Board considering removing public comment periods from work sessions
The Albemarle County School Board’s newly hired legal counsel will determine the division’s ability to ban Confederate imagery or any other symbols that schools deem to be objectionable, according to a spokesman.
The board’s Aug. 23 work session was adjourned after it was disrupted by audience members upset with a dress code proposal that did not include a ban. Activists then chanted “shame” as School Board members and administrative staff left the conference room in the County Office Building-McIntire.
“The fundamental issue is that we need to have a quiet environment so we can hear the speakers, and the speakers can be heard,” School Board Chairwoman Kate Acuff said Tuesday.
Acuff now says the School Board is considering removing public comment periods from its work session agendas. The School Board typically holds one work session and one regular meeting each month.
The agenda for Thursday’s make-up meeting does not include time for public comment. It also does not include a discussion of the dress code, though board members are scheduled to hear an update on an anti-racism policy being drafted by students.
Virginia’s Freedom of Information Act does not include the right for citizens to comment during meetings.
“Any kind of audible demonstration interferes with our civil discourse,” Acuff said. “If people are going to misbehave, we have to find a way to get them out of the room.”
School division spokesman Phil Giaramita said there are many venues for communicating with the School Board outside of meetings, including email correspondence, committees and focus groups.
“You have to strike a balance between [allowing public comment] and responsibly managing the business of school division,” Giaramita said. “The School Board has had guidelines in place for many years that have worked well. But they only work well if people abide by them.”
Heading into Thursday’s make-up meeting, however, the School Board and the Hate Free Schools Coalition of Albemarle County remain at an impasse over the dress code.
[The School Board’s] inability to listen to their community, and the way that they disengaged with us just because we had an emotional message, really grew our movement,” said Lara Harrison, a coalition co-founder. “We have a lot of work to do, and we’re not going anywhere.”
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There is much legal precedent regarding specific dress code bans, but Albemarle County has been burned in court before.
In a 2003 case, Newsom v. the Albemarle County School Board, the county schools lost a $150,000 lawsuit to a sixth-grade student at Jack Jouett Middle School who had been told by the administration he couldn’t wear a National Rifle Association shirt. The shirt had silhouettes of men pointing guns across the NRA logo. The settlement awarded to the student was not disclosed.
The county is again preparing for the potential legal issues of a dress code update. Last week, the School Board hired Ross Holden as its new legal counsel. Holden, a University of Virginia graduate, currently is the executive vice president and general counsel for the New York City School Construction Authority.
Charlottesville City Schools does not include a specific ban on Confederate symbols in its dress code. The Ivy Creek School, a public special education program that serves Albemarle, Charlottesville and surrounding counties, does.
“[Ivy Creek has] a separate governing body and policies that fit their school community,” Giaramita said. “Not every one of their policies are commonly appropriate for [both] their school and our school division.”
In the 1965 case Tinker v. Des Moines, the U.S. Supreme Court ruled that public school students are protected by the First Amendment unless their speech or expression would cause a substantive disruption to the learning environment.
“Is the disruption of the learning environment a fight in the cafeteria, or is it the emotional health of kids who are in the school,” Acuff said. “One would have to make that argument that [the Confederate battle flag] has caused demonstrable harm by its very presence. Courts have not found that so far.”
Several federal court cases have upheld school divisions’ bans of the Confederate flag in the 21st century, although none went before the Supreme Court.
In Scott. v. School Board of Alachua County, the U.S. Court of Appeals for the Eleventh Circuit ruled in 2003 that it was “constitutionally allowable for school officials to closely contour the range of expression children are permitted regarding such volatile issues.” Officials from the Florida school district presented evidence of racial tensions in the district, including fights which appeared to be racially motivated.
In Defoe v. Spiva, the U.S. Court of Appeals for the Sixth Circuit in 2010 allowed the Anderson County, Tennessee, school district to ban the Confederate flag, citing the frequency of race-based bullying and intimidation in its schools. One judge who presided over the case argued that “… racial tension obviously interferes with learning in ways that even strongly-held political views do not.”
In 2013, the U.S. Fourth Circuit Court of Appeals upheld the Latta, South Carolina, school district’s ban of Confederate flag images on student dress. This court has appellate jurisdiction over Albemarle.
Latta’s ban was challenged in a lawsuit by a student who wore T-shirts displaying a variety of Confederate themes over several years.
Other school divisions around the U.S. also have banned the Confederate flag, but they have not been challenged in court.
Acuff said she was uncertain whether the school division had enough proof to convince a judge that racial tensions were prevalent in its schools. She said the county’s high school principals reported seeing only a few baseball caps with Confederate flag imagery when schools opened last week.
“The incidents have gone down since last August; people now have a heightened sensitivity to it,” Acuff said.
Harrison said county schools displayed “willful ignorance” of racist incidents, adding that the deadly white supremacist rally in Charlottesville last year was enough context to show that a Confederate flag could cause disruption and harm in local schools.
“That is legally proven, given the context of the white supremacist culture we live in and the white supremacist rally and murder that took place here one year ago,” Harrison said.
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A vote on changes to the dress code has been postponed until a new anti-discrimination policy is finalized. The division’s Office of Community Engagement is working with a group of high school students and a consultant to bring a draft of the policy before the School Board this fall.
“I think everyone on the School Board is concerned about how to promote positive school climate and combat the impact of discrimination or racism, or worse,” Acuff said. “Even if we immediately ban Confederate symbols, that would not go to the root of the issue.”
The Hate Free Schools Coalition agrees with Acuff on this point.
“Hate Free Schools Coalition knows that a policy isn’t going to change the culture of racism within the school district,” Harrison said. “We formed to hold the school division accountable to dismantling systemic racism in all of its forms.”
Harrison said the coalition has requested for the school division to hold a town hall meeting on the Confederate imagery issue.
“We want them to show that they care, and that they are listening to us,” Harrison said. “I’d like them to look my son in the eye and tell him he has to have that flag in his school.”
