiffs’ First Amended Complaint. [Doc. No. 37] (the "Motion"). Upon consideration of the Motion, the memoranda submitted in support thereof and in opposition thereto, the arguments of counsel at the hearing held on November 10, 2021, and for the reasons that follow, the Motion is GRANTED and this action is DISMISSED.

I. BACKGROUND

Unless otherwise noted, the following facts are taken from the Amended Complaint, [Doc. No. 30] ("Am. Compl."), and the documents referenced therein integral to the Amended Complaint. See Witthohn v. Fed. Ins. Co. , 164 Fed. App'x. 395, 396 (4th Cir. 2006) ("[A] court may consider official public records, documents central to plaintiff's claim, and documents sufficiently referred to in the complaint without converting the motion to dismiss into one for summary judgment so long as the authenticity of these documents is not disputed.") (alterations omitted).

In June 2019 the Loudoun County Public Schools ("LCPS") commissioned an outside consultant, The Equity Collaborative, which issued a Report titled Systemic Equity Assessment: A Picture of Racial Equity Challenges and Opportunities in the Loudon County School System, attached to the Amended Complaint as Exhibit A.

On June 23, 2020, LCPS published its "Action Plan to Combat Systemic Racism" ("the Action Plan"), attached to the Amended Complaint as Exhibit B. Id. ¶ 24. The Action Plan consists of sixteen "action items," the fifteenth of which, the only one at issue in this case, is that "LCPS will collect qualitative data regarding racial incidents to amplify student voices." Id. , Ex. B at 18. Toward that end, the "LCPS administration will support the concept of LCPS staff amplifying student voices regarding racial incidents they have experienced in school" and "create an electronic form for LCPS students to anonymously share their stories regarding issues of racism, injustice and inequity." Id. In addition, "Student Equity Ambassadors" ("SEAs") will be selected and "[s]tories and experiences will be reviewed and shared by the Supervisor of Equity and the Student Equity Ambassadors during regularly occurring student Share, Speak-up, Speak-out meetings." Am. Compl. ¶ 29. As explained by the LCSB in court, these Share, Speak-up, Speak-out meetings are intended to occur multiple times during the year and are open only to students who are SEAs.

A. The Bias Reporting Form

The online electronic form used to report bias incidents is titled the Bias Reporting Form. Am. Compl., Ex. H. The Form states that "[s]tories of bias shared through this platform will be used in an anonymous manner for the Share, Speak Up, Speakout sessions with Student Equity Ambassadors." Id. A "bias incident," as stated in the Form, is "an act of discrimination, harassment, and intimidation directed against any person or group that appears to be intentional and motivated by prejudice or bias." Id. As stated in the Form, "[s]uch incidents are usually associated with negative feelings and beliefs about another's race, ethnicity, national origin, religion, gender, gender identity, sexual orientation, age, social class, political affiliation, or disability." Id. The Form further states that "[t]his process provides information to LCPS leadership (specifically the Equity Office) that will be used for the Share, Speak-up, Speak-out sessions, as well as inform next steps for professional learning and support for school staff." Id. Finally, the Form declares that "LCPS is committed to providing and ensuring a respectful, safe, supportive, culturally-responsive learning space for every LCPS student." Id.

The Form requests the name of the school, the date of the incident and the location of the incident. Id. Under "Type of Bias Incident," the form requires that the reporting student check the box of all the listed categories of bias that apply. Listed categories are "Harassment or Intimidation," "Racial Slur," "Offensive Language, Teasing or Taunting Language/Verbal Exchange," "Exclusion or victim of lack of inclusivity," "Gender Identity and Expression," "Ability Status," "Religious Practices," and "Sexual Orientation." Id. It then asks for a description of "what happened," explaining that "[s]haring details in the space will contribute to topics used to address biases during the Share, Speak Up, Speak-out sessions with the Student Equity Ambassadors from every middle and high school." Id.

The Form ends with the section "Official Incident Reporting," which is the focus of Plaintiffs’ constitutional challenge to the use of the Form. Id. That section states that "[t]he primary use of this Form is for the Office of Equity to capture stories and incidents of bias in an anonymous manner. Would you like this particular incident investigated by the administrators at your school?" Id. The following responses are listed: (a) "No, I do not want to report this to my school."; (b) "No, I have already reported this to my school."; and (c) "Yes, if yes, please provide your name below." Id.

A submitted Form goes directly to the Equity Office and the information on the Form is used by the Equity Office to generate discussion points for the "Share, Speak-up, Speak-out" meetings held with the SEAs. Am. Compl. ¶ 47. LCPS will only investigate reported "bias incidents" if the person who submits the Form provides his or her name and indicates on the Form that he or she would like the school administrators to investigate the particular incident reported. Id. ¶ 48. However, according to the slide deck on the Action Plan to Combat Racism, the Reporting System is separate from the LCPS disciplinary system.

B. The SEA Selection Process

SEAs are selected based on nominations by school staff, administrators, fellow students, or themselves and, from the pool of nominated students, each middle and high school principal selects two or three students to serve as a SEA for one school year term, with new ones selected each year. Am. Compl., Ex. D (Student Equity Ambassador Information Packet) at 2. If more than three students show interest from any particular school, the selection process becomes a competitive one, without regard to race, based on "student attributes," which are listed as follows:

a. Honest and able to speak the truth, while also listening;

b. Have "a passion for social justice" and are willing to serve;

c. Are sympathetic and sensitive;

d. Have the respect and credibility of their peers; and

e. Will be empowered by this opportunity and have the potential for leadership.

Id. at 3. Selected students will be expected to "be responsible for amplifying the voice of Students of Color by engaging in discussions about student stories/experiences regarding issues of racism, injustice and inequity" and "serve as equity ambassadors for their school." Id. Although an initial version of the SEA program stated that "[t]his opportunity is open to all Students of Color," id. at 2, under the SEA program as adopted, all students may be considered for selection as SEAs. See Am. Compl. at ¶ 41.

Plaintiffs are either parents of current LCPS students or parents of students who had enrolled their children elsewhere when the Amended Complaint was filed on August 30, 2021, but who intended at that time to enroll them in LCPS in the next school year and who are or will be subject to the Defendant's policies challenged in this case. The Plaintiffs’ children hold views about important public issues that they believe conflict with LCPS’ definition of social justice. Id. ¶ 60. Ostensibly at the core of that belief is that Plaintiffs and their children are opposed to the ideology known as Critical Race Theory ("CRT"), which they allege teaches that white people are evil or oppressors and that our nation's institutions are inherently racist. Id. ¶ 61. Instead, they believe that everyone is equal and that we should strive for a color blind society. Plaintiffs assert they have taught their children to treat everyone with respect and dignity regardless of their race. Id. Plaintiffs’ children wish to speak out on topics such as CRT, race, and gender identity, but their

views on these subjects are often not shared by other residents or young people Loudoun County ... [and] when others have shared views similar to the Plaintiffs and their children on CRT, race, gender identify [sic], and other controversial political issues, that speech has prompted vitriolic, threatening, and persecutorial responses from others in Loudoun County, including within the LCPS community.

Id. ¶¶ 62-63. As a result, Plaintiffs "are concerned that if [their child] shares [his/her] views ... on CRT, race, human sexuality, and other controversial political issues, they will be reported and investigated for ‘bias incidents.’ " Id. ¶ 65. They are also concerned that such a report, investigation, and public disclosure could negatively impact their children's standing in the school community or ruin their college prospects. Id. Based on these concerns, they believe that the Reporting System violates the free speech rights of their children.

Plaintiffs do not allege explicitly whether their children have applied for or intend to apply for selection as an SEA or have an interest in becoming an SEA. However, Plaintiffs allege that their children would not qualify for the SEA program as originally conceived or...