Theocratic Veto versus School Policy
This is part 2 of coverage on Jane Doe v. Fairfax County School Board (FCSB) (CL-2024-0003171), a lawsuit asserting that religious freedom is more important than all other freedoms and can permit the violation of policies of a school board and rights of other students.
Although hearings will continue before this goes to trial, Robert Rigby and Vanessa Hall attended the July 25, 2024 demurrer hearing to hear the judge’s decision after the lawyers pled their cases. Please see Part 1, A Controversial Legal Attack on Students and Schools for more details about the case, filings, law firms involved, and constitutional implications of the case.
Jane Doe Claims Sex and Religious Discrimination
Since the case was filed on March 4, 2024, there has been significant activity on this case, including demurrer (i.e., dismissal) hearings, and an amicus brief in support of the plaintiff filed by the Virginia Attorney General, Jason Miyares. Of course, significant activity means higher outside legal fees for FCPS. FCPS has often been assailed for their high outside legal costs by the same people who are contributing to those high legal costs.
In this case, America First Legal (through Jane Doe) has asked for an immediate injunction to stop FCPS from using: 1) portions of the Student Rights and Responsibilities (SR&R) Guide, the behavior and discipline manual for families, and 2) FCPS regulation 2603 which covers Transgender and Gender-Expansive students in school.
FCPS Asked that the Case be Dismissed
On July 25th, court began with the FCSB lawyer, Noah Sullivan of Gentry Locke, summarizing facts of the case for Judge Brett A. Kassabian, followed by a response from Andrew Block of America First. Then the judge grew impatient and asked him to get to the point of whether or not he was objecting. The judge later cut off Mr. Block’s comments to say that he felt that the case was “ripe for a decision today on the demurrers.” In other words, the judge had heard enough and wanted to discuss the facts and law related to dismissal of the case.
Mr. Sullivan, the FCSB lawyer, opened his case describing how counts 5 and 6 (religious and sex discrimination), of the Jane Doe lawsuit didn’t “even begin to get out of the gate for constitutional discrimination.” He said it was plain that there was nothing discriminatory in the FCPS policy or its implementation, because there were alternative accommodations available to all students. He also stated that the petitioner’s “assumed intent” of the SR&R guide was not enough for actual discrimination. In other words, Jane Doe did not suffer discrimination or discipline, she just feared that she would.
Mr. Sullivan proceeded to make a good case against Plaintiff’s counts 1-4 by sharing a binder of the actual SR&R guide and teacher policies while noting that regarding counts 1-3, the policy American First Legal attacked “does not exist,” nor are names and pronouns required anywhere in the policy. He also highlighted that claims regarding Count 4 said that the policy was “unconstitutionally vague” but student non-harassment policies are used across the state and are codified in the Virginia Human Rights Act, so why would “constitutional vagueness” apply here?
Mr. Sullivan asked some important legal questions regarding the facts in the America First Legal case, including:
Why was Jane Doe so afraid that she might be punished without stating what she actually wanted to convey?
“How chilled is her speech, if she won’t state what speech she wants to make?”
Jane Doe was never disciplined, so what was her claim?
Finally, the FCSB lawyer walked through all of the applicable SR&R language outlining the rights of students in schools. Mr. Sullivan noted that the only real discipline described in the SR&R guide was discipline for discriminatory harassment or slurs before adding, ”Hopefully, the petitioner does not have a religious belief to use slurs.”
”Hopefully, the petitioner does not have a religious belief to use slurs.”
American First Legal Responds
For America First Legal’s response, Ian Prior began talking about Policy 2603.2. This seemed weird since 2603 is a school policy that applies to employee conduct and record-keeping, not student conduct and discipline. Nevertheless, Mr. Prior focused on 2603.2 which states, “Students who identify as gender-expansive or transgender should be called by their chosen name and pronouns.” Odder still was that Mr. Prior ignored the third sentence of the purpose of Policy 2603 that, “ Any student who has a need or desire for increased privacy, regardless of the underlying reason, shall be provided with reasonable, non-stigmatizing accommodations.”
Mr. Prior then focused on Policy 2601, which outlines “Acts for Which Students May Be Disciplined, Disciplinary Procedures, and Interventions” in violation of the SR&R. In his words, he said that a student could be disciplined by merely misgendering another student; however, in truth, Policy 2601 clearly states that discipline is related to “Using slurs based upon the actual or perceived gender identity (which includes, but is not limited to, malicious deadnaming or malicious misgendering).”
In fact, FCPS Policy 2601 offers disciplinary action associated with using slurs expansively (see below) associated with identity characteristics, including “actual or perceived race, ethnicity, color, national origin, citizenship/immigration status, weight, gender, gender identity, gender expression, sexual orientation, or disability.”
All in all, Mr. Prior’s speech often seemed to be more about his personal views than about the facts of the case. For example, why did he talk about the current use of slurs versus “traditional slurs”? He claimed that “everyday words” are now considered slurs, as if what is considered a slur isn’t constantly changing.
Inside the courtroom, this particular argument felt a little like a dog whistle. Historical slurs about and harassment of female, non-Christian, non-heterosexual, and non-white people used “everyday words” of the time. Those historical “everyday words” that were used against people based on race and sexuality are now (thankfully) considered unacceptable. It makes one wonder, in the vein of Mr. Sullivan’s earlier question: what does Mr. Prior want to say that is now considered a slur outside of “traditional slurs”?
Mr. Prior also undercut his arguments by the use of ridiculous strawman arguments like saying that kids are “suddenly changing pronouns” or using inaccurate terms like “biological female” when the medically accurate term is “gender assigned at birth.” He also used quite inflammatory language when he claimed that the plaintiff, Jane Doe, would be forced “to wear the scarlet letter of a religious bigot” if she is unable to respect the pronouns of other students. Hyperbolic to say the least.
In a brief response, FCSB’s lawyer noted that Mr. Prior was trying to apply employee policies to students; however, to a casual observer, it was hard to tell whether Prior was conflating employee policies to policies that governed student behavior on purpose or through inattention to detail.
The Court’s Decision
Ultimately, the court allowed the case to continue to trial on four of six counts, all four of which relate to Jane Doe’s religious right to misgender other students based on American First Legal’s argument that FCPS regulations required Jane Doe to use a student’s chosen pronoun. This is in spite of facts put forward by FCPS that the regulation does NOT require any speech: rather, that the policy enjoins students from “maliciously” harassing other students with repeated speech aimed at them that intentionally inflicts harm.
The court dismissed the two counts of the case related to restrooms (counts 5 and 6) allowing American First Legal the right to amend their case within three weeks. If they are disappointed again, of course American First Legal can appeal to the Virginia Supreme Court.
The judge asserted that a trial would be the proper place to decide many of the other factors. He said this demurrer decision is not about FCSB policy being reasonably or narrowly tailored, or whether the plaintiff is still in school or has graduated. Under a recent Virginia Supreme Court ruling (Vlaming v. West Point, Virg., School Board) the judge felt compelled to allow the idea that religion really is elevated above other rights to go forward despite the knowledge that the facts of this case could not be more different than Vlaming.
Although disappointed that the court failed to dismiss the whole case, a FCPS spokesman told WJLA, “Once the court considers all the issues, FCPS is confident that the court will affirm our policies, as they protect all students’ rights. We will continue to vigorously defend our policies that support all our students and staff at FCPS.”
Oddly, none of those who reported on this case attended the case, so it is a wonder from where they got their information? Who described exactly what happened? It seems obvious who they talked to (i.e., American First Legal lawyers) based on the slant of their pieces in the Daily Signal, Washington Examiner, and on WJLA. The Fairfax GOP has expressed delight that the regulations about trans students may be overturned. They talk about bathrooms, but the counts that relate to bathrooms were dismissed.
Despite some assertions on social media, this was not a “huge win” for America First Legal. The judge dismissed two counts and made a clear statement that he could not look beyond the factual statements of the case, which meant that he was loath to dismiss the case, but that did not mean that the case had merit at trial.
Why is America First Legal Pursuing this Case?
Likely, America First Legal are pursuing this in Virginia courts under the Virginia legal code and Constitution, because they do not think it would fly under the U.S. Constitution. Their claim is that the provisions in Virginia around religion are different from those under the U.S. Constitution in two ways.
First, in Virginia, per Mr. Prior, one person’s “deeply held religious belief” overrides another person’s “deeply held religious belief.” What a doctrine?! Who will decide what beliefs are religious and which are secular? This is precisely why the U.S. Supreme Court hasn’t allowed this doctrine. How are courts going to judge which religions are valid?
Mr. Prior’s second argument is that in Virginia there is NOT a provision against the “establishment of a religion.” He seems to WANT the courts to decide whose beliefs are valid religiously and whose are not. This should alarm everyone who is not a member of Prior’s own congregation.
One thing that FCPS may do is to see whether they can have the case moved to Federal Courts on the basis that these are federal questions. For example, if a Virginia court result favors American First Legal, it would conflict with Federal court rulings that allow LGBTQIA+ people to live fully in the US (see both Bostock v. Clayton County and Grimm v. Gloucester County School Board).
Who is America First Legal?
After reading this case, one may wonder who is America First Legal? America First Legal has claimed to be the antidote to the ACLU, and thus far has sued dozens of “woke” corporations and taken actions against the LGBTQIA community, multiple school districts, voting rights, and other civil rights. Many organizations beloved by Americans have been sued by America First Legal, including: Disney, Nike, Shake Shack, Tyson Foods, Hasbro, Mattel, IBM, Macy’s, Major League Baseball, airlines, candy companies, beer companies, and cereal companies. Frequently, they sue on the grounds of racism against white men.
America First Legal is known as a “dark money” group made up of former Trump advisors and appointees. In their first year of operation, America First Legal raised more than $6.3 million and in 2022, their revenue was over $44 million– which is being used to push a "radical agenda." A significant chunk of this (85%) was spent on divisive ads in advance of the 2022 mid-terms.
Their past tax forms, compensation, and donations can be found on the Propublica website. One can’t help but question why they are considered a non-profit 501(c)(3) considering the obviously political nature of their activities.
America First Legal and Project 2025
America First Legal is listed along with Moms for Liberty and a hundred other “conservative” groups on the advisory board for Project 2025, which is the Heritage Foundation 900+ page plan to “overhaul” the federal government.
As the Intercept notes, “America First Legal staff were deeply involved in writing and editing the Project 2025 playbook. Its vice president and general counsel, Gene Hamilton, drafted an entire chapter about the Justice Department, which proposes launching a “campaign” to criminalize mailing abortion pills. “ Nevertheless, America First Legal President Stephen Miller claims “zero involvement” in Project 2025 despite appearing in a promotional video.
Project 2025 aims to “gut protections against discrimination based on sexual orientation and gender identity.” America First Legal’s Jane Doe case is in line with Project 2025 efforts to outlaw transgender people.
The Jane Doe case is to be Continued
Don’t expect a resolution to this case anytime soon.
First, there are three legal bases on which the FCSB will continue to challenge this case:
Standing: Does the petitioner (i.e., Jane Doe) have standing to sue? Are there any damages actually being claimed?
Mootness: Both sides acknowledge to the court that the student has graduated. FCPS therefore will argue that there is no legal basis to pursue injunctive or declaratory relief, because she is not and will not be subject to any FCPS policies now or in the future (once you graduate you can’t re-enroll as a K-12 student).
Sovereign immunity: FCPS argued and lost on the dismissal of the claim for nominal damages (the plaintiff was asking for just a few dollars, in an effort to make the case continue after her graduation). They may or may not appeal.
Additionally, as the petitioner is now 18, FCSB has asked that they be identified by name.
Finally, this case is intended as much to raise America First Legal's profile as it is to keep FCPS in the news. This will be another expensive legal attack on our schools that distracts from the education of our students while it sucks funds from our public schools, teacher's salaries, and student opportunities.
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