Five western district families have filed a lawsuit against Albemarle County Public Schools (ACPS), Superintendent Matt Haas, and Assistant Superintendent Bernard Hairston in the county’s Circuit Court, alleging that the school division’s new anti-racism curriculum employs racially discriminatory policies and practices against students. Represented by Alliance Defending Freedom (ADF), a nationally active legal firm that specializes in cases involving freedom of speech, religious rights, and parental rights, the group of plaintiffs is asking the court to prohibit ACPS from implementing portions of its “Courageous Conversations” set of lessons.
“The problem is that this curriculum violates students’ civil rights by treating them differently based on race,” said ADF senior counsel and vice president of legal strategy Ryan Bangert. “When you look at the Virginia constitution, it’s very clear that every student deserves to be treated equally under the law regardless of race, ethnicity, or religion. A corollary to that is that public schools can’t attack or demean students based on those qualities and characteristics.”
The five sets of plaintiff families in the case all have children who attended Henley Middle School during the spring of 2021 when an anti-racism curriculum was introduced toward the end of the school year as students briefly went back to school in person. The adult plaintiffs are Carlos and Tatiana Ibañez, Matthew and Marie Mierzejewski, Kemal and Margaret Gokturk, Erin and Trent Taliaferro, and Melissa Riley. The families, several of which include immigrant and biracial members, assert that “schools should not teach children to focus on the race of their peers… to judge or define others,” according to the complaint filed on December 22. (The plaintiffs have declined to comment publicly on the suit at this time.)
“I have to credit the parents who bravely stepped forward to raise questions in public,” said Bangert, who noted that ADF is representing the plaintiffs pro bono (at no charge). “They reached out and brought it to our attention, and doing so is not easy. The [anti-racism] curriculum that’s in place in Albemarle has gone further down the road of implementation than many places we’ve seen … and now is in the process of being more deeply implemented throughout the school’s curriculum. Kids simply can’t avoid it—they can’t opt out.”
The Issues
Henley’s anti-racism lesson program explores issues of racial awareness and prejudice in society and encourages students to become “anti-racists” by proactively working to eliminate racist systems and structures that harm and exploit minority groups. As a way of defining racism, the lessons teach that the “dominant culture” in the U.S. belongs to “people in society who hold the most power,” including those who are “white, middle class, Christian, and cisgender,” and labels those groups as dominators—and thus inherently part of racist systems—while the other groups are subordinate.
The parent plaintiffs object to the labeling of their children based on immutable characteristics such as race and gender. “[This teaching] damages every student, regardless of race, because it locks them into these categories purely based on race,” said Bangert. The lawsuit contends that “discrimination based on race is morally wrong,” and that “the curriculum creates hostility based on race in the school environment, rather than eliminating it.”
The initial court filing points to examples drawn from presentations and other curriculum materials as evidence of what are characterized as “efforts by the school system to indoctrinate students into harmful ideologies.” Examples include perpetuating racial stereotypes by classifying communication methods into “white talk” and “color commentary,” defining phrases like “colorblindness” and “Why can’t we all just get along?” as racist, and describing “white privilege” as a permanent, debilitating attribute.
The suit also raises questions about governmentally compelled speech and students’ due process rights. For instance, the curriculum’s definition of the central concept of racism is “the marginalization and/or oppression of people of color based on a socially constructed racial hierarchy that privileges white people.” Thus, plaintiffs allege that students must accept that only white people can be racists or face disciplinary action for “racist actions.”
The lawsuit does not focus on whether the history of racism or its present-day implications should or should not be taught in schools, but rather on whether ACPS’ methods used to teach about racism are constitutional. From the complaint’s text: “The question in this case is not whether racism still exists; it does. Nor is the question whether racism must be vanquished; it must. Rather, the question is whether Defendants may use unconstitutional means to indoctrinate students with an ideology that teaches children to affirmatively discriminate based on race. The Virginia Constitution answers with a resounding ‘no.’”
ACPS and the Governor’s Executive Order
The school division was given a deadline of January 31 to respond to the initial complaint and declined to comment on the pending suit. “Although this suit was announced during winter break, we only recently were served and are reviewing its allegations,” said ACPS spokesman Phil Giaramita. “It’s been the policy of the school division on any current litigation that the proper forum in which to respond to claims made against the school division is in the courts and not through the press.”
Giaramita pointed to a July 2021 ACPS news release in which the Albemarle School Board and Superintendent Haas reaffirmed their support for the anti-racism program, describing their commitment as “non-negotiable.” “We stand by our endorsement of programs and activities that empower staff to meet the requirements of our anti-racism policy. This expressly includes Henley Middle School’s concluded pilot activity that added racial awareness conversations to its student advisory periods.”
The statement adds that the Henley lessons were the result of the division’s anti-racism policy, developed in 2019, which requires that “[t]he Board and Division shall implement an anti-racist curriculum and provide educational resources for students at every grade level.” The policy also stipulates that “[a]ll curriculum materials shall be examined for racial bias by the Division’s Department of Student Learning. Where materials reflect racial bias, teachers utilizing the materials will acknowledge the bias and communicate it to students and parents.” ACPS plans to expand the Courageous Conversations lessons into a full-year curriculum for all middle schools.
One argument the school division may use in its defense is the power vested in local school boards by Virginia law, which states, “[The local board of education] shall have authority to approve textbooks and instructional aids and materials for use in courses in the public schools of the Commonwealth.” In response, Bangert said that schools are never permitted under the Virginia Constitution to violate basic civil rights.
ADF’s attorneys are optimistic about the prospects of the ACPS lawsuit in the courts. “We’ve already seen, in a different context, some encouraging developments in Loudoun county,” said Bangert, referring to an ADF case in which the Loudoun school division suspended a teacher for expressing his religious beliefs in conflict with division transgender student policy. The teacher was subsequently reinstated and the decision was upheld by the Virginia Supreme Court.
ADF is also currently representing a group of parents and teachers in Harrisonburg who object to the school division’s policy of requiring school staff to use any name or pronoun requested by a student while also hiding the requested change from the student’s parents. Should any decision in the Albemarle schools’ case be appealed to higher courts, the matter could be decided by the Virginia Supreme Court, but would not rise to the U.S. Supreme Court because the case does not raise any federal questions in the complaint.
Newly installed Virginia Governor Glenn Youngkin issued an Executive Order on January 15 that “ends the use of inherently divisive concepts—including Critical Race Theory—in public education.” Critical Race Theory (CRT) is an academic framework that posits than any systemic imbalance in racial outcomes (e.g. educational achievement, law enforcement, social standing) is the result of racism and discrimination. CRT has been applied by scholars and writers such as Ibram X. Kendi and Glenn Singleton, whose materials are used in the ACPS curriculum, to define the “anti-racism” approach to combatting racism.
While CRT is not specifically referenced in any of the six Causes of Action in the parents’ lawsuit, the case does make the connection between the framework and the teaching materials used at Henley. “We commend Governor Youngkin for signing an executive order on day one to end Virginia public schools’ use of divisive concepts, including Critical Race Theory,” said Bangert. “As the governor’s order states, indoctrinating students in this dangerous ideology violates the Virginia Constitution and has no place in our public schools. That is exactly why we are representing parents who are suing Albemarle County School District.”
C. I. v. Albemarle County School Board, Matthew Haas, and Bernard Hairston
The lawsuit’s initial complaint lays out six areas in which it asserts that the anti-racism curriculum violates Virginia constitutional law. (Quotes are taken from court documents.)
1) The right to freedom from government discrimination based on race. “Defendants’ differential treatment of students based on their race is intentional … and creates a racially hostile educational environment.”
2) The right to freedom of speech with respect to viewpoint discrimination. “Defendants have labeled those who disagree with their ideology as racist.”
3) The right to freedom of speech with respect to compelled speech. “Defendants have compelled and seek to compel Plaintiffs, subject to the pains of discipline and lower academic ratings, to affirm and communicate messages that conflict with their deeply held beliefs.”
4) The right to freedom from discrimination based on religion. “Defendants’ curriculum discriminates on the basis of religion by teaching that Christianity is a “dominant” “identity” that has oppressed “subordinate” “identities” such as Islam, Buddhism, Judaism, other non-Christian religions, and atheism.”
5) The right to due process, to prohibit government from censoring speech or behavior. “Defendants’ policy and standards are vague and give students insufficient notice on whether their desired words or actions will be considered to violate Defendants’ policy and regulations.”
6) The rights of parents to control the upbringing and education of their children. “Plaintiff parents [should] have a fundamental right to opt their children out of indoctrination and disparate treatment.”
