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Board Delays Vote, Seeks Legal Opinion

July 31, 2002

The fate of the amendment to the Fairfax County Public Schools' nondiscrimination policy will rest in the opinion of one man instead of 12 elected School Board officials.

The School Board was bombarded with hundreds of e-mails over the past two weeks both for and against adding sexual orientation to the school system's nondiscrimination policy, which protects employees, students and applicants from discrimination on the grounds of such things as race, sex, age or religion. At the request of At-large School Board member Rita Thompson, chairman Stuart Gibson (Hunter Mill) pulled the proposed amendment off the table Thursday, July 25, to seek an opinion from Attorney General Jerry Kilgore (R).

"About two weeks ago, questions were raised as to whether the board had the authority to enact this rule," Gibson said, citing the Dillon rule, which limits local jurisdictions' ability to enact legislation without prior approval of the General Assembly.

Gibson said there was only two ways the board could seek a legal opinion from Kilgore, the first was to go through the Commonwealth Attorney and the other was at the request of a General Assembly member. Del. Vincent Callahan (R-34) has agreed to make the request on behalf of the School Board, Gibson said.

Prior to deciding to seek Kilgore's opinion, the School Board sought and received an opinion from its own legal counsel. Gibson, citing confidentiality, declined to say what the board's attorney had concluded regarding the amendment.

THE MOVE TO PULL the amendment was met with little resistance from the other board members. Only At-large member Robert Frye, the originator of the proposal, criticized Gibson's decision.

"I object to the removal of the proposal. This was not a decision made by the board. It was a decision of the chair," Frye said. "This proposal is very basic. It is one about treating everyone fairly."

Frye said his experiences with racial discrimination have confirmed his commitment to eliminating all forms of discrimination.

"I remember as little boy, as a second-class citizen, visiting a separate-but-equal Washington D.C. and visiting the Jefferson Memorial. On the wall were the words, 'All men are created equal.' They are only a few little words, but they gave me hope," Frye said. "In making this proposal of just two words, we give hope to those in Fairfax County."

Kaye Kory (Mason), while not criticizing Gibson's decision, apologized to the audience, saying the board should have asked for the Attorney General's opinion beforehand.

Thompson and fellow at-large member Mychele Brickner said they supported Gibson in seeking the legal opinion.

"If it wasn't done now, it would have been done later by someone else," Thompson said.

THE FEAR OF A LAWSUIT prompted Gibson's decision.

"If we do something and we didn't have the power to do this and we get sued, what have we accomplished?" Gibson said. "Fact of the matter is, [the authority to enact the change] wasn't first raised until two weeks ago."

The amendment has recently generated reaction from the community even though supporters of the measure have been requesting the change for nearly a year.

Thursday night, more than 350 people packed the auditorium at Luther Jackson Middle School, where the School Board holds its meetings.

Beforehand, the Concerned Women for America's Culture and Family Institute, based in Washington D.C., staged a rally in front of the school building opposing the amendment. Supporters of the amendment moved inside the auditorium when the rally began. Several officers were dispatched because of the size of the crowd; there were no reported incidents.

Inside, the board heard from people, including teachers and parents, on both sides of the issue.

"Why would a School Board adopt a policy that opens the door to destructive influences on vulnerable, impressionable children? Because that's what adding sexual orientation will do," said Julia Flanagan, a Springfield resident who said she was “ex-gay.”

"It will open the door wide to adults, who will mislead children into thinking that the profound needs they feel for acceptance and nurturing are really a sexual identity they were born with, making it even harder for children to find the truth," Flanagan said.

Regina Griggs, executive director of Parents and Friends of Ex-Gays and Gays (PFOX), and mother of a gay son, said PFOX opposes the amendment because it opens the door for the harassment of ex-gays. She said studies show people are not born gay and no one is telling the children the truth about how they can change. PFOX also objects to the fact that the school system permits books in the libraries that she says promote what she called the “gay lifestyle,” but will not allow ex-gay materials.

"They say they want all people to be protected, but to the exclusion of ex-gays. They don't even want us to have a voice," Griggs, a resident of Mount Vernon, said. "All children should be free and protected. Sexuality is not a part of who you are. It's who you are attracted to. It's demeaning to gay people."

OTHERS SEE IT differently. Sandburg Middle School teacher Vincent Worthington told the School Board the policy change is needed.

"For whatever reason several students, mostly in my seventh-grade Spanish immersion course, came to the conclusion that I was gay and by early spring had begun a systematic personal attack upon me in the classroom, finding opportunities to say or write words such as queer, fag, homo, openly questioning my sexuality and making vulgar references to sexual acts," Worthington said.

Worthington said he tried sending the students to "time-out," but the attacks continued and became worse as more students joined in.

"I consulted with my department chair and began to write-up referrals instead of or in addition to time outs. Though administrators were aware of these problems, I felt like nothing was being done to alleviate this toxic atmosphere that was increasingly taking over my fifth period," Worthington said. "Needless to say, this situation caused me much stress, concern, frustration and rage. I do not ever want to be in a similar situation again and I do not think any teacher, staff member or student should have to function in such a hateful environment."

Robert Rigby, a Hayfield Secondary special education teacher and co-chair of the local Gay, Lesbian, Straight Education Network chapter, is confident the Attorney General will rule the School Board does have the power to enact the policy change.

"Given the research I did, I expect the Attorney General will say the School Board does have the authority to do this," Rigby said. "The School Board has the right to pass personnel policy."

Locally, the school boards for the City of Alexandria and Arlington County have already added sexual orientation to their policies and have yet to face a legal challenge nor did either jurisdiction seek authority from the General Assembly. The City of Alexandria changed its nondiscrimination policy in 2000 and recently amended it anti-harassment policy, said Rosemarie Webb, clerk of its school board. The Fairfax County School Board added sexual orientation to the anti-harassment policy, spelled out in the Student Rights and Responsibilities Handbook, last year.

Adrienne Carver, spokeswoman for Arlington County Public Schools, said the school board there added sexual orientation to its nondiscrimination policy in 1995.

In addition, Fairfax County added sexual orientation to its Standards of Conduct in 2000, said Merni Fitzgerald, the county's public affairs director.