Pioneering law prof offers legal strategy for Va. students denied National Merit award notices

Racial discrimination against predominantly Asian-American award winners is a long shot, but state courts have recognized "somewhat obscure" tort that gives juries wide leeway to find intentional injury that is "not justifiable," John Banzhaf says.

Published: January 20, 2023 6:06pm

Updated: January 22, 2023 11:26pm

As Virginia Attorney General Jason Miyares investigates potential civil rights violations in the widespread withholding of timely National Merit Scholar award notifications to students in suburban Washington, D.C., possibly on "equity" grounds, a local law professor known for public health crusades is floating a novel legal strategy for aggrieved students.

George Washington University's John Banzhaf says Virginia courts this century have recognized a "somewhat obscure" class of legal claims known as "prima facie torts" that don't depend on difficult-to-prove allegations such as intentional infliction of emotional distress or racial discrimination.

He told Just the News he's "reaching out to some individuals, as well as organizations," to suggest they represent students against their 17 high schools in Fairfax, Loudoun and Prince Williams counties, given that they can "probably" recoup attorney's and maybe contingency fees.

School officials have denied intentionally keeping the awards from students but haven't provided a clear explanation of how it happened. ABC News reported they have called the flubs an "oversight" and "a unique situation due to human error," which Miyares said has affected more than 1,000 students.

The cavalcade of errors "seems suspiciously congruent with the school system’s political ideology," Washington Post columnist George Will wrote Jan. 13, noting the Fairfax district had a $455,000 contract with an "equal outcomes" consulting firm.

The schools include nationally renowned Thomas Jefferson High School for Science and Technology, whose Principal Ann Bonitatibus complained in 2020 that the school's racial demographics weren't representative of Fairfax County Public Schools'.

Former Wall Street Journal correspondent-turned-education activist Asra Nomani broke the story in late December that TJHS notifications were withheld until after early college application deadlines passed and that the practice went back years, affecting her son. (The National Merit Scholarship Program depends on schools to notify winners.)

She has covered the steady dribble of revelations for The Fairfax Times, connecting the withholdings to the overrepresentation of Asian-American students among award winners in the school districts relative to their population

In a Friday report, Nomani noted that nearby Arlington County and Alexandria notified their National Merit Scholars on time. Her analysis shows those two districts have 10% or fewer Asian-American students among award semifinalists, roughly in line with their population in the district.

In contrast, about three-quarters of semifinalists in Fairfax, Loudoun and Prince Williams students are Asian-American, far above their 10-20% of the student population, Nomani said.

GWU's Banzhaf, who has taken on Big Tobacco and McDonald's in court, doesn't have high hopes for the Miyares investigation or litigation based on racial discrimination to provide students meaningful relief.

He told Just the News it would be a steep climb to prove that discrimination against students of Asian descent "was the primary motive," and such a suit would exclude non-Asian Merit Scholars from monetary awards. 

Intentional infliction of emotional distress would require proving not only distress but that it was in fact "severe" and was intended to cause such severe distress, Banzhaf wrote in an email.

In keeping with the reputation of a man who used a "16th century writ" to sue former Vice President Spiro Agnew for taking bribes, Banzhaf argues the prima facie tort gets around the problems of more conventional torts for this situation. It was successfully used in lawsuits against a pest control company in Fairfax County in 2011 and home builder in exurban Culpeper County in 2019.

The tort is applicable to "one who intentionally causes injury to another" through conduct that is "generally culpable and not justifiable under the circumstances," a catchall condition for a "wide variety of unforeseen and perhaps unforeseeable circumstances," Banzhaf said. 

Local TV station WJLA noted that Fairfax County Superintendent Michelle Reid described her life's work as ensuring "equitable opportunities and equal outcomes for each and every student she’s had the opportunity to serve."

A jury could therefore determine that in pursuing fulfillment of her life's work Reid deliberately prevented students from timely submitting their strongest college applications and obtaining "badly-needed financial scholarships," making her generally culpable and her actions not justifiable, Banzhaf said.

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