The Virginia Business Litigation Blog
Virginia courts exist to resolve disputes between litigants. They’re there to apply the law to a set of facts established by the evidence and declare and enforce the parties’ respective legal rights. Courts aren’t required to offer advisory opinions on abstract legal questions when there isn’t an actual controversy between the parties. Under the mootness doctrine, if the issues under a court’s consideration cease to be “live,” or the parties before it “lack a legally cognizable interest in the outcome,” the case becomes moot and the court will dismiss it. (See McCarthy Holdings LLC v. Burgher, 282 Va. 267, 275 (2011)). There are some exceptions to the rule, but as demonstrated by an opinion issued last month in Doe v. Fairfax County School Board, the mootness doctrine is applied stringently.
Anonymous petitioner “Jane Doe,” a high-school senior at the time, sued the school board for various alleged civil rights violations, claiming she was subjected to religious discrimination, sex discrimination, and viewpoint discrimination while attending school. She asked the court to award both declaratory and injunctive relief. Shortly after filing the lawsuit, however, she graduated.
Considering the student was no longer subject to the school’s policies, the school board moved to dismiss the case for mootness, arguing that there was no longer a live controversy between the parties. Jane Doe insisted on proceeding with her case, raising three possible exceptions to the mootness doctrine: (1) claims for damages survive mootness challenges; (2) facial challenges for overbreadth cannot be moot; and (3) the public interest weighs against application of the doctrine. The court rejected all of these arguments with respect 
to the claims for declaratory and injunctive relief (the only claims at issue in the motion to dismiss).
1. The claims for declaratory and injunctive relief were moot despite the fact that the petitioner claimed money damages.
First, the court found that because Jane Doe had already graduated from the FCPS system, the declaratory and injunctive remedies she was requesting wouldn’t actually redress her alleged injury. Other cases have already held that a claim is moot if the requested relief does not redress the petitioner’s injury. (See Wallerstein v. Brander, 136 Va. 543, 546 (1923)). Jane Doe was asking the court to prohibit the school system from enforcing certain policies, but she was no longer subject to those policies and therefore wouldn’t be affected by the requested injunction. While it may be true that a student’s claim for money damages wouldn’t necessarily be mooted by the student’s graduation, the claims for declaratory and injunctive relief were moot despite the fact that the petitioner claimed damages.
2. A First Amendment overbreadth claim does not override mootness.
The overbreadth doctrine provides that if a law regulating speech is written so broadly that it prohibits protected as well as non-protected speech, it will be declared unconstitutional and unenforceable. The doctrine provides an exception to the litigation requirement that a plaintiff has standing to bring a particular claim; if a statute is unconstitutional on its face, it can be challenged in court even by a plaintiff without standing. Significantly, however, this exception does not apply to mootness. The court therefore ruled that because the claim was moot, the overbreadth argument was irrelevant.
3. Virginia hasn’t recognized a public interest exception to mootness.
Some states recognize an an exception to mootness if the question (1) is of a public nature; (2) requires authoritative determination for future guidance of public officers; and (3) has a likelihood of future occurrence. (See State ex rel. M.C.H. v. Kinder, 173 W. Va. 387, 389 (1984)). Virginia is not one of those states. It does recognize an exception when an issue is “capable of repetition, yet evading review” (see Commonwealth v. Browne, 303 Va. 90, 95 (2024)), but that exception would apply here, the court reasoned, because the student had graduated and would thus never again be subject to the school policies she was challenging.
The court granted the motion to dismiss, finding that the claims were moot considering the petitioner’s alleged injury “would not be remedied by an injunction on [the challenged] policies or by a declaratory judgment finding the policies unconstitutional.”