Jane Doe vs. FCPS

On March 4, America First Legal — a firm lead by former Trump aide Stephen Miller — filed a lawsuit against Fairfax County Public Schools (FCPS) on behalf of an unnamed (now former) student at Oakton High School, claiming that FCPS policies that are inclusive of Transgender and Nonbinary students, such as referring to students by their preferred pronouns, violate the student’s legal rights.

The group has also filed complaints with the Equal Employment Opportunity Commission against companies with policies it calls “woke,” including one filed against The Walt Disney Company that alleges their Diversity, Equity, and Inclusion (DEI) standards discriminate against white American men, Christians, and Jews. On the America First website, several charts — showing an increase in female and non-white employment — are provided as “evidence” of this discrimination.

The complaint against FCPS accuses the school board of “attempting to coerce its students ‘into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs.’” It says this “runs afoul of the Virginia Constitution’s robust protections for religious liberty; it violates the Virginia Religious Freedom Restoration Act; and it violates the right to freedom of speech.”

The complaint continues to say that, though the Commonwealth has an interest in protecting students from harassment and bullying, it also “has an interest in preventing localities from using regulations and threats of enforcement from chilling and stifling speech by students, including on controversial topics.”
The complaint relies heavily on “Vlaming vs. West Point School Board,” a case ruled on by the Virginia Supreme Court last December. In this case the court ruled in favor of Peter Vlaming, a teacher who had been fired from West Point after refusing to use a Trans student’s preferred pronouns, though he had previously agreed to use their preferred name. The (very) conservative court also made sure to refer to “the ongoing public debate regarding gender dysphoria,” indicating that public opinion — not scientific experts — was driving their decision.

For months, FCPS has moved to have this case dismissed, claiming that because the complaining student was never disciplined in any way under the policy — and because she is no longer a student — she has no standing for a legal complaint. Though at first it seemed this argument would prevail, in June the Youngkin administration got involved, with Virginia Attorney General Jason Miyares filing an amicus brief in support of the plaintiffs.

Former FCPS Pride President Robert Rigby discussed the case on a blog post, where he said that “per America First Legal, [FCPS policies] ‘violates their free speech rights under the Virginia Constitution’ despite the fact that the policy does not ask the student named Doe to actually do anything; it does not affect her directly. Because she disagrees with it, Doe says that it ‘burdens her rights to express disagreement with it.’”

Rigby says the case, at its heart, is an attempt to establish the right to a “theocratic veto.” He says that in his brief, Miyares “appears to argue that simple disagreement on religious grounds to a law or policy gives a person the right to ask a court to invalidate the law. He demands a supremacy of religious belief in the elimination of the choices of the elected legislatures rather than a less intrusive accommodation for religious beliefs.”

On June 28, Fairfax County responded to the complaint.

“At its core, this case attempts to use the Supreme Court of Virginia’s decision in ‘Vlaming’… as a preemptive sword against disfavored policies. But ‘Vlaming’ is not a sword to be wielded to strike down general laws that might offend a particular religious belief. It is, instead, a shield requiring accommodation of those religious beliefs. The Amicus Brief misconstrues the School Board’s policies, missapplies ‘Vlaming,’ and otherwise confirms that the Petitioner states no claim for relief under Virginia law.

“First, the School Board policies at issue do not pose any burden on Doe’s alleged, sincerely held religious beliefs and practices, nor compel her speech. The Amicus Brief reaches mightily to stitch together a construction of the School Board’s policies that requires Doe to state or do certain things that offend her religion; however, those ring hollow. And, in doing so, the Amicus Brief reinforces how different this case is from ‘Vlaming.’”

As opposed to “Vlaming,” in which a specific school policy was applied to a specific real-life situation, FCPS says that “here, Petitioner Doe offers theoretical and speculative harms, with nothing concrete to establish a real controversy. Petitioner has not been punished in any application of an existing policy. Petitioner has not alleged that anyone else has been punished for what she claims is a policy compelling students to speak in a certain way on gender identity issues. Nor does Petitioner allege that anyone has threatened her or anyone else with punishment for failing to do so, nor even instructed her or anyone else to do so. Thus, the Petitioner asserts an unreasonable, subjective, and speculative fear of reprisal that cannot allege a burden on her constitutional rights.”

That last part is important, and troubling. Just like a “panic defense,” this is an attempt to open the floodgates for legally bullying and discriminating against LGBTQ+ people — with impunity.