United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on HANOVER COUNTY'S MOTION TO
DISMISS (ECF No. 23) this action as to it pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief can be granted. Having considered the motion and the
supporting, opposing and reply memoranda, it is hereby
ORDERED that HANOVER COUNTY'S MOTION TO DISMISS (ECF No.
23) will be granted.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (the
"Complaint") (ECF No. 1) names as defendants
Hanover County (the "County") and the County School
Board of Hanover County (the "School Board"). The
Complaint asserts three claims. In Claim 1, it is alleged
that the "Defendants are compelling Plaintiffs'
members to express a view with which they disagree, namely
that slavery and other values of the Confederacy should be
endorsed and glorified." That, according to the Complaint
(1) the School Board named the Lee-Davis High School
("Lee Davis") after Robert E. Lee, the commander of
the army of the Confederacy, and the Confederacy's
president, Jefferson Davis, and the Stonewall Jackson Middle
School ("Stonewall Jackson") after a general in the
(2) the School Board has refused to change those names when
petitioned to do so; and
(3) students are required to wear athletic uniforms bearing
the names 'Confederates' (Lee-Davis) and
'Rebels' (Stonewall Jackson) and are exposed to
school mascots of the same names who are dressed in the
uniforms of the Confederate Army.
Claim 2, it is alleged that "the Defendants have
maintained the names of the schools in honor of Confederate
generals, adopted and maintained mascots, team names, and
other symbols that venerate the Confederacy, and celebrates
those who fought to preserve the enslavement of African
Americans." (ECF No. 1 ¶ 129.) All of that is
alleged to create "a school environment that denies
African American students, including members of the NAACP, an
equal opportunity to an education [in the way that is later
described]." (Id. ¶ 136.) This, in turn,
is an alleged violation of the Equal Protection Clause of the
Fourteenth Amendment to the Constitution of the United
Claim 3, it is alleged that the "Defendants"
violated the Equal Educational Opportunities Act, 20 U.S.C.
§§ 1701-1758. However, by Stipulation entered on
October 10, 2019 (ECF No. 34), the Plaintiff voluntarily
dismissed Claim 3 against the County.
County seeks dismissal of Claims 1 and 2 because it is not a
proper party to this action for the reason that, under
Virginia law, the School Board, and not the County, is the
final policymaker for Hanover County public schools.
Consequently, the County contends that Claims 1 and 2
(alleged violations of the First and Fourteenth Amendment
claims, respectively) against the County fail as a matter of
law. In addition, the County alleges that the Complaint is
legally insufficient because it makes no substantive factual
allegations against the County that would support the First
Amendment claim in Claim 1 and the Fourteenth Amendment in
Claim 2. Each ground for dismissal will be discussed in turn.
The Plaintiff's Policymaking Theory of Liability
state a legally viable claim against a local government
entity, a plaintiff must plead: (1) existence of an official
policy or custom that offends the Constitution and the
plaintiff's rights; (2) that the policy or custom is
fairly attributable to the municipality; and (3) that the
policy or custom proximately caused the deprivation of a
federal constitutional or statutory right. Jordan v.
Jackson, 15 F.3d 333, 338-40 (4th Cir. 1994); see
also Kirby v. City of Elizabeth City, 388 F.3d 440, 451
(4th Cir. 2004); Edwards v. City of Goldsboro, 178
F.3d 231, 244 (4th Cir. 1999). The official policy or custom
facet of the test can be satisfied by pleading (and proving)
that the municipality violated the plaintiff's
federally-protected rights "(1) through an express
policy, such as a written ordinance or regulation; (2)
through the decisions of a person with final policymaking
authority; (3) through an omission, such as a failure to
properly train officers, that manifests deliberate
indifference to the rights of citizens; or (4) through a
practice that is so persistent and widespread as to
constitute a custom or usage with the force of law."
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003)
(quoting Carter v. Morris, 164 F.3d 215, 217 (4th
Cir. 1999)) (internal quotation marks and alteration
omitted); Z.G. ex rel. C.G. v. Pamlico Cty. Pub. Sch. Bd.
of Educ, 744 Fed.Appx. 769, 780 (4th Cir. 2018) (quoting
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003)).
although "municipal 'policy' is found most
obviously in municipal ordinances, regulations and the like
which directly command or authorize constitutional
violations, it may also be found in formal or informal ad
hoc 'policy' choices or decisions of municipal
officials authorized to make and implement municipal
policy." Spell v. McDaniel, 824 F.2d 1380,
1385-86 (4th Cir. 1987) (internal citations omitted).
Additionally, the practices for which municipalities may be
found liable include custom and usage, which are the
"persistent and widespread practice of municipal
officials which[, ] although not authorized by written law,
are so permanent and well-settled as to have the force of
law." Id. at 1386 (internal quotation marks and
alterations omitted). These customs and usages "may be
attributed to a municipality when the duration and ...