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Judge Orders Reinstatement of Teacher Who Spoke Against Proposed School Policy

A Virginia state court judge has ordered temporary reinstatement of a teacher in Loudon County, pending trial, finding that his suspension likely violated the First Amendment. The teacher spoke during the public portion of a school board meeting, criticizing proposed school policies about transgender students. The school system suspended him less than 24 hours later and also barred him from school property. The teacher sued, alleging violation of his First Amendment rights, and sought an injunction restoring him to his job. The state court judge granted the injunction, finding that he is likely to prevail on the merits of his claim.

The full opinion is a thorough and well-written analysis of First Amendment law as it applies to public school teachers. Two important points stand out for schools facing a similar question.  First, the teacher was speaking in his private capacity. "His speech was not conducted at his usual place of employment, occurred during non-working hours and at a forum where public comment was invited." If the teacher had spoken during school hours in his classroom, the court's analysis might have reached a different conclusion.

Second, the school system claimed that the speech caused disruption, but it had little actual evidence. The court noted that the record contained only 5 critical emails from parents that arrived before the school took action. The judge viewed those emails "to be de minimis given the size of the [school] community and could not reasonably be construed to be so disruptive to school operations as to justify the actions taken by Defendants." It is possible that the school will locate more evidence during discovery as the case proceeds.  

Schools, like most youth organizations, hate any level of disruption.  Even the specter is enough for most administrators to try to quash a controversy. The First Amendment, however, by definition protects disruptive speech. After all, if the speech is not controversial, it does not need protection. Nor would any school employee fear repercussions from speaking in support of a proposed school policy. The only time that a First Amendment is needed is just this sort of situation.

Balancing a teacher's protected constitutional rights against a school's need to function is not an easy task. When in doubt, however, a school should err on the side of the First Amendment.

The school system is ordered to reinstate Cross to his previous position, a P.E. teacher at Leesburg Elementary School, with the injunction remaining in force until a trial or the end of the year.


schools, first amendment, free speech, youth serving organizations

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