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AG Herring issues official opinion overturning racist rulings from previous attorneys general

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In one of his last duties, Virginia Attorney General Mark Herring presented two Black legislators on Thursday with an official opinion overruling nearly 60 racist and discriminatory opinions from previous state attorneys general.

The opinion was partly symbolic because the laws those opinions related to are no longer on the books. But Herring, Del. Lamont Bagby, D-Henrico, and Sen. Mamie Locke, D-Hampton, said at a news conference that formally overruling them was an important part of Virginia’s advancement from its racist history.

“Too many of my predecessors used this office to perpetuate injustice,” Herring said. “As the commonwealth of Virginia committed to Jim Crow and Massive Resistance during the early and mid-20th century, attorneys general were more than just passive observers. They were often key players, building a legal framework designed to defend the indefensible, the unjust and the unconstitutional.”

That includes legal fights in Virginia to defend segregated transit, segregated schools and high school sports, poll taxes to prevent Black people from voting and a ban on interracial marriage.

Between 1904 and 1967, Virginia attorneys general issued at least 58 official advisory opinions that perpetuated racial discrimination, Herring said.

Until Thursday, the office of attorney general had done nothing to formally reject those racist opinions, he said. “By overruling these opinions, we are making clear that these legal opinions do not reflect the Virginia of today and we will not carry them into the commonwealth of the future.”

Locke said too often in the past the power to shape Virginia law was wielded in support of racist and discriminatory laws.

“By taking this step today, Attorney General Herring is truly closing that chapter in the history of our commonwealth and helping us move forward as a more inclusive and just commonwealth,” she said.

Bagby wiped his eyes after speaking at the news conference.

“It didn’t happen that long ago,” he said. “All of this is embedded together, from voting, to housing, to health care, to education.”

Over time, the attorney general’s office was utilized to protect but also hurt people, he said.

“This means a great deal. Not just to ancestors but to individuals that have lived through,” he said. “My parents grew up in Varina. My uncles, aunts, they all grew up in Varina. They were bused all the way to Virginia Randolph [a school for Black students] for education. They passed four or five schools for public education. This is important work. Thank you, general.”

Bagby is chairman of the Virginia Legislative Black Caucus. Robert Barnette, president of the Virginia State Conference NAACP also joined the news conference.

The work of reviewing the old opinions started a few years ago by Cynthia Hudson, who was chief deputy attorney general. Jan Proctor, opinions counsel in the office from 2018 to 2020, helped supervise the project. Assistant Attorney General Euticha Hawkins reviewed almost every state attorney general opinion going back to 1904 to look for racist language and conclusions.

Democrat Herring’s second term as attorney general concludes Saturday when Jason Miyares, the Republican who defeated him in November, is sworn in.

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