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Hanover County Unit of NAACP v. Hanover County

United States District Court, E.D. Virginia, Richmond Division

October 29, 2019

HANOVER COUNTY, et al., Defendants.



         This 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.


         The 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."[1] That, according to the Complaint is because:

(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 Confederate army;
(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.

         In 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 States.

         In 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.


         Hanover 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.

         A. The Plaintiff's Policymaking Theory of Liability

         To 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)).

         Relatedly, 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 ...

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