In the 1960 case of Kellam v. School Board of the City of Norfolk, the Supreme Court of Virginia affirmatively held that school boards are protected from suit for tortious claims by the doctrine of sovereign immunity. Kellam, 202 Va. 252 (1960). Over the ensuing sixty-five years, this doctrine has been challenged repeatedly by those seeking to sue the sovereign and recover money damages for allegedly tortious acts and omissions. Such challenges attempt to differentiate Kellam and its progeny on factual differences and arguments that school boards' immunity should be limited. Forty years ago, the Supreme Court of Virginia again affirmed that sovereign immunity "is alive and well in Virginia." Messina v. Burden, 228 Va. 301 (1984). On May 8. 2025, the Supreme Court of Virginia affirmed school boards' sovereign immunity once again.
After the circuit court denied sovereign immunity to the Newport News School Board in the case of Z.M., a minor, v. Newport News School Board, et al, the Supreme Court of Virginia granted an expedited petition for review of the circuit court's decision under Virginia Code §§ 8.01-626 and 8.01-670.2, bypassing the Court of Appeals. In that case, Z.M. argued that since his alleged injuries took place on a school bus, that his claims could proceed against the School Board under Va. Code §22.1-194's limited waiver of sovereign immunity because the bus was covered by insurance.
The Supreme Court rejected Z.M.'s argument that the availability of insurance determined whether or not sovereign immunity applied and held that the limited waiver contained two requirements. First, there must be a "vehicle involved in an accident." Second, if, and only if, this first requirement is satisfied, sovereign immunity is waived up to the amount of available insurance. The Court determined that since the school bus was merely the site of the alleged injuries and that the injuries did not arise in any way from the use of the school bus as a vehicle, Va. Code §22.1-194 did not apply and the school board's immunity was not waived.
The Supreme Court's analysis did not stop there. Z.M. argued that his claims of gross negligence against the school board should proceed regardless of Va. Code §22.1-194's applicability. In one of the clearest and succinct opinions this attorney has ever read, the Supreme Court affirmatively held, in no uncertain terms, that "the School Board itself benefits from immunity from suit, whether the claims involve simple negligence, gross negligence, or even intentional torts." Newport News School Board v. Z.M., Va. Sup. Ct. Record No. 240833 (slip opinion p. 5) (May 8, 2025).
So what does this mean?
In a nutshell, this ruling clears up decades of confusion among the lower courts as to the extent of school boards' immunity. Quite simply, you cannot sue a school board unless the Virginia legislature has specifically granted permission by statute. This is not a factual analysis; it is a purely legal one. This ruling creates the clear precedent for dismissing school boards at the very beginning of lawsuits, thereby preserving taxpayer money from protracted litigation and extensive discovery expenses in defending school boards across the Commonwealth of Virginia. This ruling lets school boards focus on operating public schools and educating students without fear of being sued for the way they exercise their judgment in operating the public school system, which inherently involves allocation of limited financial resources.
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