concurring in the denial of rehearing en banc:
I respect the fervor of the dissent’s compassion for Ms. Doe. Because, however, of its continued conflation of standing and exhaustion of administrative remedies and misidentification of the basis of the majority opinion, I feel compelled to reiterate the limited issue on which the majority actually ruled and which the dissent largely ignores.
Because the substantive due process injury Ms. Doe alleges arises from her desire to access school property anonymously, a privilege third parties are in a position to grant, her alleged injury is not directly traceable to the challenged law. Furthermore, because she must obtain permission from both the school board and a Virginia court to enter school property, a decision ordering the school board to adopt a policy for her to anonymously petition for entrance would not redress her injury. Indeed, we did find Ms. Doe’s procedural due process challenge to her classification under the Virginia law to be justiciable, but we determined, based squarely on Supreme Court precedent, that she failed to state a claim upon which relief could be granted.
In the end, it is not this limited ruling, if correctly read, that is at odds with precedent from this and other Circuits: To the contrary, what would indeed break new ground is the dissent’s proposal that we o’erleap questions of justiciability to allow registered sex offenders to challenge policies regulating their entry into schools without our knowing whether those policies in fact constrain them.