(Updated at 4:05 p.m.) A Fairfax County Circuit Court judge dismissed a case today (Friday) that sought to recall Dranesville District School Board Representative Elaine Tholen.
Tholen’s legal team had argued against letting the case continue in court, which came after a parents’ group called Open FCPS Coalition collected and submitted over 5,000 signatures to protest school closures during the pandemic.
“Citizens who disagree with elected officials’ policy choices should vote for someone else in the next election, not ask courts to yank them from office,” Tholen’s legal team previously argued in seeking to dismiss the case.
The group, which has received funding in part from a former Republican gubernatorial candidate and a nonprofit committed to with center-right policy advocacy, voiced opposition to how the school board handled the closures. A petition submitted to court argued that keeping schools closed hurt children with disabilities the most.
The legal team for Tholen, who represents Dranesville District, argued in part that the lawsuit contained “no allegations that comes close to showing that Tholen acted with ‘wilful,’ ‘evil’ or ‘corrupt’ intent.”
“We are very pleased that the Court dismissed this case and saw it for what it was – an attempt by a small number of people to substitute their judgment for that of the full elected School Board,” a Fairfax County School Board spokesperson said in a statement. “We look forward to a full, five-day schedule of in-person classes starting next week.”
Democrats weighed in on the matter Friday.
“Republican operatives are leading these so-called ‘bi-partisan’ groups seeking to overturn the democratic election of our officials,” Fairfax County Democratic Committee Chair Bryan Graham said in a statement Friday afternoon. “The pandemic has caused a difficult situation for all of us, and our school board has done a tremendous job balancing the need to keep our community safe while serving the education needs of our students” and more.
Statement from FCDC Chair @BryanGrahamVA on the Failed Attempt to Overturn the 2019 Election of Elaine Tholen
⬇️READ NOW⬇️ pic.twitter.com/JceVbl6Eq5
— Fairfax Democrats (@FairfaxDems) August 20, 2021
Del. Marcus Simon, a Democrat whose office covers part of Tysons, called the dismissal a signal that recall efforts are a waste of time and resources. He said on Twitter that the “statute is being misused to frivolously harass elected officials by a small minority” of constituents.
Open FCPS Coalition had also been collecting signatures to recall two other school board members, Member-at-Large Abrar Omeish and Springfield District Representative Laura Jane Cohen. The group previously said those members were chosen because those representatives gathered the least amount of votes, which lowered the amount of signatures needed to file recall efforts.
When it submitted the petition for Tholen on July 19, Open FCPS Coalition said only one school board member, Megan McLaughlin, advocated for reopening in a way that it felt was consistent and a priority.
The petition required that a special prosecutor to handle the case. Commonwealth’s Attorney James Hingeley of Albemarle County was appointed to that role on Aug. 10.
“[Hingeley] concluded that he could not prosecute the recall petition because it did not have a sufficient basis to move forward,” the school district said in a statement. “So, he moved to dismiss the petition and the judge granted the motion to dismiss.”
In a statement, Open FCPS derided Hingeley’s decision to request a dismissal as evidence of politics being put ahead of children’s well-being.
“It is a shame that the voices of thousands of parents have been silenced by a Commonwealth’s Attorney, who just like the School Board, is more interested in politics than the wellbeing of our kids,” Open FCPS Coalition founder Dee O’Neal said. “Hingeley chose special interests over parents and children who deserved representation.”
In a statement, Tholen called the legal case “an ordeal” but said she was glad she could now focus her attention on the students who will return for five days a week of in-person learning on Monday (Aug. 23).
“I am excited to say, we have over 180,000 students starting school next week. Those students need our full attention to keep them safe and to give them the best education possible,” she said. “They are still suffering in a pandemic, just like the rest of us. Please, let us put these divisive events behind us and work together to give our students the positive, undivided attention they deserve.”
Fairfax County Public Schools has implemented a universal masking rule and announced earlier today that staff will be required to be vaccinated by late October.
A group of parents submitted over 5,000 signatures yesterday (Monday) to the Fairfax County Clerk of Court in a petition to recall Fairfax County School Board member Elaine Tholen, who represents the Dranesville District, over school closings during the COVID-19 pandemic.
The Open FCPS Coalition formed in the fall to protest Fairfax County Public Schools going virtual during the pandemic and has been campaigning to recall Tholen and two other school board members, Member-at-Large Abrar Omeish and Springfield District Representative Laura Jane Cohen.
“I look forward to continuing to earn my constituents’ trust and support as we prepare to welcome all students in person five days per week,” Tholen said in a statement. “As a former classroom educator and now a school board member, I have always worked for my students’ well-being and to help them reach their utmost potential. I will continue to put our students’ best interests first.”
Recall supporters have a different perspective.
The petitions that citizens signed argue that, in supporting an all-virtual start to the most recent school year, the school board was not acting in children’s best interests. The petitions also allege the school board violated state and local laws and regulations guaranteeing students with disabilities a free, appropriate education.
“Just how far behind are our students? How will these deficits be met?” Zia Tompkins, a coalition board member and former school board candidate, said, raising questions about staffing and other issues. “Parents have been left in the dark about these issues and…as such have real doubts as to whether the Fairfax County school system is even serious about opening full-time in-person for the fall.”
The group met outside the Fairfax County Courthouse before a dozen supporters and leaders went inside to deliver the signatures.
While the Open FCPS Coalition describes itself as a grassroots, bipartisan group concerned with keeping politics out of schools, its largest funding contributions have come from former Republican gubernatorial candidate Pete Snyder and N2 America, a nonprofit dedicated to advancing center-right policies in the suburbs.
The coalition’s largest expenditure has been for signature collection services from a center-right door-to-door voter contact firm, Blitz Canvassing LLC, according to the Virginia Public Access Project.
The group hopes a judge will review the signatures as part of a trial that could ultimately lead to Tholen being removed from her position.
Open FCPS Coalition says only one school board member, Megan McLaughlin, advocated for reopening in a way it felt was consistent and a priority. But only three school board members were chosen for recall efforts because of the group’s limited resources.
Coalition board member Nellie Rhodes said Monday that work to recall Cohen and Omeish continues.
The coalition’s website says it has over two-thirds of the 4,000 signatures needed to recall Cohen, which if obtained, would represent over 10% of the total number of people who voted in her election — the threshold required for a recall to be considered in Virginia.
After shifting entirely to virtual learning on March 13, 2020, FCPS began phasing in some in-person learning in October, but the process was put on hold when COVID-19 cases started to surge around Thanksgiving.
Students began 2021 in remote settings before the school board approved the return of a hybrid model — where students could opt for two days of in-person classes or to remain all-virtual — starting on Feb. 16. FCPS expanded its in-person offerings to four days for some students in April.
Open FCPS Coalition board member and Vienna resident Hemang Nagar says he ended up taking his daughter, who is on the autism spectrum, out of school in the fall because of the distress virtual classes caused her. He said she used to love school but would cry whenever he opened the computer.
“Virtual learning was an utter disaster for her and so many like her,” he said.
His daughter, who is now 10, returned to her elementary school when in-person classes restarted in February.
“They pretend to care but never put their words into action that does any good for any students,” Nagar said of the school board members that the coalition is targeting for recalls.
FCPS plans to resume a five-day in-person week for students this fall.
