Virginia Supreme Court puts school boards on notice: preferred pronoun mandates won't fare well

A French teacher tried to stop a transgender student from walking into a wall. He got fired for inadvertently referring to the wayward student as "her" and consistently refusing to refer to the female with male pronouns, even when the student was not present, citing his Christian beliefs.

The Virginia Supreme Court is giving teacher Peter Vlaming another shot at holding the West Point School Board accountable for allegedly violating his rights under the state constitution, Virginia Religious Freedom Restoration Act and "common-law contract principles."

The case notably differs from others by educators punished for refusing to use preferred pronouns because it wasn't filed in federal court alleging First Amendment violations.

Vlaming's lawyers at the Alliance Defending Freedom tried to convince the state Supreme Court to take the case nearly two years ago by arguing that Virginians' conscience rights under their own constitution were "slowly vanishing" into the less protective U.S. Constitution.

The majority opinion, written by Justice Arthur Kelsey, scolded King William County Circuit Court Judge Jeffrey Shaw for tossing the case based simply on the pleadings, "[w]ithout hearing any evidence." 

That forced the high court to accept his claims as true and reinstate the suit on the basis that Vlaming had stated "legally viable causes of action," according to Kelsey, joined by Justices Stephen McCullough, Teresa Chafin and Wesley Russell.

"Our Constitutional Republic, framed upon principles of classical liberalism, cannot be true to itself if it curates between those who can and those who cannot participate in the public marketplace of ideas and retreat, when necessary, to the private sanctuary of conscience," he wrote. 

"Absent a truly compelling reason for doing so, no government committed to these principles can lawfully coerce its citizens into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs," the majority asserts.

The 73-page ruling provoked 70 pages of partial concurrences and a partial dissent, which agreed that Shaw should not have dismissed the suit at that stage but took issue with the majority's reading of the Old Dominion's free-exercise clause and nature of the dispute.

The sides took genial jabs at each other throughout their arguments, with the majority warning Shaw to take the minority's 11-page list of "appropriate considerations" on remand with a grain of salt.

School board members did not answer Just the News queries for their response to the ruling or the consequences of punishing teachers for seeking to prevent harm to students if they use the wrong pronouns. Their lawyer did not respond either.

Vlaming sued more than three years ago after administrators refused his compromise to use the female student's preferred first name but avoid pronouns altogether, even in conversations with others. Attorney General Jason Miyares, doctors, feminists and former Trump administration education officials filed briefs supporting him.

The teacher tried to protect the newly male-identifying student in 2018 from feeling conspicuous in choosing a "more culturally masculine name" for French class by asking every student to pick a new name, Kelsey's opinion says, recounting Vlaming's uncontested factual allegations. 

The student's parent ordered Vlaming to address the female by male pronouns when he explained why he wasn't using anyone's pronouns. Assistant Principal Suzanne Aunspach and Principal Jonathan Hochman threatened to fire him for allegedly violating the law and school board policy on "discrimination and harassment based on gender identity."

Vlaming's pronoun flub, when the student nearly walked into a wall while wearing "virtual-reality goggles," prompted the student to leave his class the same day and Hochman to say Vlaming should have apologized for not calling the student "him."

The school board falsely claimed the Virginia Supreme Court has already "adopted" the Supreme Court's 1990 ruling upholding religious infringements under "neutral law[s] of general applicability" as its "governing standard" for Article I, Section 16 of the commonwealth's constitution, Kelsey's opinion says.

"In our opinion, the federal Smith doctrine is not and never has been the law in Virginia, and its shelf life in the federal courts remains uncertain," the majority says, referring to various justices' calls to reconsider the ruling going back to David Souter and the late Sandra Day O'Connor.

The commonwealth delayed the First Amendment's ratification for a year and a half in part because of its relatively paltry protection for free exercise, which troubled "some Virginians of the founding generation," compared to the "fulsome language" in Section 16.

The majority concluded the proper "limiting principle" for free exercise could be found in Thomas Jefferson's 1786 Act for Religious Freedom, which said only "overt acts against peace and good order" could justify interference with "sincerely held religious principles" and was reaffirmed by the General Assembly in 2016.

"The issue here is not whether the School Board’s policies forbidding discrimination and harassment of students" applied to Vlaming's compelled-speech allegations, but whether his beliefs in practice "invariably posed some substantial threat to public safety, peace or order" that the government could not address by "less restrictive means," Kelsey wrote.

The case is not about "compelling adherence to a particular ideology" around gender identity, but rather "a public school teacher refusing to follow the rules applicable to all of the educators in the school," Justice Thomas Mann wrote against the majority, joined by Chief Justice Bernard Goodwyn and Justice Cleo Powell.

Vlaming was not fired for "his personal expressions on the topic of gender identity or the wisdom of the School Board’s policies" but his "specific treatment of a student" in an unavoidably "curricular" relationship, according to Mann. 

Citing the 7th U.S. Circuit Court of Appeals' ruling against a music teacher for also refusing to use students' preferred pronouns, Mann said such refusal "can cause emotional harm to students and disrupt the learning environment."

In a section on free exercise that no one else joined, Mann warned that the majority was functionally giving religious litigants such as Vlaming a free pass to ignore state laws that conflict with their beliefs.

"Now, Virginia stands alone among every jurisdiction in this country by imposing a new level of [judicial] scrutiny" on laws that "incidentally burden religious practice," Mann asserted, "a super scrutiny for religious rights but no others."

Powell, joined by Goodwyn, separately concurred in part by disputing the majority's reliance on Jefferson's statute and its "overt acts against peace and good order" language to interpret the state constitution.

"I am aware of no precedent which provides a rationale for the judicial transformation of a long-standing statutory provision into a constitutional standard," Powell wrote.