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Fourth Circuit judge questions John Roberts’ view of racism in Loudoun case


During a court battle over school anti-bias initiatives in Virginia, an attorney for a conservative advocacy group representing plaintiffs cited one of Chief Justice John G. Roberts Jr.: Race is to stop discriminating on the basis of race.

Roberts made the comment in 2007 as part of a ruling reversing voluntary school desegregation plans in Washington and Kentucky states. And some might assume that the three Republican-appointed appeals court judges in Richmond weighing in on the Virginia case might be a receptive audience for comment.

But Judge Paul V. Niemeyer took the opportunity to explain why he thought Roberts’ formulation was insufficient.

“That’s a cute phrase,” said Reagan’s appointee to the United States Court of Appeals for the 4th Circuit. But in cases where juries identify racial discrimination, he said, “we offer remedies that … take race into account. … When you have discrimination and you create a particular remedy, it necessarily has racial aspects.

The exchange took place last week as part of a lawsuit involving anti-bias initiatives in Loudoun County public schools. Loudoun’s parents are suing “student equity ambassadors” charged with sharing examples of racial discrimination and bias with administrators, claiming the initiative discriminates against white conservatives and chills free speech.

The lawsuit reached the federal appeals court after a district court judge ruled in January that there was no constitutional violation in the case, only a disagreement over the priorities that should be addressed in within the school system.

The case is part of a backlash across the country against school programs intended to combat racism, with similar cases succeeding at the college level in several states.

The Loudoun program was created after a district-wide audit found that black, Latino, and Muslim students “were particularly affected by racial slurs or slurs, and even racially-motivated violent actions,” under the terms of a school board court case.

“The question is…how far back do you go” in looking at what constitutes racial discrimination, Niemeyer said. “It’s not an easy problem for us to solve.”

In pushing back on Roberts’ assessment of race in the desegregation case, Niemeyer pointed to laws governing workplace discrimination by private employers, which experts say conservatives in the Supreme Court and lower courts have not decided to rescind while rescinding broader racial protections in other areas. The Supreme Court in 2020 expanded its reading of workplace discrimination to include transgender people, a decision Roberts joined.

Some fear the Supreme Court will upend interpretations of protections that have been in place for decades.

“This extremely aggressive Supreme Court could reverse that precedent,” said Kenji Yoshino, a professor of constitutional law at New York University. “But at this time the lower courts are bound by that, not by the Chief Justice’s statement.”

Miranda McGowan of the University of San Diego School of Law said similar precedent to workplace protections applies in a school context.

“When a court finds that the government has in fact discriminated based on race [then] government can (and indeed to have to) shaping a race-conscious remedy to address racial discrimination,” she wrote via email. “What the Supreme Court has prohibited is action to address broader societal discrimination.”

The Loudoun case can be decided on narrower grounds. The three judges on the appeals court panel expressed skepticism that parents might challenge the program as racially discriminatory when none of their children had applied to be ambassadors. In a draft announcement made public, Loudoun County Public Schools described the ambassadorship as “specifically for students of color.” But at the time the program was implemented, white students could serve — and have since served — as ambassadors, the judges noted.

“I didn’t see where you pleaded that you were denied admission or barred or even that you wanted to … become a student equity ambassador,” said Trump-appointed Judge A. Marvin Quattlebaum Jr. , to the plaintiffs’ lawyer during the oral argument. . “You just have a disagreement with it.”

The program’s website states that students must have “a passion for social justice.” Daniel Suhr of the Liberty Justice Center said the students he represents as the plaintiffs “did not apply because they knew they would not be accepted”.

But judges were more open to the idea that school investigations into alleged student bias could chill free speech by encouraging, in Niemeyer’s words, “student-to-student denunciations” of school discussions. “stormy”.

Suhr said after the hearing that it was “encouraging that … the court has always recognized the importance of these free speech rights in the school context as much as in any part of our society.”

Andrew Selman, advocating for the school board, said there was no evidence students were disciplined over allegations of bias: ‘Chill has to be reasonable.’

In January, U.S. District Judge Anthony Trenga ruled that parents had failed to demonstrate that the school system’s diversity initiatives violated the First Amendment and the Equal Protection Clause of the U.S. Constitution.

“Although the specific course chosen by the [Loudoun County School Board] promoting a more inclusive and non-discriminatory environment can be reasonably debated, addressing the effects of unjust discrimination in the educational environment is clearly a legitimate pedagogical concern,” Trenga wrote. “Local school boards, not the courts, have a responsibility and an obligation to assess how best to advance these educational concerns.”


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