BREAKING: AG Herring says Virginia School Boards can protect LGBTQ students
An opinion released by Virginia Attorney General Mark Herring aims to give school boards the ability to protect LGBTQ students and employees, a change from a 2002 opinion which said otherwise.
Virginia is a ‘Dillon Rule state’ which means localities, including school boards, cannot create polices or gain powers not given to them by the state’s General Assembly.
In 2002, then-AG Republican Jerry Kilgore issued an opinion stating school boards had no right to add “sexual orientation” to the schools non-discrimination policy as the power was not given to them by the state’s elected officals.
However, an opinion released yesterday by AG Herring reverses that policy, and now states that a school has every right to do so.
Part of Herring’s opinion cites a Supreme Court of Virginia ruling which states “schools boards’ supervisory power necessarily includes derivative powers to regulate “the safety and welfare of students, “to supervise personnel,” and to apply “local policies, rules, and regulations adopted for the day-to-day management of a teaching staff.”
“The Supreme Court of Virginia has been clear that our constitution allows school boards to regulate for the ‘safety and welfare’ of children,” said Herring. ”And the General Assembly has been clear that school boards shall ‘provide that public education be conducted in an atmosphere free of disruption and threat to persons or property and supportive of individual rights.”
“Every Virginian has the right to live, learn, and work without fear of discrimination,” said Herring in a statement released along with the opinion. “That’s a Virginia value, and one that we must guard even more carefully when it comes to our children.”
The request for clarifying the opinion came from Sen. Adam Ebbin, Virginia’s only openly gay Senator. Ebbin said Fairfax County’s school board had recently updated their policy to include sexual orientation and gender identity, and he hoped an updated opinion from the AG’s office would spur other counties around the state to do the same.
“I thought this would give some encouragement to other school districts around the state that would help staff and students, and reduce incidents of bullying,” said Ebbin.
LGBTQ public school employees are not currently protected, even by Gov. Terry McAuliffe’s Executive order 1 which added sexual orientation and gender identity to the state’s workplace protection policy in 2014.
Because they are employed by their local school system, teachers are not protected as state employees.
This new opinion allows school districts to pass these protections.
Attempted to pass such protections into law through the General Assembly have continued to stall – with 2015′s SB785 dying in a house committee last month.
There’s no word yet as to how this will affect transgender students like 10th grader Gavin Grimm, who was at the center of a controversy involving the Gloucester County School Board which enacted a policy which requires students to use bathrooms which align with their biological gender.
Opposition to Herring’s opinion is already present; Chris Freund, spokesman for the conservative Family Foundation of Virginia, told the Washington Post that the AG had overstepped his bounds.
“The attorney general has once again placed his desperate desire to be the Democrat nominee for governor over the longstanding policy and law of Virginia,” said Freund. ”In doing so he has put at risk the welfare of students who have deeply held religious beliefs about human sexuality that a teacher or administrator could deem ‘discriminatory’ and single out for punishment.”
Virginia LGBTQ advocates have praised Herring’s move.
“This is great news for Virginia’s school boards as well as gay and transgender public school employees,” said James Parrish, executive director of Equality Virginia, the state’s largest LGBTQ advocacy group. “School boards across the commonwealth now have the freedom to create and implement inclusive policies that align with the non-discrimination policies already in place at the majority of Virginia’s leading employers. ”
EV said less than 2% of Virginia’s public school students attended a school with such a policy in 2012, but today, more than 20% of Virginia’s public school students are protected.
Top image – AG Herring speaking at Equality Virginia’s 2015 Lobby day
Editors note: this story originally incorrectly listed teachers as protected by Gov. McAuliffe’s EO 1, however school employees were not protected by the order. The text has been edited to correct this issue.
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