Appeals court revives Virginia school boards’ suits against Trump administration over transgender policy threats

A split federal appeals court panel on Thursday revived two Virginia school boards’ lawsuits against the Education Department challenging threatened federal funding changes over their policies concerning transgender students.

It wipes a judge’s finding that school boards in Fairfax County and Arlington County — located in the suburbs of the nation’s capital — sued in the wrong place and needed to raise their arguments before a specialty court with exclusive authority to hear government contract disputes.

The U.S. Court of Appeals for the 4th Circuit voted 2-1 that it was improper, but the majority stressed it was going “no further,” and it has yet to be seen whether the counties’ lawsuits will succeed.

“Because the school districts have asserted some claims that are not at their essence contractual, the district court erred in dismissing these complaints in full for lack of jurisdiction,” U.S. Circuit Judge Allison Jones Rushing wrote.

The school boards sued last year after the Trump administration placed them in “high-risk status” over their refusals to change policies that allow transgender students in the bathrooms and locker rooms of their choosing.

The designation means Education Department grants can be done only by reimbursement, not in advance.

Rushing, a Trump appointee, was joined in the majority by U.S. Circuit Judge Albert Diaz, an appointee of former President Obama. U.S. Circuit Judge Julius Richardson, a Trump appointee, dissented.

“Strip back the veneer, and the districts’ claims are simple: They want their contractual payments made in advance, as before,” Richardson wrote. “Those claims are founded upon contract, and Congress has assigned them to the Court of Federal Claims.”

He sided with the lower judge in the case, Rossie Alston, a Trump appointee. They pointed to recent Supreme Court emergency decisions chastising judges in other cases who’ve not diverted plaintiffs who’ve tried to bring contractual disputes into federal district courts.

Earlier this year, Rushing agreed that was the case for a lawsuit concerning agricultural grants. But on Thursday, she said some of the school boards’ claims can move forward.

“In sum, the district court erred by concluding that the recent injunction decisions dictated that it lacked jurisdiction over all the claims in these complaints as a whole,” Rushing wrote.

The Hill has reached out to spokespeople at the Education Department and the school boards for comment.