Virginia School Board Enjoined From Suspending Teacher.

Meet Tanner Cross.

Cross is a physical education teacher in Loudoun County, Virginia. He has been teaching for over eight years, gets good performance reviews, and has never been in any trouble within the school system. A recent evaluation concluded that Cross was “extremely professional,” an “excellent role model” and a “mentor to students.” Cross’s contract with the school district was renewed for the 2022 – 2023 school year.

All this was occurring before the night of May 25, 2021 when Cross stood up at a public School Board meeting, and during the time for public comments, addressed a policy the Loudoun County School Board was looking to implement concerning transgendered students.

Specifically, proposed policy 8040 states:

(1) allow students to use a chosen name different from their legal name “without any substantiating evidence, regardless of the name . . . regardless of the name . . . recorded in the student’s permanent educational record.”

(2) allow students to use a chosen gender identity pronoun different than the pronoun consistent with their biological sex “without any substantiating evidence, regardless of the gender . . . recorded in the student’s permanent educational record.”

(3) at the request of a student or parent / legal guardian, require staff “when using a name or pronoun to address the student, [to] use the name and pronoun that correspond to their gender identity” rather than their legal name and pronoun consistent with their biological sex.

(4) allow students to use restrooms and locker rooms based on their gender identity rather than their bioological sex (i.e., allow biological boys to use locker rooms and bathrooms alongside biological girls.)

(5) revise existing policy 8350 to allow students to participate in interscholastic, co-curricular, and extra-curricular activities, including sports based on their gender identity rather than their biological sex (i.e., allow biological males to compete against biological females and vice versa.)

On May 25th, Cross made comments against the policy:

On May 26, after an uneventful day of teaching, Cross was told to meet the following day with Alix Smith, who is the “HRTD Supervisor for Equity, Compliance and Respectful Workplace at Loudoun County Public Schools.”

At the meeting, Cross was handed a letter suspending him from teaching, banning him from all school property and banning him from any school sponsored activities off of school property while he was being “investigated” for “allegations that [Cross] had engaged in conduct that has had a disruptive impact on the operations at Leesburg Elementary School.”

Cross contacted the Alliance Defending Freedom (ADF) who wrote the School Board on May 28 a letter basically demanding the reinstatement of Cross that day.

The letter cites many Supreme Court cases, but the case of PICKERING v. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT is one that is directly on point:

….a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.

The School District ignored the letter and the ADF filed a complaint against the School District, and asking that the Court prevent the School District from suspending Cross.

On June 8, 2021, Judge James Plowman, Jr. of the 20th Judicial Circuit granted an injunction prevented the School Board from suspending Cross.

The Court finds that the Plaintiff’s speech and religious content are central to the determination made by the Defendants to suspend Plaintiff’s employment. The Court further finds that the weight of the evidence and the totality of the circumstances, clearly show that the four prongs for issuance of injunction had been satisfied.

The injunction is significant in that the judge found that in a hearing, Cross would most likely prevail on his claims and the School District would lose.

Plowman declared as a matter of law that:
1) Cross was speaking as a member of the public, and not as an official or representative of the School District.
2) Cross’ speech at the meeting was protected under the First Amendment.
3) The investigation and retaliation of Cross for his comments was unConstitutional.

Interestingly to us, the School District claimed Cross’ words had created a disturbance within the School District. As proof, the School District submitted emails discussing the incident and the suspension. The Judge ruled that the emails came after the suspension, and basically said “you cannot say that the disruption caused by your actions of suspending the teacher are basis of disrupting actions by Cross.” It wasn’t Cross who created any disruption, it was the School Board and they wanted to blame Cross for their own actions.

The ADF President and CEO Michael Farris issued the following statement on the injunction:

“Nobody should be punished for expressing concern about a proposed government policy, especially when the government invites comment on that policy. For that reason, we are pleased at the court’s decision to halt Loudoun County Public Schools’ retaliation against Tanner Cross while his lawsuit continues. Educators are just like everybody else—they have ideas and opinions that they should be free to express. Advocating for solutions they believe in should not cost them their jobs. School officials singled out his speech, offered in his private capacity at a public meeting, as ‘disruptive’ and then suspended him for speaking his mind. That’s neither legal nor constitutional. Dozens of other teachers have shared their beliefs on various policies without retaliation; Tanner deserves to be treated with the same respect.”

While this is a win for the First Amendment and the right of people to speak their minds, it shows how school districts want to deny people their rights and not speak out against the policies of districts.

Whether you agree with Cross or not is not the issue here. What is the issue is that Cross had the right to speak to the School Board, and the School Board illegally and unConstitutionally said that they could fire him for his legal actions.

In their filing, and in the decision issued by Judge Plowman, both cited the fact that the “investigation” was enough to make people afraid of speaking out on issues of public importance. Instead of embracing the freedoms we all enjoy, the School Board used was using the suspension and retaliation to intimidate others from speaking out on the subject as well.

We wish Cross and the ADF success in the future as School Boards need to learn that people still have rights in this country and just because a person sits on a Board, they are not gods that the rest of us have to bow down to.

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