The Stafford County School Board has requested that an independent lawyer review two proposed nondiscrimination policies before the board votes on them next month.
The board has been considering the policies since late May. Two scheduled work sessions on the policies have been either cancelled or cut short.
The two policies—one of which would apply to employees of the school division and the other to students—expand the categories protected from discrimination to include “pregnancy, childbirth or related medical conditions, marital status, mental or physical disability, age, genetic information, sexual orientation [and] gender identity.”
These protected categories are in addition to race, sex, age, color, religion, national origin and political affiliation.
Division staff, led by Stafford Superintendent Scott Kizner, proposed the new policies in response to an October incident in which a transgender girl at a county middle school was prevented from entering either the boys’ or girls’ locker rooms during a lockdown drill.
Late last year, Kizner proposed a comprehensive policy that outlined how division staff should accommodate transgender students. This policy was shelved in favor of the broader nondiscrimination and equal opportunity policies that were first presented May 28.
At Tuesday night’s School Board meeting, both Chairwoman Patricia Healy, who represents the Rock Hill District representative, and Aquia District representative Irene Egan requested that an independent lawyer review the policies and provide input before the board meets again July 16.
“A question I’ve received is, ‘What is the impact on Stafford County Public Schools if these policies are passed as they’re written? What position does it put us in after they’re passed that we were not in before?’ ” said Healy, a real estate lawyer.
“We have classes that are protected under state and federal laws, but are we adding to that? I think it’s a valid question and I would like to get a legal opinion as to the impact, in terms of the schools’ responsibility and liabilities and potential exposure.”
Egain said she has been “adamant” about obtaining legal input on any proposed new nondiscrimination policy since discussions began in the fall.
“I want to be able to look my constituents in the eye and say, ‘Yes, I did my research. I know what pitfalls there could be, what benefits there could be,’ ” Egan said. “But I can’t tell my constituents anything, because I don’t know.”
Kizner has stated at previous meetings that the language in the proposed policies is the same as that in a policy approved in February by Loudoun County Public Schools and that Fairfax and Prince William counties have similar policies.
On Tuesday, Kizner said that he has already addressed the legality of the proposed policy with the school division’s attorney.
“Nothing that we have presented to you has not gone through the scrutiny of legal opinion,” he said.
During public comments Tuesday, Josh Hetzler, legislative counsel for the Family Foundation of Virginia, said that in adopting the policies, the board would be violating the Dillon Rule, a doctrine derived from decisions made in 1868 by Iowa Supreme Court Chief Justice John Dillon.
The Dillon Rule states that local governing bodies, such as school boards, have “only those powers that are expressly granted, those that are necessarily or fairly implied from expressly granted powers and those that are essential and indispensable,” as the Virginia Supreme Court stated in a 1980 decision.
Hetzler said sexual orientation and gender identity are not protected categories under Virginia state nondiscrimination law, so the School Board would be exceeding its authority by including these categories.
However, in 2015, Attorney General Mark Herring issued an opinion stating that local school boards do have the authority to include sexual orientation and gender identity in their anti-discrimination policies.
School division spokeswoman Sherrie Johnson said she expects the board will vote on the policies at its next meeting July 16.