The Supreme Court of Virginia Clarifies the Scope of Legislative Immunity for School Board Members

Earlier this month, the Supreme Court of Virginia issued an Opinion in Brooks-Buck v. Wahlstrom, No. 250246 (Oct. 16, 2025), that clarifies the scope of legislative immunity for school board members. The Opinion also serves as a cautionary reminder to school board members that the immunities they enjoy are not limitless.

Factual Background

In this case, a citizen sued two school board members in their individual capacities (i.e., did not sue the school board as a whole) for defamation and defamation per se. The citizen alleged that the two board members drafted a disciplinary complaint against a third board member and circulated it among the other board members and the superintendent. Included in the disciplinary complaint, the citizen alleged, were a number of defamatory statements against her as well. In response to the citizen’s lawsuit, the two board members claimed they were entitled to legislative immunity for those statements because the statements were made in the context of disciplining a board member. The board members also argued they were immune based on sovereign immunity and statutory immunity under § 8.01-223.2 of the Code of Virginia, often referred to as Virginia’s anti-SLAPP statute.    

Noteworthy Legal Context

Legislators in Virginia’s local public bodies, such as school board members, are protected from lawsuits by legislative immunity when they are performing legislative functions. The purpose of this immunity is to encourage candid debate and preserve the independence of legislative bodies. Statements made in the course of performing legislative functions are therefore absolutely immune from claims of defamation and defamation per se. Prior to the Court’s Opinion in this case, it was not settled under Virginia law whether disciplining a board member was a legislative act for which legislative immunity could apply.

The Court’s Analysis

The Court agreed that initiating disciplinary proceedings against a fellow board member is a legislative act because such proceedings preserve the institutional integrity of the legislative body. However, the Court held that legislative immunity did not automatically extend to statements about a third party (here, the citizen) included in disciplinary documents. Such statements could be gratuitous and nonessential to the disciplinary proceeding, and, if found to be so, they would fall outside the scope of legislative immunity. The Court sent the case back to the trial court for additional factfinding to make this determination.

Regarding the board members’ sovereign immunity argument, the Court held that the board members were not entitled to sovereign immunity in their individual capacities for the intentional tort of defamation. My colleague Jessica Berdichevsky recently explained sovereign immunity and the significance of official/individual capacity here.

The Court similarly held that the board members did not have statutory immunity under the anti-SLAPP statute because the citizen alleged that the board members knew or should have known that their statements against her were false, or that they recklessly disregarded the truth.

It’s important to note that this decision was based on preliminary pleadings, and the Court had to accept as true all of the facts alleged by the citizen. This Opinion does not reflect the final outcome of this case, which will now go back to the trial court for more factfinding to determine definitively whether either of the board members are entitled to legislative, sovereign, or statutory immunity.

Key Takeaways

• Legislative immunity extends to board member disciplinary proceedings, but it does not cover statements unrelated or nonessential to that process. It’s therefore best to limit disciplinary narratives to facts necessary for the proceeding and to avoid commentary on private citizens or unrelated disputes if possible.
• Not all immunities are equal. By analyzing legislative, sovereign, and statutory immunities potentially available to school board members under the same set of alleged facts, this case is helpful in highlighting the different applications of each. For example, legislative immunity can protect from an intentional tort, but sovereign immunity cannot if members are sued in their individual capacities. Understanding what immunities apply when and the scope of protection that each provides will allow boards to properly analyze risk and exposure and make informed decisions when facing litigation.
• Questions of immunity remain fact dependent. As the Court noted, whether the board members have legislative immunity for their statements depends on whether those statements were relevant and essential to the disciplinary proceeding. When dealing with board member disciplinary proceedings—or any board issue in which immunity may apply—boards are well advised to work closely with counsel to ensure that no potential immunities are compromised.

If you have any questions, please contact one of our School & Education Law Attorneys.

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