Filed in federal court Wednesday, the lawsuit argues that Loudoun County Public Schools (LCPS) and its "equity student ambassador" program restrict eligibility to non-White individuals and requires they hold certain views about social justice. It also targets a bias response system designed to flag perceived microaggressions or other incidents of "bias" between students.
Plaintiffs include multiple anonymous persons in addition to two county activists – Scott Mineo of Parents Against Critical Theory and Patti Hildalgo Menders of the Loudoun Republican Women's Club.
Both Mineo and Hidalgo Menders have been outspoken in the ongoing battle between parents, teachers, and administrators who harbor sharply different views about so-called equity and diversity training. In recent months, Loudoun has become the poster child for the controversy surrounding critical race theory (CRT) or ideas associated with it.
While parents have repeatedly denounced the school board and tried to recall its members, Tuesday's lawsuit represents a significant escalation and growing shift in strategy among CRT opponents. Because these trainings often make sweeping claims about racial groups, they've raised concerns about potential civil rights violations that could be addressed in courts.
According to the filing, the Loudoun schools explicitly indicated White students were disqualified from serving as equity ambassadors. Before they were removed from Loudoun's website, an FAQ section and information packet specifically designated the positions for children of color, the filing says.
The child plaintiffs, who were listed anonymously in the suit, purportedly wouldn't meet LCPS' criteria for the ambassadorships and would not describe their "views as ’social justice' as LCPS uses that term."
In response to an FAQ about a White child potentially serving, the county said: "Thank you for your interest but this opportunity is specifically for students of Color. However, students at each school have an option of creating an affinity group for students of Color who all share a similar racial identity and they may also include allies."
Those portions were removed, according to the filing, but emails showed an LCPS administrator telling a parent that "[t]hough all students (white or otherwise) are more than welcome to potentially serve as ambassadors, their focus is to raise the voice of their classmates of color during these meetings."
Both that provision and the review of "bias incidents" fail to pass the type of strict scrutiny required for limiting constitutional liberties, the parents argued. More specifically, the lawsuit alleged the school violated the First Amendment's free speech protections and Fourteenth Amendment's guarantee that states provide equal protection under the law.
"LCPS, in defining the scope of ‘bias incidents,’ has created content-based regulations of speech subject to strict scrutiny, because only speech about certain matters can possibly be reported as ‘bias incidents,’" the lawsuit reads. "The ‘bias incident’ reporting system also chills speech based on viewpoint knowing that the equity ambassadors who will judge their peers’ speech must hold certain viewpoints in order to secure their positions."
It's unclear how, if at all, students would be punished for so-called "bias incidents," a concept that has become the subject of lawsuits at major universities.
LCPS declined to comment on the lawsuit, citing pending litigation. However, Public Information Officer Wayde Byard told Fox News that students "don’t review the bias incidents." He added: "The reports go to the Equity Office. They are used to see if there are trends the equity ambassadors need to discuss. There are no consequences resulting from filling out these forms."
An email obtained via the Fight For Schools PAC showed a middle school principal outlining the bias response program to students.
"LCPS has created an opportunity for students to anonymously share their stories of bias experienced within LCPS," says Mercer Middle School Principal Nikisha Diehl. "A bias incident is an act of discrimination, harassment, and intimidation directed against any person or group that appears to be intentional and motivated by prejudice or bias."
It added that the system was not intended "for reporting incidents, but to share your stories."
Students, the email advised, should continue reporting incidents "to a trusted adult as you normally do."
Still, parents are worried about the impact of such a system in a county that has seen so much controversy over race and identity.
A raging debate over speech and race in Loudoun
Wednesday's lawsuit could be the first of many as teachers and parents have reported widespread propagation of CRT or ideas they say are racist.
Multiple teachers and parents, who spoke on the condition of anonymity, have told Fox News they observed a suppression or avoidance of dissent on the issue.
Although the county has said it doesn't teach CRT, critics say the terminology and ideas are too similar not to originate from that particular school of thought.
Beyond training content, the conservative news website, The Daily Wire, previously reported on how the leader of the district’s Minority Student Achievement Advisory Committee (MSAAC) proposed punishing teachers if they criticize equity trainings.
"That simply cannot and should not be tolerated by anyone employed by LCPS!", the chair of MSAAC, Keira Jennings, reportedly wrote. She then appeared to call for teachers to be dismissed if they did not fully embrace diversity training.
"If our teachers and staff cannot be open and willing to learn how to be culturally competent then they do not need to be in the classrooms any longer as they will only hinder the process and most importantly cause irreparable harm to the vulnerable hearts and minds of our students," Jennings said according to The Daily Wire.
Concerns were also raised after members of a secret Facebook group – where only invited members, or former members can see messages – began compiling names of people opposed to CRT and related ideas. Although some school board members belonged to that group, the extent of their involvement with those activities remains unclear.
Byard previously told Fox News that LCPS "has stated, consistently, that it does not condone the actions of employees – or anyone – who would target fellow members of the community for expressing their viewpoint." In addressing another teacher's criticism of CRT opponents, Byard emphasized that the teacher was exercising her First Amendment rights.
Last week refocused attention on the issue, however, as a teacher was put on leave after denouncing an LCPS policy requiring faculty to use preferred gender pronouns.
"I love all of my students but I will never lie to them regardless of the consequences," said teacher Byron Cross, who is now suing the county for alleged violations of free speech.
"I'm a teacher but I serve God first and I will not affirm that a biological boy can be a girl and vice versa because it's against my religion. It's lying to a child, it's abuse to a child, and it's sinning against our God."
The county's official reason for placing Cross on leave is unclear. LCPS declined to comment on the reason when asked by Fox News. However, he received a letter that vaguely informed him of an investigation into "allegations that you engaged in conduct that has had a disruptive impact on the operations" of his school.
Mineo responded last week, telling Fox News: "This was a bold, insulting, and eye-opening moment that showed public opinion means so little to LCPS, that they still felt it was a good idea to force this teacher into to take leave. Hypocrisy and shame don’t even begin to describe their actions."
Another Loudoun parent, Elizabeth Perrin, told Fox News that "it is truly sad that once again, our school board listens only to those in agreement with their point of view, and punishes any dissenting opinions via social media." She was alluding to alleged activities on the secret Facebook group, Anti-Racist Parents of Loudoun County.
Documents obtained by Fight for Schools PAC also indicated that the district had misled people about not utilizing critical race theory.
An invoice from The Equity Collaborative, which received nearly $500,000 from the county, contained a line item for "Coaching support for LCPS leaders - follow up meetings focused on Critical Race Theory Development May 2020." That was billed at $625 per hour for five hours, or $3,750. LCPS did not respond to a request for comment on this.
The district has denied teaching critical race theory. For example, Ziegler previously said, "LCPS has not adopted Critical Race Theory as a framework for staff to adhere to." He also said: "In explaining LCPS' equity priorities, it might be helpful to state what they are not. They are not an effort to indoctrinate students and staff into a particular philosophy or theory. What they are is an effort to provide a welcoming, inclusive, affirming environment for all students."
Fox News' Bradford Betz contributed to this report.