The Volokh Conspiracy

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Free Speech

Schoolteachers' First Amendment Rights to Publicly Criticize Transgender Pronoun Policies,

including saying "I will not affirm that a biological boy can be a girl and vice versa."


From the Virginia Supreme Court's decision in Loudoun County School Bd. v. Cross last August, but for some reason just posted on Westlaw in the last day or two; it mostly defers to the trial court's judgment, but also has some more to say about employee speech rights more broadly:

Cross has worked in Loudoun County Public Schools as an elementary school physical education teacher for eight years…. [T]he School Board is considering whether to adopt Policy 8040, "Rights of Transgender Students and Gender-Expansive Students" ("transgender policy"). If adopted, the transgender policy will: (1) allow students to use a name different than their legal name; (2) allow students to use gender pronouns different from those corresponding to their biological sex; (3) require school staff to use students' chosen name and gender pronouns; and (4) allow students to use school facilities and participate in extra-curricular activities consistent with their chosen gender identity. Cross' complaint asserted that, based on scientific evidence regarding gender and child development, his philosophical views on the rights of parents and educators, and his Christian religious beliefs, he objects to (1) the idea that someone can be transgender, (2) treating children as transgender, and, accordingly, (3) numerous aspects of the transgender policy.

Cross learned the Board would be considering whether to adopt the transgender policy during its May 25, 2021 meeting. He registered to speak during the meeting's public comment period and delivered the following statement:

My name is Tanner Cross. And I am speaking out of love for those who suffer with gender dysphoria. 60 Minutes, this past Sunday, interviewed over 30 young people who transitioned. But they felt led astray because lack of pushback, or how easy it was to make physical changes to their bodies in just 3 months. They are now de-transitioning. It is not my intention to hurt anyone. But there are certain truths that we must face when ready. We condemn school policies like 8040 and 8035 because it will damage children, defile the holy image of God. I love all of my students, but I will never lie to them regardless of the consequences. I'm a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It's lying to a child. It's abuse to a child. And it's sinning against our God.

The next day, Cross alleged, he fulfilled his teaching duties as usual. That evening, however, a supervisor asked to speak with Cross the next morning. When they met, the supervisor informed Cross he was being placed on administrative leave with pay. As an explanation for this decision, Cross received a letter from Assistant Superintendent Sebastian stating Cross was under investigation for allegations he engaged in conduct that had a disruptive impact on the operations of Leesburg Elementary. The letter also informed Cross that, absent permission from Leesburg Elementary principal, Shawn Lacey, he was banned from Loudoun County Public Schools property and events. Later that day, an email was sent to "all Leesburg Elementary parents and staff" informing them of Cross' suspension….

The [trial court issued a preliminary injunction ordering] the Defendants to reinstate Cross to his position and remove the ban prohibiting him from Loudoun County Public Schools property and events…

We conclude that the Defendants have not established the circuit court abused its discretion in granting Cross a temporary injunction… [I]t is settled law that the government may not take adverse employment actions against its employees in reprisal for their exercising their right to speak on matters of public concern….

The second step requires weighing Cross' interest in making his public comments against the Defendants' "interest in providing effective and efficient services to the public." Performing this "difficult" balancing of interests required the circuit court to examine the unique circumstances of this case, including the context in which Cross made his public comments and the extent to which they disrupted Loudoun County Public Schools' "operation and mission." …

The Defendants incorrectly minimize Cross' interest in making his public comments. Cross made those comments at a public Board meeting where one of the issues under consideration was whether to adopt the transgender policy. As the Fourth Circuit has recognized, "[b]oth the [teacher] and the public are centrally interested in frank and open discussion of agenda items at public meetings." Further, in addition to expressing his religious views, Cross' comments also addressed his belief that allowing children to transition genders can harm their physical or mental wellbeing. This is a matter of obvious and significant interest to Cross as a teacher and to the general public.

Moreover, Cross was opposing a policy that might burden his freedoms of expression and religion by requiring him to speak and interact with students in a way that affirms gender transition, a concept he rejects for secular and spiritual reasons. Under such circumstances, Cross' interest in making his public comments was compelling. Although the Board may have considered Cross' speech to be "a trifling and annoying instance of individual distasteful abuse of a privilege," we believe Cross has a strong claim to the view that his public dissent implicates "fundamental societal values" deeply embedded in our Constitutional Republic.

Further, the Defendants have not identified an abuse of discretion in the circuit court's conclusion that its interest in disciplining Cross was comparatively weak…. [T]he court supplied discussion of the evidence it found particularly germane to its analysis. The court further stated that such evidence was not "exclusive to the [c]ourt's consideration but [was] reflective of some that [was] given greater weight than others not specifically mentioned." The record thus reflects that the circuit court did not engage in an inappropriately myopic or summary application of the law to the facts before it.

We also find unpersuasive the Defendants' suggestion that the circuit court did not give sufficient weight to their heightened interest in regulating Cross' speech because, as a teacher, he occupies a position of significant public contact and trust. Although the Board is correct that public employers have a greater interest in controlling the speech of employees who interact with the public and rely on the public's trust to perform their duties, such as police officers and teachers, there is no indication the court disregarded or did not appropriately consider the unique position Cross occupies.

Next, the Defendants argue the circuit court erred in refusing to consider that Cross' suspension was justified by the disruption school officials reasonably anticipated once parents quickly expressed their concern over his public comments. As evidence of this purported refusal, the Defendants point to the court's comment that no actual disruption to school operations had occurred when Principal Lacey reassigned Cross from meeting children because, at that time, Lacey had received only one parental complaint regarding Cross. The Board also cites that the court's order does not otherwise mention the subject of anticipated disruption.

Although the Defendants are correct that the negative consequences a public employer reasonably anticipates will result from an employee's speech may under some circumstances justify anticipatory adverse action against the employee to mitigate those consequences, the operative adverse action in this case is not Cross' reassignment from greeting children but the subsequent decision to suspend him and limit his access to public school events. Accordingly, the circuit court could sensibly discount the fact that Cross was removed from morning greeting duty.

Further, no evidence corroborates the Defendants' assertion that Cross was suspended because, after several parents complained, there was a reasonable expectation that parents and students would avoid interacting with Cross to the point he could not fulfill his duties. Principal Lacey's and Superintendent Ziegler's affidavits do not aver they took their terminal adverse employment actions against Cross because they thought doing so would quell further disruption at Leesburg Elementary.

To the contrary, Superintendent Ziegler's affidavit suggests Cross was suspended due to "a neutral and generally applicable practice of utilizing suspension or paid administrative leave when an employee engages in speech or conduct that causes a disruption in the operations of the school or school division." Of course, any such practice would be unconstitutional to the extent the Defendants deploy it overzealously to thwart protected employee speech. Consequently, the Defendants have not demonstrated the circuit court committed an error of law or otherwise abused its discretion.

Likewise, the circuit court did not improperly discount the Defendants' interests in ensuring student wellbeing and that its employees support and comply with existing and proposed gender identity policies and corollary anti-discrimination laws. Those concerns appear pretextual because, first, they were not mentioned in either Principal Lacey's or Superintendent Ziegler's affidavits explaining Cross' suspension. Instead, they were raised for the first time in the second letter Cross received from Loudoun County Public Schools several days after he was suspended.

More importantly, Cross' email to the Board and Superintendent Ziegler expressed, in even stronger terms than his public comments, his opposition to and unwillingness to comply with the transgender policy. However, the Defendants took no action based on that email because, as Superintendent Ziegler states, it "did not cause any disruption with the operation of Leesburg Elementary." Considering also that the Defendants have never attempted to specify how Cross' continuing to teach at Leesburg Elementary might pose a real and present threat that he or the Loudoun County Public Schools will contravene any anti-discrimination policy or law, neither that concern nor the Defendants' attendant concern that Cross might harm children can justify his swift suspension.

Further, although the Defendants assert the circuit court should have considered that Cross' public comments necessitated that students' schedules be changed or that they miss required physical education instruction, they presented no evidence of that to the circuit court. There was also no evidence that it would have been problematic or administratively taxing to accommodate the parents who requested Cross not teach their children, nor was there any clear evidence Principal Lacey has diverted material time from his other obligations to manage the fallout from Cross' public comment.

The only disruption the Defendants can point to is that a tiny minority of parents requested that Cross not interact with their children. However, the Defendants identify no case in which such a nominal actual or expected disturbance justified restricting speech as constitutionally valued as Cross' nor have they attempted to explain why immediate suspension and restricted access to further Board meetings was the proportional or rational response to addressing the concerns of so few parents….

The parties later settled.