School Division Attorney Clarifies Scope of Grand Jury Subpoenas

A special grand jury given broad authority to investigate Loudoun County Public Schools has reportedly backed off a request that would have provided access to some students’ confidential educational records.

The Loudoun Circuit Court in April imposed a special grand jury to investigate the school system’s handling of a sexual assault scandal. Judge James E. Plowman is overseeing the special grand jury. Sources with knowledge of the proceedings said that Plowman gave the jury latitude to investigate matters beyond just the sexual assault scandal, including anything related to the school division.

The group Equality Loudoun raised alarms late last week after parents, including the parents of a transgender student, received a notification under the Federal Education Rights and Privacy Act that their child’s records had been subpoenaed by the Office of the Attorney General.

According to the notice from the school system’s legal counsel, “The grand jury subpoena’s search request resulted in several unrelated student records, which include records of your child […] that may have to be disclosed.” The letter to parents, dated May 4, informed them if they wished to try to protect those records they would have to do so before May 10.

According to Equality Loudoun President Cris Candice Tuck, the grand jury had requested documents relating to “transgender policy.” The family sought to file an injunction to protect their child’s private records, and were notified they would have to file injunctions for each document. The parents also asked that the officials handling the case redact their child’s name and identifying information, but the school system informed the family that those requests were denied.

“Regardless of a student’s identity, any request for private and sensitive student records in this context can be dangerous. We will continue to hold accountable those who seek to conflate our LGBTQ+ community, especially students, with the horrific occurrences of assault in 2021,” Tuck stated. “This is the ultimate parent’s rights issue, and we challenge all organizations who claim to care about students to stand up in defense of parents and families who are seeking the protection and privacy of children from government overreach.”

Following that outcry, according to Equality Loudoun, the family’s legal counsel was told that the statement did not apply to student records after all, and that investigators would not pursue the subpoena for those records.

In an update to the School Board on Tuesday night, Division Counsel Robert Falconi said his office is working to notify the parents of any students whose names come up in material being subpoenaed so they may seek protective action if needed.

On Wednesday, I have issued a division-wide notice advising staff members who receive subpoenas to allow his office to review any relevant material to ensure that students’ rights are protected. He said he isn’t informed by the Attorney General’s Office of all subpoenas issued.

“Subpoenas are really scary, and they usually say that if you fail to comply with the subpoena you could be fined or put in jail and employees may genuinely believe that the appropriate way to handle that is just to comply and send it along without running it. by my office. Of course, the primary purpose of bringing these documents to me is to ensure that LCPS is complying with its legal obligations regarding student privacy,” Falconi said.

He said he was aware of only a few subpoenas requesting elementary or high school records of specific students. “Before we comply with any subpoena, we also notify the parents of the student … so that those parents can take protective measures before those records are produced,” he said.

“I personally have not seen any subpoenas that specifically request the identity of any transgender students or any other LGBTQ students. And, of course, if we do receive such subpoenas, we will let you know or let the families know that we have with enough time so that they can take protective action the same way as we would in any other subpoena that would otherwise request the production of student records,” he said.

Other subpoenas are much broader, seeking records related to certain terms, including “sexual assault,” “Facebook,” “Title IX,” and “Policy 8040,” which concerns transgender students. So far, about 40 students have been caught up in those records, he said.

The school division has reportedly hired attorney Steven T. Webster of Webster Book LLP in Alexandria to handle its involvement in the special grand jury. Webster has worked as a civil and criminal trial lawyer for over 30 years, including government investigations.

Because the investigation is criminal in nature, the division’s liability insurance provider, VACORP, is reportedly not covering the legal fees associated with the special grand jury.

When news of the special grand jury broke, Public Information Officer Wayde Byard released a sharing statement that Loudoun County Public Schools intends to cooperate “with the lawful requests of the special grand jury, while protecting the privacy rights of our students to the extent permitted by law and in accordance with all applicable legal privileges.”

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