The Albemarle County School Board wants an Albemarle County Circuit Court judge to throw out the lawsuit from five families alleging discrimination.
In a response filed Monday, the School Board’s attorneys argued the parents lack standing to sue and failed to show how they were discriminated against and that they were harmed.
“The complaint establishes no more than plaintiff’s general objections to a policy by which they have not been personally affected,” the board’s counsel wrote.
Filed in December, the lawsuit alleges that the board’s anti-racism policy discriminates against students and creates a culture of hostility in schools. The families, whose children attend schools in the western feeder pattern, are represented by Alliance for Defending Freedom, an Arizona-based nonprofit.
The parents suing the Albemarle County district are Carlos and Tatiana Ibañez, Matthew and Marie Mierzejewski, Kemal and Margaret Gokturk, Erin and Trent D. Taliaferro and Melissa Riley. Their children were identified only by initials.
The anti-racism policy at the center of the Albemarle lawsuit was adopted in 2019 as a way to improve academic outcomes for students who have historically lagged behind their more affluent white peers.
In the complaint, the plaintiffs allege that by implementing the policy, the school division has violated their civil rights such as freedom of speech and freedom from religious and viewpoint discrimination. They cite anti-racism lessons piloted at a county middle school, book purchases and training for teachers, among other examples.
The suit is one of several filed across the country that challenge lessons about racism and efforts to advance racial equity in public schools. Legal and education scholars have said the lawsuit is part of a broader national movement that has similarities to the state-sanctioned effort to block integration, known as Massive Resistance.
“Addressing racism is uncontrovertibly a legitimate pedagogical interest,” the board’s counsel wrote, citing the recent dismissal of a similar lawsuit against the Loudoun County School Board.
In a 16-page demurrer, the Richmond-based attorneys from Harman, Claytor, Corrigan and Wellman argued that the plaintiffs didn’t state sufficient facts to support their six claims and challenged the underlying assumptions driving the initial complaint.
A demurrer is similar to a motion to dismiss in federal court.
“Parents have no fundamental constitutional right to dictate the content of the curriculum offered by a public school,” the board’s counsel wrote.
Attorneys David Corrigan, Jeremy Capps, Melissa York and Blaire O’Brien were listed on the filing.
The provisions of the Constitution of Virginia that the plaintiffs allege the School Board has violated are not self-executing, meaning they can’t be enforced without an underlying statute.
Additionally, the state code saying parents have “a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child” does not create a private right of action, according to the demurrer.
A private right of action means that an individual has the right to sue.
“Although the Fourteenth Amendment of the United States Constitution gives parents a fundamental right to control decisions regarding the school in which a child is educated, it does not give parents a fundamental right to dictate the content of the education a child receives once that choice is made,” the attorneys wrote in the filing.
They also pointed to the initial complaint in which one of the plaintiffs said they were able to withdraw their child from the pilot program, which shows they retained control over their children’s education.
“The complaint does not allege that any plaintiff has sustained an actual injury as a result of the policy, its implementation or any threatened enforcement,” the attorneys wrote in one of the filings.
They argued that the complaint does not include an example of a plaintiff being treated differently from another student, receiving different grades or being deprived of an opportunity, according to the filing.
“Instead, plaintiffs point to two incidents in which two plaintiffs felt ‘confused and upset’ and ‘uncomfortable,’ and a third in which a plaintiff was ‘confronted’ by two other students allegedly as a result of his Catholic faith,” the legal team wrote. “These examples, however, are insufficient to establish disparate treatment from ‘similarly circumstanced’ students.”
In addition to the demurrer, the attorneys filed a plea in bar and a motion to include more exhibits as evidence. They also filed a motion to dismiss based on misjoinder, arguing the 17 plaintiffs have “separate and distinct claims that preclude them from joining together in one lawsuit.”