Coach Cross strongly objected to the policy the school board was considering in Loudoun County, Virginia. The policy would, among other things, require teachers to refer to students by their preferred pronouns. Thus a transgender female student would be referred to as she/her, despite being born a biological male. To Coach Cross, this was non-scientific, abusive to children, and a violation of God’s law. He expressed these views privately at first in an email to the superintendent, and then publicly at a school board meeting.
The school got some complaints from parents after the school board meeting, several of them asking that their children have no contact with Coach Cross. The school suspended Coach Cross with pay, and limited his ability to speak at future board meetings.
Coach Cross sued and obtained an injunction that ordered the school to reinstate him. On appeal, the Supreme Court of Virginia ruled that the lower court had not abused its discretion, and thus, the injunction stayed in place. The court discounted the effect of the parent complaints, noting that it was limited to a “tiny minority” of parents. The case is Loudoun County School Board v. Cross, decided by Virginia’s Supreme Court on August 30, 2021.
As a school district lawyer, I have to wonder if the outcome would have been different if the school had waited until the policy was adopted before taking action against the coach. It was clear that he was not going to comply. If the school had let that play out, it would have argued that the adverse action it took was based on conduct—violation of policy—rather than speech. Maybe the court would have seen it differently.
But maybe not. The highest level court we have on the pronoun issue is the 6th Circuit in Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021). This one involved a university professor at Shawnee State in Ohio who was disciplined based on a student’s complaints that the prof refused to use feminine pronouns when calling on her. The 6th Circuit provided a ringing endorsement of the importance of academic freedom for teachers, particularly at the college level. In doing so, the court held that Meriwether was protected by the First Amendment and could not be required to comply with the university’s policy. As with Coach Cross, Professor Meriwether’s objections to the policy were based on both philosophical and religious views. That one was decided on March 26, 2021, and a request for rehearing en banc was denied in July.
So be careful when you address this issue. We certainly want to provide a safe and welcoming school experience for all students, including those who are transgender. But the objections of teachers, particularly if based on religious views, have to be weighed in the balance as well.
DAWG BONE: FURTHER EVIDENCE: THE PUBLIC SCHOOL IS GROUND ZERO IN THE CULTURE WARS.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.