A “chilling effect” on free speech….

Yesterday we told you how the 4th Circuit held that parents lacked standing to complain about the Equity Ambassadors program in a Virginia school district because the children of the parents had neither applied to be Ambassadors, nor expressed interest in doing so. But the parents had better luck with their complaint that one component of the program might infringe on the right of free expression.

This was all set up by the district in an effort to address campus climate. The school’s hired consulting firm recommended that the school set up “student affinity groups at all levels to support the social and cultural identities of students of color.” These efforts led to the creation of a Share, Speak Up, Speak Out Bias Reporting Form, which allowed for anonymous complaints of incidents of perceived bias.

The parents alleged that the form was having the effect of “chilling” free speech rights. The parents noted that the Student Equity Ambassadors cited “a framework of ‘colorblindness’ that sees people as individuals rather than members of a race as examples of microaggressions.” Then this:

Then the parents address the reasons the bias reports have chilled their children’s speech. They allege that their children “believe that everyone is equal and that we should strive for a color blind society.” The parents also allege that the children “wish to speak out on [Critical Race Theory], race, and gender identity, and other controversial political issues within the LCPS community,” but that their views are not shared with others in the community.

In short, the students were afraid to speak out on these issues, afraid that their comments would be reported and investigated as “bias incidents” or “microaggressions.”

The court held that this was enough to allow the case to go forward. The parents had standing to sue over this because they had alleged that the bias reporting system “caused the parents’ children to experience a non-speculative and objectively reasonable chilling effect on their speech.”

The case now returns to the federal district court, which, perhaps, will make a ruling on the merits. It’s Menders v. Loudoun County School Board, decided by the 4th Circuit Court of Appeals on April 14, 2023. The case is cited at 2023 WL 293607.


Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.