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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Three, count 'em, Three Amici Briefs, and a plurality decision, in this Highly Charged Case which is Bound for the Supreme Court of Virginia (and maybe the US Supreme Court).

School Districts have become the latest ideological battleground between America's competing factions on social issues. Carlos Ibanez, et al. v. Albemarle County School Board, et al. (February 20, 2024) is Virginia's most recent entry into the fray. The nature of the suit is a challenge to Albemarle County Schools new anti-racial discrimination policy and a challenge by a group of parents (for themselves and their children, and with support from the Alliance Defending Freedom) which asserts that the policy is actually discriminatory by treating minorities differently. To put it bluntly, this is a case about a Diversity, Equality, and Inclusion (DEI) policy and whether it is too "woke". The circuit court found that the plaintiffs lacked standing or otherwise had not made out a case and dismissed.

The resulting plurality decision with Judge Lorish, Judge Beales and (now retired) Judge Humphreys, each writing separately, is already on appeal to the Supreme Court of Virginia, and could potentially go on from there the the US Supreme Court. The lead opinion, by Judge Lorish, is 44 pages, Judge Humphreys takes just seven pages to state his partial disagreement with lead opinion, and Judge Beales takes 49 pages to set out his mostly dissenting opinion. Despite Judges Humphreys and Beales each having issues with the lead opinion, however, their differences do not allow for a majority result on any specific issue, thus the judgment dismissing the challenge was affirmed.

The parents had three amici supporting them. Melissa Moschella, Ph.D, of The Heritage Foundation, Ian Rowe, of the American Enterprise Institute, and The Family Foundation of Virginia, which is a legal action arm of Focus on the Family in Virginia. All of these groups may be fairly characterized as being on the conservative end of the American political spectrum. The School Board did not have an amicus -- perhaps the Board did not seek out any supporting briefs.

I will be frank in saying that while I usually do not shy away from addressing controversial subjects, I am reticent to say more about this case than that I agree with Judge Lorish's parting observation that "whether [the plaintiffs' disagreement with the Board ] is or is not a legitimate concern, it is a concern about policy. And concerns about policy should be made to policymakers, not judges.” This is a direct quote from Menders v. Loudoun County

School Board, 65 F.4th 157 (4th Cir. 2023). Unlike this case, the 4th Circuit allowed some, but not all, of the challenges to a similar policy in Loudoun County to proceed. Menders is being brought by Liberty Justice Center (not to be confused with Liberty Counsel).

This case is not about whether the anti-discrimination policy of the School Board is actually discriminatory -- it's about the proper forum for debating that issue. It seems inevitable that the Supreme Court of Virginia will grant review of this case -- and this or another case like it will eventually reach the US Supreme Court. I am content to wait for those decisions.

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