ANDREA LAFFERTY, ET AL.
SCHOOL BOARD OF FAIRFAX COUNTY
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.
F. MILLETTE, JR. SENIOR JUSTICE
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.
FACTS AND PROCEEDINGS
case was decided on a motion to dismiss for lack of standing,
the relevant facts are the allegations as pled in the
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
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.
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
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
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
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."
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."
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 ...