by Dick Hall-Sizemore
The Loudoun County School Board has gone too far by disciplining a teacher for speaking in opposition to a proposed Board policy.
Tanner Cross, a physical education teacher, appeared before the Board at a meeting in May in opposition to a proposed policy regarding LGBTQ students. One of the provisions of the draft policy would require students to use the name and pronoun “that corresponds to [the student’s] consistently asserted gender identity.” According to the Washington Post, Cross said that he could not do that; he would never “affirm that a biological boy can be a girl and vice versa.”
School officials placed Cross on paid administrative leave and forbade him from setting foot on school grounds and from speaking at school board meetings. Cross went to court claiming a violation of his rights of free speech and free exercise of religion. A circuit court ordered the school system to immediately reinstate Cross and rescind the ban on his entering school grounds. Although the ruling was a preliminary injunction while the suit goes forth, the judge made it clear that he felt that the school system’s actions were a freedom of speech violation. The school system has appealed the ruling to the Virginia Court of Appeals.
This is a clear violation of the man’s First Amendment right to freedom of speech. School Board policy allows school employees to engage in political activities as long as it is “clear that their views and actions represent their individual positions and do not represent the views of the school division.” It was abundantly clear that Cross was expressing his views and not those of the division.
If the LGBTQ policy had been in effect and Cross had violated it by intentionally refusing to use a student’s preferred pronoun and name, the Board would have been on firmer legal ground in suspending him for violating one of its policies. But it was not in effect at the time Cross addressed the Board and, in fact, is still not in effect. The Board disciplined him because of what he said, not because of any actions he took.
Some might argue that, even if the policy had been in effect and he had insisted on using the “wrong” pronoun and name, any discipline would have been a violation of his free speech protection. For those making such an argument, I have a different scenario for them to consider. The Board policy prohibits a school employee from using his position in school “to further a political cause, campaign, or support of any issue…during work hours.” What if Cross, or any teacher, brought campaign material to class last fall and strongly urged his students to campaign for Joe Biden? Would the School Board have been in violation of his freedom of speech right if it had suspended him for violating its policy?
A big disappointment for me is the absence of the Virginia ACLU in this issue. It appears that the national ACLU is going through an identity crisis. Its older, more traditional members want to keep First Amendment issues as the organization’s top priority, but newer, younger members are pushing to change the focus to social justice issues. Based on an interview with the new executive director of the Virginia ACLU, it seems that social justice will be its priority. That’s unfortunate because the ACLU has a nonpartisan tradition that enabled it to fight for the First Amendment rights of even unpopular figures and causes. By jumping into the social justice cultural war, its credibility will be eroded.