Bacon's Rebellion

Democracy Thrives in Sunlight

Loudoun School Board Flouts Law, Constitution

—

by

James A. Bacon
in

Loudoun County School Board meeting… before the restrictions. Photo credit: Loudoun Times

by Emilio Jaksetic

According to The Virginia Star, the Loudoun County School Board has issued new procedures for its public meetings that improperly restrict the right of Virginians to comment at public meetings.

Citing “ongoing security threats” the school system website declared: “Only people signed up to speak to the School Board will be allowed to enter the building. For everyone’s safety, no public viewing area will be open during the public comment portion of the meeting.” Also: “Although the School Board is committed to public input, there remains concern about the safety of all participants in the public-input process. The safety and security of all staff, students and visitors remains our highest priority.”

Any School Board rules or procedures limiting speech at public meetings must comply with the First Amendment of the U.S. Constitution. (See the Attorney General Opinion of April 15, 2016.) Further, criticisms of governmental officials — including personal attacks — are protected speech under the First Amendment of the U.S. Constitution. Accordingly, public criticisms of Loudoun County Public Schools and the Loudoun County School Board are protected by the First Amendment and cannot be impeded by the School Board.

Any School Board rules or procedures also must comply with the Virginia Constitution. As elected officials, the School Board members are bound by the Virginia Constitution and are answerable to the people of Loudoun County. Furthermore, the Virginia Constitution protects freedom of speech and the right to petition the government for redress of grievances.

Public comments by the public, including criticisms of governmental officials, are an important means of expressing grievances and holding government officials accountable. By unduly restricting the ability of Virginians to exercise their constitutional right to make public comments about the actions of the School Board, the board is improperly trying to reduce its accountability to the public.

Any School Board rules or procedures pertaining to public meetings also must comply with the Virginia Freedom of Information Act. The School Board cannot adopt any rule or procedure that conflicts with the provisions of the Virginia FOIA. According to the Virginia FOIA, with few exceptions, government meetings must be open to the public. Two provisions of the new School Board procedures violate those statutory provisions: (1) No person may make a comment at a public meeting without having pre-registered with the School Board, and (2) “Only people signed up to speak to the School Board will be allowed to enter the building.”

The pre-registration required runs afoul of the Virginia FOIA provision that meetings must be open to the public. Nothing in the FOIA states or suggests that the School Board can limit or restrict that statutory requirement by imposing a pre-registration requirement, or that a member of the public waives or forfeits the right to attend a public meeting by refusing or failing to pre-register for it. Nothing in the Virginia FOIA grants the School Board the right to create categories of people who can and cannot attend its public meetings, or categories of people who can and cannot make public comments at such meetings.

Limiting entrance to the building to only those people pre-registered to make comments to the School Board at a public meeting is improper for additional reasons. This procedure precludes any person who wants to just observe the School Board’s public meeting in person (without making any public comment) from exercising their lawful right to do so under the Virginia FOIA. It also prevents attendance at a School Board public meeting by anyone (family member, relative, friend, neighbor, or other person) who wants to be present to give moral support to another person making a public comment. Furthermore, the prohibition implies that the School Board will exclude members of the press because they will not be attending to make public comments.

Any parent, custodian, or legal guardian of a pupil attending public schools who is aggrieved by an action of a School Board can seek judicial review under Virginia Code Section 22.1-87. And, any Virginian seeking to vindicate his or her rights under the Virginia FOIA can seek relief under that statute. Anyone interested in seeking such relief should get professional advice and assistance from a lawyer currently licensed to practice in Virginia.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

Share this article

ADVERTISEMENT

(comments below)

ADVERTISEMENT

(comments below)

Comments

25 responses to “Loudoun School Board Flouts Law, Constitution”

  1. Stephen Haner Avatar
    Stephen Haner

    Over the years I’ve seen plenty of governing bodies ask people to register in advance to speak, including hearings at the General Assembly. It is the second one which clearly violates common sense, let alone the law, although I’ve seen building occupancy restrictions used to limit the audience. But a rule saying only pre-registered speakers can attend won’t stand ten seconds in court.

    1. LarrytheG Avatar
      LarrytheG

      That’s funny. I’ve been to several GA public meetings and it was not easy to be able to get up and speak. One Chair said something to the effect: ” if we’ve heard your point before, don’t repeat it”.

  2. Kathleen Smith Avatar
    Kathleen Smith

    Maybe they are tired of their staff being threatened. They are rather rowdy meetings.

    1. tmtfairfax Avatar
      tmtfairfax

      A good friend of mine who is a Fairfax County supervisor has told me on many occasions that it’s the job of public officials to sit through all sorts of public meetings irrespective of the crowd’s behavior so long as it does not create a safety situation requiring law enforcement. No one forces people to run for office.

      1. Kathleen Smith Avatar
        Kathleen Smith

        But what about staff members like assistant Sup getting threatened by the public? Go view the videos. They didn’t run for office. The elected leadership doesn’t have the courage to press charges.

        1. tmtfairfax Avatar
          tmtfairfax

          So if an individual is being threatened to the extent that the threats reach the level of violating the law, that individual can her/himself press charges. The remedy is to deal with violations of law or public safety individually and not shut out the public from their constitutional rights.

          Further, when a public official, elected or non-elected, sticks a finger in people’s eyes, they need to expect an angry and hostile reaction. Putting CRT into public schools without first conducting sufficient vetting with the community is an action of hostility to the public.

          1. LarrytheG Avatar
            LarrytheG

            Is that actually true or is it what some people think? If you think something is true, does it entitle you to act like an idiot in a public meeting? That’s your “constitutional” right?

            Public bodies don’t have to provide forums for rude and hostile fools who are acting out from misinformation, disinformation and conspiracy theories.

            They don’t have to give you a forum in order for them to “hear” you. They can request that you submit your comments on paper or email.

          2. Packer Fan Avatar
            Packer Fan

            How about those rude and hostile fools in Portland, Seattle, and so on and so on…. Was that their constitutional right? Cities shouldn’t allow this acting out from misinformation, disinformation and conspiracy theories.

          3. LarrytheG Avatar
            LarrytheG

            ANY meeting where people are rude and acting up , standing up, shouting, etc, I don’t care who they are or what their complaint is – it don’t work and I don’t blame the board one bit for curtailing it.

            I’m see this happen on other issues and folks with opposite views are intimidated and shouted down.

            For all the talk her in BR about mob rule – this is a prime example of it and no surprise the usual suspects defend it when the issue aligns with their politics.

            It’s unacceptable no matter the politics.

  3. DJRippert Avatar
    DJRippert

    The Loudoun Lululemon League is afraid of only one thing- exposure. They want to slink around in secret paying racist asshats like Kendi to coach their teachers but they don’t want that in the public domain. They want to practice their own “too many Asians” racism but they don’t want to see that on the evening news.

    The parents in northern Virginia have had quite enough of dumpster fires like the Loudoun County School Board. Underhanded little groups who want to impose idiotic ideas on our children. So, the parents flock to the school board meetings demanding that the jackwagons on the school board explain themselves.

    But cockroaches hate the kitchen light.

    Heavily attended school board meetings get the attention of even the Main Stream Media. Parents demand that the school board members explain themselves. The media picks up on the issue and suddenly the school board members are forced to publicly explain why they are paying racists $20,000 to coach their teachers. Voters who don’t attend the school board meetings see the cowards on the school board getting their asses handed to them by the parents. New Youngkin supporters are born every time one of those news stories airs.

    The liberals on Loudoun County’s School Board can’t have that.

    Cowardice and secrecy are part of the LCSB’s tradecraft.

    Ban the parents!

    Ban the public!

    The school board members are afraid! Afraid of the parents. Afraid of the taxpayers. Afraid of the voters.

    They should be afraid. Not of violence but of exposure. They are publicly being exposed as the far left lunatics they really are.

    1. LarrytheG Avatar
      LarrytheG

      If people are acting up, being obnoxious and refusing to behave, and Deputies have to be there – I say kick their sorry azzes out.

      THese bodies, elected officials, should listen to the public but the public is not entitled to act like a bunch of ass hats.

  4. Super Brain Avatar
    Super Brain

    The Chesterfield County Public Schools did this at one time when Marcus Newsome was superintendent.

  5. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    They have to do this. The school board is stuck with their job until November 2023. That is a long haul. Locking the angry parents out is the only way for them to survive.

  6. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Of course, it is important that citizens be allowed to attend meetings of public bodies and have a chance to voice their opinions. Beyond that obvious proposition, this post is misleading, where it is not downright wrong.

    Of course, the Loudoun County School Board must comply with the U.S. and Virginia constitutions. Mr. Jaksetic broadly implies that its new procedures are not in compliance. Which provision of which constitution is being violated? He offers no specifics because there are none. No provision of the the Loudoun School Board rules of procedure would impede the criticism of the school board members or any public officials. As for petitioning for redress of grievances, the school board provides three ways for citizens to submit their comments, grievances or otherwise: in writing, in person, in a virtual manner.

    He is correct that the law requires the meeting to be open to the public. They will be open to the public. Not only will be public be admitted to business sessions on a first come first served basis, the meetings will be televised and live streamed.

    Mr. Jaksetic claims the pre-registration requirement “runs afoul” of the FOIA because nothing in that law authorizes a public body to require pre-registration, organize its public comment period so that only those members of the public making comments are physically present in the board room, and prohibit anyone not pre-registered from providing comments. That is correct. More importantly, however, there is nothing in the FOIA that would prohibit those practices. The FOIA does not dictate how a public body runs its meetings. It only requires that the meetings be open to public observation.

    By the way, it is not really true that failing to pre-register voids any opportunity to voice one’s grievances. Walk-up registration will be accepted until five minutes before the start of the meeting. Furthermore, one can voice those grievance on the virtual platform.

    On the webside, the board makes it clear that the changes in its procedures are a direct result of the disruption that occurred at the June 22 meeting

    1. Eric the half a troll Avatar
      Eric the half a troll

      To summarize… do you think counsel did not review these new procedures…?🤷‍♂️

    2. LarrytheG Avatar
      LarrytheG

      In my county, “registration” is how the order of the speakers is determined. Without it , how would the order of the speakers be determined?

      Beyond that , the board CAN have rules and they do and they are legal. They can stipulate WHERE in the room you can speak – and not speak.

      For instance, they can and do limit WHEN public comments can be given AND they can set limits on how long someone can speak. AND if the speakers are rude or making personal attacks, the mike can be turned off – there is no “right” to a microphone!

      According to Jaksetic, such rules are “restrictions” on Free speech.

      The board can choose HOW it receives comments. It can require them to be on paper and not in a public setting. VDOT does that all the time for some of it’s meetings.

      Jaksetic confuses the “right” to be heard by public officials with the manner in which they can choose to receive comments. There is no “right” to be able to address them publically at any venue at any time of your choosing.

      You cannot walk into a meeting and get up and start speaking anytime you wish.

      If you do that at most meetings, the elected officials will summon a deputy and have you escorted out and last I heard, no a single court case has been won that says the elected officials cannot have you escorted out if you don’t follow the rules.

      This is more wacadoodle world logic.

      1. tmtfairfax Avatar
        tmtfairfax

        Fairfax County public bodies require registration to speak but, at the end of the scheduled speakers, they always ask whether there is anyone else in attendance, including online or by phone during the pandemic who wishes to speak. Those persons are allowed generally three minutes to talk. If Fairfax County can accommodate unscheduled speakers, so can Loudoun.

      2. WayneS Avatar
        WayneS

        You cannot walk into a meeting and get up and start speaking anytime you wish.

        And apparently, under the Loudoun School Board’s new rules, you cannot walk into a meeting and just sit there watching and listening without saying a word, either. That is the part I find appalling.

        From the article: “Only people signed up to speak to the School Board will be allowed to enter the building.”

        1. LarrytheG Avatar
          LarrytheG

          that happened without provocation?

          Did it start out that way?

          1. WayneS Avatar
            WayneS

            Did you read the article?

          2. LarrytheG Avatar
            LarrytheG

            this part: ” School system officials said they are modifying their policy “in direct response to the increase in threats and the unruly and unsafe behavior at the June 22 board meeting.” ?

    3. emjak Avatar
      emjak

      The draft I submitted to Bacon’s Rebellion had citations to the Virginia Constitution, but those citations were not included in the article posted. Here is the passage as I submitted it to Bacons’ Rebellion:

      “Any School Board rules or procedures also must comply with the Virginia Constitution. Copy at https://law.lis.virginia.gov/constitution As elected officials, the School Board members are bound by the Virginia Constitution. Virginia Constitution, Article II, Section 7. Also, as elected officials, the School Board is answerable to the people of Loudoun County. Virginia Constitution, Article I, Section 2. Furthermore, the Virginia Constitution (Article I, Section 12) protects freedom of speech and the right to petition the government for redress of grievances.”

      1. LarrytheG Avatar
        LarrytheG

        The Constitution grants you those rights but they don’t require how or where you can exercise them.

        For instance, you just cannot walk into ANY meeting and stand up and exercise those rights anytime or for as long as you wish.

        There ARE restrictions AND they ARE Constitutional and legal.

        Even if you walked into a Restaurant, or funeral home, or the DMV or a post office or ANY government office, you are NOT guaranteed a right to free speech and petitioning the govt.

        Any lawsuit is going to find this out pretty quick IMHO.

        The School Board – MUST “hear you” but HOW they hear you is their choice and if they think the venue for public comments is disruptive or unsafe, they CAN restrict the manner and venue of public comments. They can even decide where, when, and how even without concerns for safety and disruption. It is their prerogative.

        Go to a VDOT hearing some day and you’ll find that in some cases, VDOT does not take PUBLIC comments, they provide you with a person who will record your comments and have them transcribed into the record.

        People do not understand the Constitution.

        A judge is going to say exactly this but probably take 50-some pages to do so with the appropriate legalize and prior court rulings.

    4. emjak Avatar
      emjak

      On its face, requiring pre-registration is not inherently improper. However, the manner and circumstances under which pre-registration is required or used can become improper if it interferes with or impedes legal rights. The fact that pre-registration can be applied in a manner that is compatible with the Virginia FOIA does not mean that it cannot be misused to interfere with the letter and spirit of the Virginia FOIA. The manner in which the Loudoun County School Board used pre-registration to limit and restrict attendance at a public meeting is the problem.

  7. vicnicholls Avatar
    vicnicholls

    Thank you because this is going to make a different in VB also. 😉

Leave a Reply

Read More