We recently discussed the case of Loudoun County teacher Byron “Tanner” Cross, who was suspended for speaking out against gender politics. In a grand victory for teachers ‘rights to freedom of expression, 12th District Judge James E. Plowman ordered the LCPS to restore Cross’ position as PE teacher at Leesburg Elementary School. In a letter, the court found a basis for an injunction to allow Cross to return by December 31, pending further court orders.
Cross got into trouble when he showed up for a school board meeting. He began by saying, “My name is Tanner Cross and I speak out of love for those who suffer from gender dysphoria.” He further indicates that he is a teacher but would not follow the guidelines:
“It is not my intention to hurt anyone, but there are certain truths that we must face when we are ready. We condemn school policy [that] would harm children, defile the sacred image of God. I love all of my students, but I will never lie to them, regardless of the consequences. I am a teacher but I serve God first and I am not going to claim that a biological boy can be a girl and vice versa because it is against my religion. A child lies, it is abuse of a child and it sins against our God. “
Cross’ testimony appeared to refuse to comply with guideline 8040, which requires Loudoun staff to use preferred pronouns.
“LCPS staff must allow gender or transgender students to use their 18 chosen names and gender pronouns that reflect their gender identity without substantive evidence, regardless of the name and gender recorded on the student’s permanent educational record. At the request of a student or a parent / legal guardian, when using a name or pronoun to address the student, school staff must use the name and pronoun that corresponds to their gender identity. “
In particular, the rule extends to other students who may be punished for not using the required pronouns:
“The use of gender-neutral pronouns is appropriate. The use of names or pronouns can lead to inadvertent slip-ups; However, employees or students who willfully and persistently refuse to respect a student’s gender identity by using the wrong name and gender pronoun are violating this policy. “
Punishing a student for not using the pronouns could pose the most difficult constitutional challenges under the First Amendment. That could be viewed as forced speech contradicting their religious and political views.
Now, however, Cross seems to assert himself as a teacher. The decision in his favor required the determination that he would likely prevail if the injunction was granted.
In particular, the county stressed that the basis for the suspension was the disruption caused by Cross’s comments. That was a grave mistake by the county and its lawyers. In particular, the school district failed to determine that the national controversy surrounding another teacher’s statements was a similar disruption. Loudoun County’s teacher Andrea Weiskopf called for a book ban and attacked those who support classics like To Kill A Mocking Bird as advocates of harmful “White Saviorism”.
It would have been smarter to focus on a refusal to abide by school policies when Cross would have to acknowledge it. Accordingly “[T]The court found that the alleged interference was inadequate. ”Plowman further noted that“ Cross’s interest in making his speech on the First Amendment outweighs the defendant’s interest in limiting the same, and its scope the disruption, which the defendant alleges, did not help to usefully disrupt the operation or services of the Leesburg Elementary School ”.
The court also found that at least five teachers have made statements that they would like to speak publicly but are fearful of retaliation against Cross. By focusing on the likely “disruption” caused by Cross’ views, the county undermined its position by focusing on the content of its views. The suspension came within 24 hours of his utterance, leaving little time to determine his position on the performance of his duties in the light of the directive. The court made a distinction between the “expectations” and the “mandate” of the policy. It turns out that Cross may not live up to expectations, but it is still not violating the guidelines. As a result, the suspension was deemed premature and the evidence inadequate.
That is a remarkable gain for a teacher in the current environment. The pressure to monitor and punish teachers for public commentary is growing. Last year April Mustian, a professor at Winthrop University, threatened the K-12 teachers that they would be monitored for any “rhetoric” viewed as pro-police or anti-black. We previously discussed the Vermont director who was removed for giving her opinion on Black Lives Matter on her personal Facebook page. We also recently talked about the dismissal of a Michigan coach who expressed support for President Trump. However, this did not start with the recent protests. We have seen teachers (here, here, here, here, here, here, here, here, here, here, here, here), students (here, here and here) and other officials (here and here and here) before ) who have been fired for their private speech or behavior, including school workers who have been fired for posing in magazines (here), appearing on television shows in bikinis (here), or had a previous career in the adult entertainment industry (here) .
The school could appeal, but it would be wise to change your position before engaging in litigation again. Better still, it could work out a compromise to protect freedom of expression. As I mentioned earlier, the rule states that “at the request of a student or parent / guardian, when the school staff uses a name or pronoun to address the student, they will use the name and pronoun corresponding to their gender identity. ”However, this is the case“ when a name or pronunciation is used to address the student ”. What if a teacher just doesn’t use a pronoun? If Cross referred to such students by their last name and avoided any pronoun, would that be considered compliance? If so, the board should clearly set out such options in writing. If Cross is fired, such questions could soon be brought to justice.