Where a woman sued the Spotsylvania County School Board and its members over their decision to reintroduce books into school libraries that she found objectionable, they were entitled to sovereign immunity.
Background
Jennifer Petersen filed a petition for a writ of mandamus and declaratory and injunctive relief against the Spotsylvania County School Board and its members. The former superintendent of the public school system had previously directed the removal of certain books containing objectionable subject matter from public school libraries.
But, in January of 2024, the school board voted to return the previously removed books to public school libraries. Petersen alleged that the objectionable books contained sexually explicit material inappropriate for children and that the school board’s decision to reintroduce the books in the school libraries violated its own policies, as well as various state and federal statutes. The circuit found that the school board and its members were each entitled to sovereign immunity.
Analysis
Sovereign immunity applies to both “[t]he Commonwealth and its agencies.” School boards, despite being “public quasi corporations” that act at a local level, are state agencies for purposes of the doctrine. Thus, “[s]chool boards are covered by sovereign immunity.” “‘And because the Commonwealth can act only through individuals,’ the doctrine of sovereign immunity ‘applies not only to the state, but also to certain government officials,’” including “school officials acting in their official capacities.”
“The Commonwealth, however, can waive sovereign immunity and consent to being sued in its own courts.” Waiver occurs in two instances: 1) “where statutory language ‘explicitly and expressly,’ allows a private right of action,” and 2) “where a constitutional provision is ‘self-executing.’” Because the school board is entitled to immunity, the question in this case is whether there is any statutory or constitutional waiver of that immunity here.
Petersen points to Code §§ 8.01-195.2, 9.1-706, 15.2-1405 and 22.1-71 as allowing a private right of action that waives the school board’s immunity, but none of them does so. Code § 22.1-71 provides, in relevant part, that a school board “may sue, be sued, contract, be contracted with and, in accordance with the provisions of this title, purchase, take, hold, lease and convey school property, both real and personal.” The Supreme Court of Virginia previously held that almost the exact same language in a different statute did not waive sovereign immunity.
Code §§ 8.01-195.2 and 9.1-706 do not waive the school board’s sovereign immunity either. Petersen correctly asserts that Code § 9.1-706, which is located in a series of statutes that cover overtime compensation for certain emergency employees, affirms the immunity of the Commonwealth of Virginia: “The immunity of the Commonwealth and of any ‘agency’ as defined in § 8.01-195.2 is hereby preserved.” But Petersen claims that the immunity of a school board is not preserved because school boards are not defined as an “agency” under Code § 8.01-195.2, a part of the Virginia Tort Claims Act, or VTCA. Not so.
Code § 9.1-706, which specifically preserves sovereign immunity for the Commonwealth and its agencies, does not operate to mean that Code § 8.01-195.2’s exclusion of school boards from the definition of “agency” waives the immunity of school boards. The VTCA waives only the Commonwealth’s sovereign immunity and does not disturb the immunity of agencies. Neither does the VTCA waive the immunity of school boards.
Citing to Code § 15.2-1405, Petersen asserts that sovereign immunity is waived in cases of gross negligence. But Petersen did not allege a gross negligence claim, nor would such a claim waive the school board’s sovereign immunity.
Finally, Petersen argues that “sovereign immunity only applies to governmental functions for the benefit of the govern[ed].” She argues that because “the material contained in the books [is] harmful to minors” and because members of the school board received campaign donations from entities associated with the effort to return books to the school library, this renders the action to be not governmental and therefore not subject to sovereign immunity. This court disagrees.
An act is governmental if “the decision-making process . . . entails the exercise of discretion.” Making decisions about which books to return to the school was part of the decision-making process that the school board conducted in furtherance of its authority to manage public schools. Thus, the school board is entitled to sovereign immunity for this governmental act.
Affirmed.
Petersen v. Spotsylvania County School Board, Record No. 1986-24-2, May 26, 2026. CAV (unpublished opinion) (per curiam). From the Circuit Court of Spotsylvania County (Glover). (Jennifer Petersen, on briefs), pro se. (W. Thomas Chappell; Sophia L. Arnold; Woods Rogers Vandeventer Black PLC, on brief), for appellee. VLW 026-7-222. 9 pp.
Full-Text Opinion
VLW 026-7-222