Court Finds Valid Free Speech Claims in Lawsuit of Virginia Teacher Fired for Failure to Use Student’s Preferred Pronouns

The Virginia Supreme Court has joined other courts in finding that school systems must meet a high burden in order to discipline teachers for failure to use a student’s preferred pronouns. The majority of the Court overturned a lower court’s dismissal of the teacher’s religious freedom and free speech claims. The opinion considered only rights under the Virginia Constitution, but reviewed a plethora of federal law under the U.S. Constitution.

The Court considered the federal "neutral law" standard of Employment Division v. Smith, but noted that the case’s “shelf life in the federal courts remains uncertain.” Ultimately, the Court concluded that the Virginia Constitution's guarantee of religious freedom is broader than the past and possibly future interpretation of the U.S. Constitution by the U.S. Supreme Court.

The Court also examined the teacher's free speech claims under the Virginia Constitution, analyzing the issue as one of compelled speech. “As the complaint frames this factual scenario, the School Board fired Vlaming not because of what he said but because of what he refused to say. He used [the student] Doe's preferred name but avoided the use of any third-person pronouns when referring to Doe and ‘rarely, if ever, used third person pronouns to refer to any students during class or while the student being referred to was present.’”

In contrast to the religious freedom claim, the Court found that the protections provided by the Virginia Constitution are no different from those of the U.S. Constitution. “We believe that the extant principles of free speech presently articulated by the United States Supreme Court in its interpretation of the First Amendment equally describe the baseline protection of the right of free expression secured by the Constitution of Virginia.”

The Court determined that the school system had not sufficiently justified its burden on the teacher's speech. “Notions of ‘the need for orderly school administration,’ may play a role in balancing the government's right to punish or to censor speech — but these concerns play no role as a counterbalance to a teacher's right not to be compelled to give a verbal salute to an ideological view that violates his conscience and has nothing to do with the specific curricular topic being taught.”

The majority opinion acknowledged many reasons a school would want to support a transgender student's request to have a teacher use preferred pronouns, but it found the evidence to be undeveloped at the motion to dismiss stage. As the case progresses, both sides will have the opportunity to present and discover evidence on these points.

This decision by the Virginia Supreme Court highlights the ongoing debate surrounding religious freedom, free speech, and the rights of transgender individuals. 

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