Loudoun Co. School Board asks Va. high court to overturn ruling that let grand jury continue

Last month, a Loudoun County Circuit Court judge ruled against the School Board’s lawsuit to halt a special grand jury convened by Attorney General Jason Miyares investigating the school system. This week, WTOP has learned, the board has appealed that ruling to Virginia’s Supreme Court.

Court records show Virginia’s highest court received the appeal from the school board’s attorneys on Tuesday. The basis of the appeal isn’t clear, as the board’s motion was filed under seal.

WTOP is seeking details on the appeal from the school board’s attorneys, John Cafferky, Robert Scully and Juli Porto. A school system spokesperson said Thursday that the issue of whether an attorney general has the authority to conduct a special grand jury investigation has wide-ranging implications for all school boards and local government bodies in Virginia.

Just over a month ago, on July 11, Loudoun County Circuit Court Judge James Plowman — who previously served as the county’s elected Republican commonwealth’s attorney — denied the motion by the School Board seeking to halt the special grand jury, which Miyares convened to look into how the school system handled two sexual assaults by the same high school student last year.

On Wednesday, attorneys representing Miyares’ office filed a motion opposing the board’s request to file the appeal under seal.

“The School Board’s counsel argued vigorously against sealing the courtroom and transcripts at the July 11 hearing,” according to the attorney general’s filing. At the time, Plowman agreed with the School Board, and the hearing was open to the public and media.

Solicitor General Andrew Ferguson said in the filing that the School Board “seeks to seal materials that are already publicly available.”

July’s hearing

In their lawsuit, school board attorneys Robert Falconi and Steven Webster argued the special grand jury wasn’t limiting its questions to potential criminal wrongdoing, and was focusing on things ranging from transgender issues to Facebook posts.

Quoting from the Virginia handbook for jurors, Webster said the special grand jury could “not be convened to go on a fishing expedition” or “to determine if a law is good or bad.”

Deputy Attorney General Steven Popps told Plowman that the special grand jury investigation was legal and constitutional.

“The School Board does not get to determine the scope of the investigation. The School Board is not above the law,” Popps said during the July hearing.

The board had argued there was no evidence of criminal wrongdoing, and the goal of the special grand jury was to release a report critical of school policies. The judge said he didn’t agree with the prediction of a report without indictments.

“You cannot know where this will lead,” Plowman said, adding members of the School Board would not be bound by the recommendations in a critical report. “They can turn their eyes and walk the other way.”

The promise to investigate the Loudoun County school system was a major premise of Gov. Glenn Youngkin’s campaign. On his first day in office he issued an executive order directing Miyares to begin the investigation. Miyares opened it the next day, and convened the grand jury in April.

At the end of the July hearing, Plowman denied the school board’s motion for a temporary injunction.

While the School Board had left open the possibility of an appeal, the filing in the Virginia Supreme Court was the first indication LCPS would take its case to the commonwealth’s highest court, rather than through the court of appeals.

Neal Augenstein

Neal Augenstein has been a general assignment reporter with WTOP since 1997. He says he looks forward to coming to work every day, even though that means waking up at 3:30 a.m.

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