Can a Virginia school board add 'sexual orientation' and 'gender identity' to its nondiscrimination policy, or does the Dillon Rule block it?

Plain-English summary

Virginia is a Dillon Rule state, which means local governments (including school boards) have only the powers expressly granted by the General Assembly, plus those fairly implied from those grants. In 2002, the Attorney General's office had told school boards they did not have authority to add "sexual orientation" to their nondiscrimination policies because the General Assembly had not specifically authorized it.

Senator Adam Ebbin asked Attorney General Herring whether that 2002 opinion was still good law in light of three developments: Article VIII, Section 7 of the Virginia Constitution, which vests "supervision of schools" in local boards; a 2006 AG opinion on concealed weapons that took an implied-powers approach; and the Fourth Circuit's 2014 Bostic v. Schaefer decision recognizing constitutional protection for same-sex couples.

Herring overruled the 2002 opinion. His core argument was that the Constitution itself gives school boards supervisory power, and that supervisory power necessarily implies the authority to decide that students and employees should not be discriminated against on the basis of sexual orientation or gender identity. The Virginia Supreme Court has recognized derivative powers under Article VIII, § 7 for "the safety and welfare of students," for "supervising personnel," and for "local policies, rules, and regulations adopted for the day-to-day management of a teaching staff." An antidiscrimination policy plainly fits within those categories.

Herring also pointed out a separate, narrower implication of Bostic v. Schaefer: school boards that offer marital benefits (like spousal health insurance) cannot treat same-sex married couples differently from opposite-sex married couples.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Virginia Human Rights Act and Virginia Values Act subsequently added statewide sexual-orientation and gender-identity protections, and federal interpretations of Title IX and Title VII (including Bostock v. Clayton County, 2020) substantially altered the federal-law landscape. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What was the 2002 opinion saying, and what did Herring change?

The 2002 opinion said Virginia school boards lacked authority under the Dillon Rule to add sexual orientation to a nondiscrimination policy, because no statute expressly gave them that power. Herring overruled that opinion. He concluded the authority was implied by the constitutional grant of supervisory power and by broad statutory grants in Title 22.1.

Did this opinion require any school board to adopt such a policy?

No. The opinion was permissive, not mandatory. It said boards could amend their policies if they chose. Individual school boards retained discretion to decide whether to expand their nondiscrimination policies.

What's the Dillon Rule and why did it matter?

Virginia follows the Dillon Rule, which means localities and school boards only have powers expressly granted, fairly implied, or essential and indispensable. The 2002 opinion read the Rule strictly; Herring read it through the lens of constitutional supervisory authority over schools.

Did Bostic v. Schaefer require school boards to recognize same-sex spouses for benefits?

Yes, in the marital-benefits context. Herring wrote that if a school board provides health-insurance benefits to spouses, it cannot treat same-sex spouses differently from opposite-sex spouses.

Did this opinion change what Title IX or federal anti-bias law required?

No. It addressed only Virginia state-law authority. Herring noted in a footnote that whether Title IX itself covers sexual-orientation discrimination remained an open federal question at the time.

Background and statutory framework

Article VIII, § 7 of the Virginia Constitution vests "the supervision of schools in each school division" in a school board. The Virginia Supreme Court has read that grant broadly, recognizing that supervisory power includes managing student safety and welfare, supervising personnel, and adopting day-to-day rules for the teaching staff.

The General Assembly has supplemented the constitutional grant with a series of broad statutory powers in Title 22.1, including:

• § 22.1-28: general supervisory authority over each school division
• § 22.1-78: authority to adopt bylaws and regulations for the management of the board's official business and the supervision of schools
• § 22.1-253.13:1: legislative finding that quality education requires "the appropriate working environment [and] the appropriate learning environment"
• § 22.1-253.13:7: requirement that boards promulgate standards of conduct to provide that public education be conducted "in an atmosphere free of disruption and threat to persons or property and supportive of individual rights"

Herring read these grants together to conclude that prohibiting discrimination based on sexual orientation or gender identity is well within a school board's discretion. He drew an analogy to the 2006 AG opinion concluding that the University of Virginia could prohibit concealed weapons on campus as an implied power "reasonably necessary" to its statutory authority over student and employee conduct. If the express statutory authority to regulate conduct implies the power to ban guns, the express constitutional authority to supervise schools implies the power to ban discrimination.

The opinion expressly overruled the 2002 opinion to the extent it was inconsistent.

Citations

• Va. Const. art. VIII, § 7 (school board supervisory power)
• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. §§ 22.1-28, 22.1-78, 22.1-253.13:1, 22.1-253.13:7 (school board powers)
• Va. Code Ann. § 22.1-208.01 (character education and bullying)
• Va. Code Ann. § 22.1-276.01 (definition of "bullying")
• Va. Code Ann. § 22.1-279.6(D) (codes of student conduct)
• Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014)
• Kellam v. Sch. Bd., 202 Va. 252 (1961)
• Bd. of Zoning Appeals v. Bd. of Supvrs., 276 Va. 550 (2008)
• Commonwealth v. Doe, 278 Va. 223 (2009)
• Riddick v. Sch. Bd., 238 F.3d 518 (4th Cir. 2000)
• Sch. Bd. v. Parham, 218 Va. 950 (1978)
• Russell Cnty. Sch. Bd. v. Anderson, 238 Va. 372 (1989)
• Bradley v. Sch. Bd., 462 F.2d 1058 (4th Cir. 1972), aff'd, 412 U.S. 92 (1973)
• 2002 Op. Va. Att'y Gen. 105 (overruled in part)
• 2006 Op. Va. Att'y Gen. 116

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/14-080_Ebbin.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
March 4, 2015
804-786-2071

The Honorable Adam P. Ebbin
Member, Senate of Virginia
Post Office Box 26415
Alexandria, Virginia 22313

Dear Senator Ebbin:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a 2002 Opinion of this Office, concluding that a school board does not have the legal authority to amend its nondiscrimination policy to prohibit sexual-orientation and gender-identity discrimination, is valid in light of Article VIII, § 7 of the Constitution of Virginia, this Office's 2006 Opinion concerning concealed weapons on college campuses, and the Fourth Circuit's recent decision in Bostic v. Schaefer. Your question implicates nondiscrimination policies with respect to both students and school employees.

Applicable Law and Discussion

School boards are "public quasi corporations that exercise limited powers and functions of a public nature granted to them expressly or by necessary implication." Virginia follows the Dillon Rule of strict construction, which "provides that municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable." A corollary to the Dillon Rule applies these constraints to local school boards. Because the General Assembly has never specifically authorized school boards to prohibit discrimination on the basis of sexual orientation or gender identity, school boards only have the authority to do so if that authority is fairly or necessarily implied from an express grant of power.

The Constitution of Virginia confers expansive power on local school boards. Article VIII, § 7 of the Constitution of Virginia provides that "the supervision of schools in each school division shall be vested in a school board." The Supreme Court of Virginia has made clear that the express supervisory power contained in Article VIII, § 7 necessarily includes a broad range of implied powers. For example, the Supreme Court has found that school boards' supervisory power necessarily includes derivative powers to regulate "the safety and welfare of students," "to supervise personnel," and to apply "local policies, rules, and regulations adopted for the day-to-day management of a teaching staff." No other local or state entity may encroach on the far-reaching scope of school boards' supervisory authority.

Regulating how a school system, students, and employees interact with and treat one another is a fundamental component of supervising a school system. A policy that allows some students or some employees to be treated differently from others necessarily implicates the welfare of students and supervision of personnel. These are areas that the Constitution of Virginia unquestionably empowers school boards to regulate. Thus, the authority to prohibit discrimination, including discrimination based on sexual orientation or gender identity, is a power fairly or necessarily implied from the constitutional duty to supervise the schools.

A 2002 Opinion of this Office concluded that school boards do not have the authority to prohibit discrimination because the General Assembly has not enacted legislation that would make explicit school boards' authority to do so. That Opinion, however, did not examine the powers of local school boards under Article VIII, § 7 of the Constitution of Virginia, the corresponding broad grant of statutory authority in § 22.1-28 of the Code of Virginia, other enumerated powers set forth in Title 22.1, or those that may be fairly implied from them. The Opinion also mistakenly analogized a school board's broad supervisory authority to a county's specific grant of authority under § 15.2-853 of the Code of Virginia.

In addition to the authority granted by the Constitution, school boards enjoy broad statutory powers. There is a broad grant of authority corresponding to the constitutional grant. The General Assembly has further authorized school boards to "adopt bylaws and regulations . . . for the management of its official business and for the supervision of schools." The General Assembly also has found that "quality of education is dependent upon the provision of . . . the appropriate working environment [and] the appropriate learning environment," and school boards are tasked with promulgating standards of conduct to "provide that public education be conducted in an atmosphere free of disruption and threat to persons or property and supportive of individual rights." It is well within the discretion of a school board to determine that prohibiting discrimination on various bases, including on the basis of sexual orientation or gender identity, is necessary to attain those goals.

The 2006 Opinion you reference in your opinion request supports this conclusion. In that Opinion, this Office concluded that the General Assembly's statutory grant of authority to the University of Virginia to regulate the conduct of students and employees gave the University the power to prohibit them from carrying concealed weapons on University grounds. That authority stems not from a specific enabling act of the General Assembly allowing universities to regulate weapons, but rather is an implied power "reasonably necessary to effectuate the powers expressly granted" to the University to "establish rules and regulations for the conduct" of its students and employees. That the General Assembly omitted university campuses from the list of places where a permitted-concealed weapon was barred did not prevent the University of Virginia from determining that the safety of its students and employees warranted prohibiting them from carrying such weapons. I similarly conclude that, like the authority of universities to regulate the conduct of their students and employees, the authority of school boards to protect students and employees from discrimination is a "reasonably necessary" derivative of the supervisory powers conferred upon school boards.

Finally, you ask about the impact of Bostic v. Schaefer on school boards' authority to prohibit sexual-orientation and gender-identity discrimination. Under the Fourth Circuit's decision in Bostic, same-sex couples must be afforded all the "rights and privileges of marriage" granted to opposite-sex couples. School boards therefore may not discriminate in the provision of benefits to employees who are married according to whether the employee's spouse is of the same or opposite gender. For example, if a school board provides health-insurance benefits to the spouse of an employee, the school board may not treat same-sex spouses differently from opposite-sex spouses.

Given the broad scope of the supervisory power granted to school boards by the Constitution of Virginia and the explicit statutory grants of authority to school boards, I conclude that school boards have authority to expand their antidiscrimination policies to encompass sexual orientation and gender identity. To the extent that the 2002 opinion previously mentioned is inconsistent with this Opinion, it is overruled.

Conclusion

Accordingly, it is my opinion that, because the power to protect students and employees from discrimination in the public school system is a power fairly implied from the express grant of authority to school boards under Article VIII, § 7 of the Constitution of Virginia and from the specific authority granted to boards by the General Assembly in §§ 22.1-28, 22.1-78 and 22.1-253.13:7(c)(3) of the Code of Virginia, the Dillon Rule does not prevent school boards from amending their antidiscrimination policies to prohibit discrimination on the basis of sexual orientation and gender identity. To the extent that the 2002 Opinion of this Office discussed above is inconsistent with this Opinion, it is overruled.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General