SCV PANEL AFFIRMS INJUNCTION IN SCHOOL’S TRANSGENDER-POLICY APPEAL

(Posted August 31, 2021) The Supreme Court of Virginia yesterday issued an unpublished order in an injunction appeal. The case is Loudoun County School Board v. Cross, and stems from a schoolteacher’s First Amendment suit against his employer.

Three months ago, in late May, the school board calendared discussion of a proposed policy relating to transgender students. The proposed policy came up for discussion in what I assume was a regular school board meeting. Cross, an elementary-school gym teacher, registered to speak at the meeting. When he rose and took the lectern, he told his ultimate bosses that he didn’t agree with the proposed action. Here’s what he told the board, after introducing himself:

I am speaking out of love for those who suffer with gender dysphoria. 60 Minutes, this past Sunday, interviewed over 30 young people who transitioned. But they felt led astray because lack of pushback, or how easy it was to make physical changes to their bodies in just 3 months. They are now de-transitioning. It is not my intention to hurt anyone. But there are certain truths that we must face when ready. We condemn school policies like 8040 and 8035 because it will damage children, defile the holy image of God. I love all of my students, but I will never lie to them regardless of the consequences. I’m a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against our God.

The next day was normal; the teacher came to work and conducted an ordinary day of teaching his students. But the next morning, a supervisor told the teacher that he was being placed on administrative suspension due to his comments. As today’s order reports, he was “banned from all Loudoun County Public Schools property and events.” The division memorialized this action later that day by e-mailing all parents and staff of the elementary school to describe the suspension.

The following day, a lawyer representing the teacher contacted the assistant division superintendent to demand the teacher’s reinstatement. A school board lawyer replied that no reinstatement was forthcoming. The lawyer explained that the suspension stemmed from “significant disruption” at the school and requests by several parents that their children be shielded from the teacher.

The teacher sued the school board in Loudoun County Circuit Court, alleging two claims for deprivation of his freedom of speech and two more for a denial of his right to free exercise of his religion. He sought temporary and permanent injunctive relief, among other remedies. After what looks like a hotly contested hearing, a circuit-court judge agreed with the teacher and entered a temporarily injunction directing the school to reinstate the teacher and remove its ban on his coming to division functions. This last provision is significant because the teacher had indicated that he wished to speak publicly again should this subject arise on a future school board agenda.

The board filed a petition for review under Code §8.01-626 on June 23. That, my faithful readers will recall, permits a snap appeal from the grant or denial of injunctive relief. A week later, the teacher filed a brief in response. Yesterday, the Supreme Court issued an unpublished order that decides the appeal. A panel comprising Justices Kelsey, McCullough, and Chafin unanimously affirms the grant of injunctive relief. The panel rules that, given the wide latitude exercised by trial judges considering injunctive relief, the circuit court here didn’t abuse its discretion in ordering relief.

There are some tantalizing procedural aspects to this ruling. Because the SCV has never expressly laid out a set of factors for trial courts to consider in deciding whether to award temporary injunctions, the parties below had agreed to use the federal standard set out in Winter v. Natural Resources Defense Council from 2008. The circuit court accordingly considered the teacher’s likelihood of success on the merits, his irreparable harm if an injunction were refused, the balance of equities, and the public interest. It ruled that the complaints of a few parents (the school housed almost 400 students) didn’t outweigh the teacher’s valid First Amendment right to speak on a matter of public concern.

If you were hoping for a full-throated endorsement of the Winter approach from today’s panel, take a deep breath and get used to a little disappointment. First, this is an unpub –principally because it’s the work of a three-justice panel, and only the decisions of the full court get the published treatment. Second, the panel today cites the Supreme Court’s previous guidance on temporary injunctions. I believe I’m safe in describing that guidance as vague, at least in comparison with the robust federal decisional law on the topic: “sound judicial discretion”; “preserve the status quo”; “the court shall be satisfied of the plaintiff’s equity”; “veracity and magnitude of the asserted harm.”

The panel cites the teacher’s unquestioned right to speak on matters of public concern, and then agrees that the circuit court appropriately found that the harm claimed by the division didn’t outweigh this right. The panel accordingly affirms the award of the injunction.

While it doesn’t figure in yesterday’s ruling, I invite you to consider this hypothetical scenario: Suppose that a teacher had spoken at the school board meeting, in favor of the policy. Suppose then that a few parents who objected to it on philosophical or religious grounds had called the school to complain about that public comment, and ask that our hypothetical teacher be kept away from their children. Can those parents’ complaints become the foundation for a school-division decision to suspend the teacher? Remember, governments put themselves in a bad legal position when they enact content-based restrictions on speech: Advocating for Position A is good; advocating for Position B will get you suspended.

Back to our tale: If you’re wondering whether the school board can seek rehearing from the full Supreme Court, the answer is no. It’s right there in Rule 5:20(h), which says that you can’t file a PFR after a ruling like this. The losing party after a full trial can appeal, of course. That will foreseeably come next year, when the losing party can get plenary by-right review in the newly expanded Court of Appeals.

This order comprises part of the court’s shadow docket. You won’t find a listing for it on the court’s “Appeals Granted” web page. There was no oral argument on the petition, so you can’t listen to anything meaningful to ascertain how things went. And while yesterday’s ruling is an unpublished order, it is not – at least, not yet – posted on the court’s “Unpublished Orders” web page. All of the parties’ submissions were on metaphorical paper (we’re in the age of e-filing now); all of the court’s actions in the case were conducted behind closed doors.

I’m grateful to Virginia Lawyers Weekly and to Loudoun Now for alerting me to the order. It’s so invisible that, if not for their publications, I wouldn’t have known about it, either.