AG Jason Miyares petitions for merit award investigation report, drawing FCPS objection

The unexpectedly long-running saga of Fairfax County Public Schools’ delayed National Merit Scholarship commendation notices has added a new page.

Virginia Attorney General Jason Miyares has petitioned the Fairfax County Circuit Court to require FCPS to turn over the full report it commissioned from an outside law firm in January, killing any hopes school officials had that releasing a summary of the review’s findings would resolve the state investigation.

Filing an objection in court yesterday (Monday), FCPS says the report by Sands Anderson is confidential, and the attorney general’s subpoena request — which also seeks witness interview notes and transcripts — would violate its attorney-client privileges.

“Various FCPS teachers and staff were interviewed as part of this independent investigation. We owe it to them to do everything we can to protect their privacy and personal security,” FCPS Superintendent Michelle Reid said in a statement. “As the Attorney General knows, multiple FCPS staff members have been harassed and threatened over this issue.”

Miyares launched an investigation into FCPS in January after Coalition for TJ co-founder Asra Nomani published a story alleging that Thomas Jefferson High School for Science and Technology officials had deliberately delayed notifying students “commended” by the National Merit Scholarship Corporation (NMSC).

Nomani claimed the notices were withheld in a “war on merit,” preventing students from citing the honor in early college applications. Experts say the preliminary SAT scores used by the NMSC aren’t heavily considered in admissions decisions.

Initially focusing on TJ before expanding the investigation to all of FCPS, Miyares said the delayed notices could constitute discrimination violating the Virginia Human Rights Act, referencing the lawsuit over changes to TJ’s admissions policy.

Hired to conduct a review for FCPS in response, Sands Anderson found communication gaps, staff absences and other logistical errors, but there was no evidence that schools intentionally withheld the “commended” notices from students, FCPS reported in March.

In a statement, Miyares’s office called FCPS’ objection to sharing the full report evidence that the school system “believes it is immune from Virginia’s anti-discrimination laws.”

“FCPS now confirms it will only comply with the law when politically convenient,” Miyares spokeswoman Victoria LaCivita said. “No school system is above the law. If the report shows no wrongdoing, then FCPS should release it. Attorney General Miyares’s investigation into this matter will continue.”

Noting that it has standardized how schools notify students about NMSC recognitions, FCPS says sharing the requested materials would violate the privacy and, potentially, the safety of teachers and administrators interviewed by Sands Anderson.

The school system didn’t detail specific incidents but said it has alerted the attorney general “to this concern and…the severity of the threats.”

“Turning over these privileged materials to the Attorney General would set a troubling precedent and could undermine the willingness of others to cooperate with similar inquiries in the future,” Reid said.

LaCivita said that Miyares “values the safety of Virginians above all else, and expects that FCPS reported any credible threats to the proper authorities.”

In a court filing, attorneys representing FCPS also argue that Miyares hasn’t shown “good cause” for why a subpoena is needed, per Virginia law:

In particular, the Attorney General has not shown why it cannot conduct a full investigation with the facts already within its possession, or why it must have access to a law firm’s privileged report of the firm’s separate analysis of the same information. Nor has the Attorney General explained why it waited months after learning of the Sands Anderson report to subpoena this information.

“As we have already shared thousands of  documents related to this issue, the Attorney General’s office has all the facts it needs to complete its investigation,” Reid said.

The attorney general has been engaged in a similar court battle with Loudoun County Public Schools, which was recently ordered to share a report with prosecutors on its handling of two sexual assaults.