Liberty Counsel sues Fairfax County Public Schools over LGBTQ protections
One of Virginia’s most conservative legal groups is taking on the Commonwealth’s largest school district after the local school board added protections for LGBTQ students and teachers in their policy over the last year.
“Virginia law explicitly prohibits local governing bodies from adding to, or removing protected classes from, the state’s nondiscrimination policy,” wrote Liberty Counsel in a press release along with a link to the suit. “In direct defiance, Fairfax has added new groups to its policy twice now.”
In November of last year Fairfax County’s School board voted to add protections for LGBTQ students and employees into their policy handbook. The push to add protections was followed by Virginia Attorney General Mark Herring reinterpreting state law to allow school districts to add protections without the approval of the General Assembly.
“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 at the time of his announcement. ”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 suit cites Andrea Lafferty, as well as several unnamed minors, as the plaintiffs in the case, and it asks for “declaratory and permanent injunctive relief to prevent the Board from implementing its unlawful expansion of its non-discrimination policy and student code of conduct to include “sexual orientation” and “gender identity” in violation of Dillon’s Rule.”
In the eye’s of Liberty Counsel, and traditionally under the Dillion Rule, localities can only add powers and laws that are specifically conferred on them by the Virginia General Assembly.
However AG Herring’s interpretation of the older State Supreme Court ruling aimed to bypass the GA in this instance.
The request for updating 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 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 from workplace harassment, 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.
The Virginia ACLU has long sided with Fairfax County on this issue, going as far as to say the US Department of Education, as recipients of federal financial aid, must provide these protections.
“In Virginia and elsewhere, opposition to nondiscrimination policies has been based on unfounded fears, stereotypes, and ignorance,” said VA ACLU’s Secular Society Women’s Rights Legal Fellow Gail Deady in a statement sent to GayRVA. ”We commend the Fairfax County School Board for refusing to allow the voices of unreason to dehumanize any of its students, and instead adopting a policy that ensures equal access to education for all children.”
Top image via Fairfax County Public Schools Facebook page
The North Carolina governor cited costs of litigation, noting that his state is also the defendant in a lawsuit filed against him by the Dept. of Justice on similar grounds.September 19, 2016
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