by Sarah Parshall Perry and Seth Lucas
In a gratifying win for religious freedom and free speech, the Virginia Supreme Court concluded Thursday that embattled Virginia high school teacher Peter Vlaming, who had been fired over his refusal to use a student’s preferred pronouns because of his religious faith, was protected by the free exercise and free speech clauses of the Virginia Constitution.
In 2018, Vlaming, then a West Point High School French teacher, consistently referred to his transgender student (a biological female) by the student’s preferred name. However, he carefully avoided the use of third-person pronouns when referring to the student so as to not violate his religious beliefs. This wasn’t good enough for the West Point School Board, which ordered Vlaming to use the student’s preferred pronouns, too.
Vlaming refused.
Following a complaint by the student, school administrators charged Vlaming with violating the school’s harassment and nondiscrimination policies. According to West Point Schools Superintendent Laura Abel, “Mr. Vlaming was recommended for termination due to his insubordination and repeated refusal to comply with directives made to him by multiple WPPS administrators. That discrimination then leads to creating a hostile learning environment. And the student had expressed that. The parent had expressed that. They felt disrespected.”
Shortly thereafter, in a 5-0 vote, the West Point School Board terminated Vlaming’s employment, despite his stellar record and seven-year history of teaching at West Point High School.
Vlaming then sued the West Point School Board in 2019, asserting constitutional, statutory, and breach-of-contract claims. While a lower court dismissed Vlaming’s claims, the Virginia Supreme Court reversed, sending Vlaming’s lawsuit back down to the trial court so that his case against the school board can proceed.
The majority decision, which was written by Justice D. Arthur Kelsey, is a landmark victory for freedom of conscience and expression in the state. In its opinion, the court held that religious exercise is protected under the Virginia Constitution unless it threatens the public safety or order. In doing so, the court rejected Justice Antonin Scalia’s highly criticized test in Employment Division v. Smith, which gutted religious freedom in cases where the government law at issue is neutral and applies to everyone. At the federal level, Scalia’s problematic Smith opinion was the impetus for passage of the Religious Freedom Restoration Act—which just celebrated its 30th anniversary.
Rather than relying on Smith, the court in Vlaming v. West Point School Board examined the Virginia Constitution’s text and its framers’ views on religious freedom. The court explained that the Virginia Constitution provided more protection for religious freedom than even the United States Constitution. And it doesn’t just protect religious beliefs—the court declared—it also protects the right to exercise those beliefs in acts or speech in every part of life.
The court wrote that the issue was not whether the school board’s policies forbidding discrimination and harassment applied (as the school board had asserted) or did not apply (as Vlaming had asserted) to the compelled-speech situation Vlaming alleged. Rather, the issue was whether Vlaming’s sincerely held religious beliefs caused him to commit overt acts that “invariably posed some substantial threat to public safety, peace or order,” and if so, whether, under a “strict scrutiny” review of the claim, the government’s compelling interest in protecting the public from that threat could be satisfied by “less restrictive means.”
The court wrote that when religious liberty merges with free-speech protections, as it did in Vlaming’s case, mere “objectionable” and “hurtful” religious speech (or in Vlaming’s case, “nonspeech”) wasn’t enough to meet this strict scrutiny standard. Objectionable and hurtful religious speech, the court declared, poses no threat to the public safety or order. That meant that Vlaming’s refusal to use the student’s preferred pronouns because of his religious beliefs was protected even if others viewed his silence as offensive or hurtful.
The court also tossed out the school district’s argument that public school teachers must leave their free exercise rights at the schoolhouse gate. It wrote that Virginia’s Constitution “seeks to protect diversity of thought, diversity of speech, diversity of religion, and diversity of opinion, [and that] 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 Virginia Constitution forbade the district from terminating Vlaming because he refused to violate his religious beliefs.
The court then went on to address Vlaming’s compelled speech claims. It cited the Supreme Court’s recent ruling in the 303 Creative v. Elenis case, writing that his “claim challenges an attempt by the government to ‘compel an individual to create speech [he] does not believe’ and to ‘utter what is not in [his] mind’ about a question of political and religious significance.”
“[I]f liberty means anything at all,” Kelsey wrote, “it means the right to tell people what they do not want to hear…. All the more, it means the right to disagree without speaking at all.”
The court added that no court has ever held that referring to a transgender student by a preferred name while entirely avoiding the use of pronouns is sexual harassment under federal law—as the school board had alleged. In fact, Kelsey cited a court ruling that had held the opposite.
Vlaming’s attorney with Alliance Defending Freedom, Chris Schandevel, celebrated Thursday’s win, saying, “The West Point School Board violated [the] constitution[‘s] command when it tried to force Vlaming to endorse the school’s ideological viewpoints on gender identity. And the Virginia Supreme Court rightly vindicated Vlaming’s right to stand by his convictions in its decision.”
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Sarah Parshall Perry is a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Seth Lucas is a senior research associate in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
Photo “Peter Vlaming” by The Daily Signal.
When will this madness stop?