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Lafferty v. School Board of Fairfax County

Supreme Court of Virginia

April 13, 2017

ANDREA LAFFERTY, ET AL.
v.
SCHOOL BOARD OF FAIRFAX COUNTY

         FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Brett A. Kassabian, Judge

          PRESENT: Lemons, C.J., Mims, Powell, McClanahan, Kelsey, and McCullough, JJ., and Millette, S.J.

          OPINION

          LEROY F. MILLETTE, JR. SENIOR JUSTICE

         This appeal concerns standing under the Declaratory Judgment Act, Code §§ 8.01-184 through -191. We address whether a student at a public high school, by and through his parents as next friends, has standing to sue the school board based on his alleged distress over potential repercussions from the school board's expansion of its anti-discrimination and anti-harassment policy. We also consider whether his parents, individually, and a third resident of the county have taxpayer standing. For the reasons stated herein, we conclude that the trial court did not err in finding that none of the plaintiffs have standing.

         I. FACTS AND PROCEEDINGS

         As this case was decided on a motion to dismiss for lack of standing, the relevant facts are the allegations as pled in the complaint.

         This lawsuit was initiated by Andrea Lafferty, John and Jane Doe in their individual capacities, and their minor son, Jack Doe, by and through his parents as next friends. The action sought a declaratory judgment and preliminary and permanent injunctive relief against the Fairfax County School Board ("the Board") for the allegedly unlawful expansion of its non-discrimination and student code of conduct policies.

         On November 6, 2014, the Board voted to add the category of "sexual orientation" to its non-discrimination policy. On May 7, 2015, the Board also voted to add the category of "gender identity" to its non-discrimination policy, and to add "gender identity" and "gender expression" discrimination to the list of offenses in the student handbook for which students can be suspended from school.

         Plaintiff Andrea Lafferty is a citizen, taxpayer, and resident of Fairfax County. She is president of the Traditional Values Coalition and "has researched and analyzed Defendant's policymaking" and has "provided to Defendant board members the results of her research, including the deleterious consequences of acting without legislative authorization."

         Plaintiff Jack Doe is a minor and is a high school student in the Fairfax County Public Schools, who appears by and through his parents as next friends. Plaintiffs John and Jane Doe are Jack's parents, citizens, taxpayers, and residents of Fairfax County.

         In describing the "Nature of the Action, " plaintiffs ask "this Court to halt Defendant's attempt to introduce a new, undefined, experimental classification into the non-discrimination policy and student handbook" because "Defendant's actions were void ab initio under Virginia Code §§ 1-248, 15.2-965 and under Dillon's Rule" and "Defendant wholly lacks authority to add those classes to its non-discrimination policy and . . . its student handbook." Plaintiffs requested a declaratory judgment declaring the Board's actions ultra vires and void ab initio, and requested injunctive relief.

         The complaint alleges Jack Doe is: (1) "distressed" because he "has no idea what words or conduct might be interpreted as discriminating on the basis of 'gender identity, ' and therefore does not know what speech or conduct might subject him to discipline"; (2) "distressed" because "he understands that the decision will mean that the restrooms, locker rooms and other intimate spaces . . . will now be open to students who might have the physical features of one sex but are permitted to use the bathroom of the opposite sex which the student 'identifies' as, whatever that means"; (3) unsure of whether he can question someone appearing to be a girl in his locker room or bathroom; (4) "nervous about having to think about every statement or action and its potential sexual connotations, " which causes him "significant distress to the point that it adversely affects his ability to participate in and benefit from the educational program"; (5) "terrified of the thought of having to share intimate spaces with students who have the physical features of a girl, seeing such conduct as an invasion of privacy"; (6) unable to "regard school as a safe place where he can learn . . . without fear of harassment, being charged with harassment, and having his speech and conduct chilled by the fear of reprisals or of discipline for unknowingly violating the ambiguous code of conduct"; and (7) inhibited in his "ability to fully and freely participate in and benefit from the school's educational program."

         The complaint states that an actual controversy exists "in that Plaintiffs assert that Defendant's actions . . . [are] ultra vires and void ab initio while Defendant asserts that it has the authority to expand its non-discrimination policy, " and "in that Plaintiffs assert that . . . subjecting students to discipline without proper notice of the conduct for which they can be suspended exceeds Defendant's authority under Virginia law, while Defendant asserts that it can consistent with Virginia law insert the terms 'gender identity' and 'gender expression' into the student handbook and subject students to discipline."

         The Board filed a "Motion to Dismiss and Demurrer, " arguing that the only statute that authorizes a court to determine whether a school board's actions comply with Virginia law is Code § 22.1-87 (permitting parties aggrieved by actions of the school board to seek review in a circuit court within 30 days), and that plaintiffs lack standing under that statute. As the Declaratory ...


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