By Bridget Manley, publisher
A more than two-year-old lawsuit against the Harrisonburg School Board is over, with a conservative group declaring victory and the school district saying nothing really changes with the legal resolution.
A court hearing Tuesday finalized the resolution.
The saga started with a PowerPoint presentation used in an optional training session for school staff in 2021 regarding how to work with non-gender conforming students who wish to use a different name and/or different pronouns.
The Alliance Defending Freedom, an Arizona-based conservative legal advocacy group, sued the Harrisonburg School Board in June 2022 on behalf of three teachers — Deborah Figliola, Kristine Marsh, and Laura Nelson. ADF argued that the school district’s training session made it seem as if teachers couldn’t share information about a student’s preferred name or pronoun with the student’s parents.
Following the hearing Tuesday, ADF claimed victory, stating the school district capitulated by offering religious accommodations that could exempt the three teachers they represented from having to follow what the training slides said. The teachers submitted their religious accommodation requests to the school system on Nov. 26, according to the final court order.
But while school system leaders granted the teachers’ requests on Dec. 6, they contend those religious accommodations — and the entire lawsuit — were unnecessary because the training wasn’t mandatory and wasn’t a formal policy. No one has ever asked — or will ever be asked — to lie to parents, said Superintendent Michael Richards.
“Our guidelines for supporting gender nonconforming students remain in their original form as part of our practices,” Richards said in a statement to The Citizen. “This lawsuit did not remove or change those best practices. We will continue to support our gender nonconforming students using the best advice of experts.”
In a written statement to The Citizen, school board chair Andy Kohen said the board was “very happy that the litigation begun more than two years ago is now resolved.”
“Our commitment is reflected in School Board policies and actions, including our all-embracing inclusivity statement and the adoption of a formal religious accommodations policy (Policy 682) more than a year ago,” Kohen wrote. “Further, (contrary to ADF claims) the sometimes-misunderstood training for employees never required teachers or other staff to abandon their personal beliefs in order to avoid retribution when dealing with a student’s preferences regarding gender identity.”
He added that training for teachers this summer emphasized how there was no “punishment or retribution in these situations.”
“These efforts demonstrate our dedication to fostering a respectful and inclusive environment,” he wrote.
Kate Anderson, director of the Center for Parental Rights at ADF, told The Citizen that the group first brought the case because ADF believed the training violated “our client’s religious beliefs as well as the free speech rights and religious beliefs of many teachers.”
“Harrisonburg Public Schools agreed to both accommodate our clients by making specific specifications as to how they would handle this when a student in their class has this come up,” Anderson said.
She said that signaled a major change in direction.
“Telling all staff that Harrisonburg Public Schools does not require them to ask for pronouns, use pronouns; and it doesn’t support any staff withholding or hiding information from parents, which was a really important part of this case,” she said.
Religious accommodation has always been an informal policy within HPCS, most often used when a staff member requests time off for a religious holiday. On Nov. 9, 2023, the board voted to make their religious accommodation a formal policy.
Richards said the Harrisonburg system’s attorneys sent the ADF attorneys the religious accommodation information multiple times since the lawsuit began, requesting that it be sent to the teachers ADF represented. Those attorneys advised Richards not to contact the teachers personally during litigation.
Further, the school system, which continued to offer staff the optional training, included an additional slide last August that mentioned religious accommodation.
Anderson said she wasn’t aware that the school system had informed ADF of the accommodation or that the school system’s lawyers asked to pass the information on to the group of teachers.
“My understanding is that teachers were not all informed of the policy and that there was some disconnect in the passing of the policy and informing teachers,” Anderson said.
Instead, she said the accommodation policy came out during one of the legal filings.
“They raised this accommodation policy in responding to that motion, and that’s what triggered the discussions that then came to this wonderful resolution,” she said.
However, Richards told The Citizen that while they offer religious accommodation, it was unnecessary in this case because it was never “compelled speech,” i.e. when the government forces a person or group to express a specific idea or support a particular message.
A ripple effect of legal costs
Richards said he doesn’t know how much money the school spent on the lawsuit overall, but it will have a ripple effect in the future.
The school system keeps Botkin and Rose, its law firm, on retainer. However, the system’s insurer, Virginia Association of Counties Group Self-Insurance Risk Pool (VAcorp), hired the lead attorneys for the case.
While insurance covers the legal fees, Richards said the price of the school system’s insurance will go up — not just for the city school system but also for the pool of school divisions that insure with them.
Further, the system did have to pay the hourly rate for the attorney with Botkin and Rose to attend meetings with Harman, Claytor, Corrigan, and Wellman, the attorneys representing the system in this case.
“It’s raised our legal bills during these two years considerably in terms of just paying our own school board attorney to guide us in working with the law firm the insurer has provided,” Richards said.
Another drain on resources was the staff hours used to handle the search and execution of documents requested by ADF during discovery, where the two parties in a lawsuit exchange information related to the case.
Richards said ADF made two significant requests for information during the lawsuit, followed by additional documentation requests based on the information they were given.
It requires time to review each document, ensure its relevance and redact private information. The same is then done with the attorneys before it is turned over.
Richards said he almost had to hire a paralegal to handle that responsibility.
“There was a lot of staff time, including my own time, working on that,” Richards said. “Instead of a paralegal, I hired a special ed assistant for a school. But I almost had to hire a paralegal instead of a special ed assistant.”
Anderson said ADF doesn’t bring cases to raise funds and that it provides its services to clients pro bono.
“All of our cases are designed to promote the free speech and religious freedom of our clients and then for the greater public,” Anderson said. “Most of our cases like this one have broad-reaching implications beyond just the plaintiff. So this one will protect teachers throughout the district.”
Arguing over what teachers were told
The school board has always maintained the training materials were guidelines, not policy.
In a sworn affidavit in the fall of 2022, Richards explained that the training, labeled “Supporting Our Transgender Students” presentation, was not training mandated by the division, was not presented as mandatory, and did not contain any language that staff would be subject to discipline by the division for noncompliance.
Nonetheless, ADF sued, claiming the training materials were district policy and that teachers were compelled to follow them or face discipline as a result.
“ADF came along, saw the guidelines, and labeled them ‘policies’, labeled them directives, when they never were,” Richards told The Citizen following the lawsuit’s resolution. “[ADF] claimed they were compelling speech and compelling teachers to lie to parents. Neither of those assertions were ever true.”
Those materials gave guidance on supporting gender-nonconforming students, following laws passed by the Virginia General Assembly in 2020 that required local school boards to adopt policies on the treatment of transgender students that were consistent with the model policies developed by the Virginia Department of Education.
The Harrisonburg School Board adopted a policy in August of 2021 that included language updating the system’s “Equal Educational Opportunities/Nondiscrimination” policy to include the language “sexual orientation” and “gender identity.”
The guidance called for the HCPS administration to develop a team-based process for responding to students’ and families’ needs.
That process begins when a student tells a teacher about a desired name or pronoun change, which the teacher would then refer to the school counselor, Richards said. The counselor would then assemble a team of school administration, the student’s family, and other support staff and mental health professionals to “promote a safe learning environment for the student.”
Training in the future
Richards said most staff who have attended the training sessions have expressed gratitude for the guidance.
“A large percentage of our staff were eager to receive this guidance,” Richards said.
“Keep in mind that we are a school division that is brimming over with kindness,” Richards said. “We are not a school division where it is unusual for staff to already be doing these kinds of things to support marginalized students.”
The city school system will continue to use the training materials in the future, and the guidance and training will continue to be optional for all teachers and staff, Richards said.
“This case concludes because the processes we have always encouraged—both informal and formal—proved effective,” Kohen concluded in his statement. “We are pleased with the resolution of the litigation and fervently believe it could have been accomplished without litigation.”
Thanks for reading The Citizen, which won the Virginia Press Association’s 2022 News Sweepstakes award as the top online news site in Virginia. We’re independent. We’re local. We pay our contributors, and the money you give goes directly to the reporting. No overhead. No printing costs. Just facts, stories and context. We value your support.
