State Court Docket Watch: Loudoun County School Board v. Cross

On August 30, 2021, the Virginia Supreme Court issued its decision in Loudoun County School Board v. Byron Tanner[1] affirming the circuit court’s grant of a preliminary injunction to Byron Cross, a Loudoun County Public Schools teacher. This case has important implications for public employees in general and public school employees in particular, regarding their right to speak on matters of public interest that affect them personally.

Byron Cross had been an elementary school physical education teacher in Loudoun County Public Schools for eight years.[2] The Virginia Code requires the Department of Education to “develop and make available to each school board model policies concerning the treatment of transgender students in public elementary and secondary schools” and each school board to “adopt policies that are consistent with but may be more comprehensive than the model policies developed by the Department of Education.”[3] On May 25, 2021, the Loudoun County School Board held a meeting to consider whether to adopt Policy 8040, “Rights of Transgender Students and Gender-Expansive Students.”[4] If adopted, the policy would (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.[5]

Cross 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.[6]

Two days later, Cross was informed that he was being placed on administrative leave with pay and was under investigation for allegations that his conduct had a disruptive impact on the operations of Leesburg Elementary, where he taught. The letter also informed him 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. Cross was informed his suspension was due to his public comments.[7]

Cross brought free speech claims under the Virginia Constitution, alleging retaliation, prior restraint, and chilling of his right to speak publicly as a private citizen.[8] Cross also claimed the Board had engaged in unconstitutional viewpoint discrimination by punishing him for expressing his opinion of the transgender policy, but not disciplining other employees who “expressed different views on proposed gender-identity education policy.”[9] Cross also brought free exercise claims, contending his suspension substantially burdened his free exercise of religion by diminishing his ability to profess and maintain his opinions on religious matters.[10] Cross sought declaratory and injunctive relief directing the Board to, among other things, reinstate him and refrain from punishing him for speaking about the transgender policy.[11]

The Board argued Cross‘ public comments created a significant and continuing disruption at Leesburg Elementary because the principal had heard that parents were discussing Cross’ comments on social media and that several parents had asked that Cross not teach their children; the superintendent had received emails expressing the harm transgender students suffer when their gender identity is not affirmed or their choice of preferred pronoun or name is not respected.[12] The Board also claimed Cross’ public comments conflicted with existing Loudoun County Public Schools policies and state and federal law.[13] The Board argued that Cross’ suspension was appropriate and claimed that Loudoun County Public Schools has a generally applicable practice of suspending with pay any employee whose speech or conduct disrupts Loudoun County Public Schools’ operations and has suspended at least seven other employees for that reason in the past two years.[14]

The circuit court granted Cross’ request for a temporary injunction, finding that Cross made his comments as a private citizen speaking on a matter of public concern and that he had demonstrated likelihood of success on both the free speech and free exercise claims.[15] On appeal, the Virginia Supreme Court described Article I, Section 12 of Virginia’s Constitution as “coextensive with the free speech provisions of the federal First Amendment,”[16] stating that “it 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.”[17] The court then applied a two-step inquiry, where the first step asked whether Cross spoke on an “issue of social, political, or other interest to a community,” and the second step required weighing Cross’ interest in making his public comments against the Board’s interest in providing effective and efficient services to the public.[18]

The school board did not dispute that Cross satisfied the first factor.[19] Regarding the second factor, the court found it significant that “Cross made those comments at a public Board meeting where one of the issues under consideration was whether to adopt the transgender policy,” and that “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,” a matter of “obvious and significant interest to Cross as a teacher and to the general public.”[20] In addition, the proposed policy would burden his freedom of expression, compelling him to speak in a way he opposes for secular and spiritual reasons.[21]

Regarding the Board’s asserted rationale for suspending Cross—“reasonably anticipated” disruption—the court found “no evidence” to corroborate the Board’s claim that any such disruption would preclude Cross from fulfilling his duties.[22] The court found instead that although “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,’” “any such practice would be unconstitutional to the extent the Defendants deploy it overzealously to thwart protected employee speech.”[23] In sum, the government interest in restricting a teacher’s First Amendment rights is limited to preventing “material or substantial interference or disruption,” and the employer bears the “heavy burden” of demonstrating that the speech was too disruptive to warrant protection.[24] The School Board failed to carry that burden.

The issue of school authority over speech has been near the forefront of free speech law lately. Last term, in Mahanoy Area School District v. B.L.,[25] the United States Supreme Court addressed First Amendment limitations on public school regulation of off-campus student speech. This term, the Court has been asked to review First Amendment limits on school authority over employee speech.[26] And the issue of school control over student and teacher speech continues to generate headlines.[27] Here, the Virginia Supreme Court upheld rigorous First Amendment protections for teacher speech on matters of public importance. But with strong opinions on both sides, we can expect to see more cases involving the rights of government employees—and public school employees in particular—to speak in their personal capacity on issues of school policy and their personal beliefs.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].