In a groundbreaking decision, the Virginia Supreme Court reinstated a high-profile lawsuit, thrusting into the spotlight a pivotal battle over a teacher's fundamental rights. Peter Vlaming, a dedicated French teacher with nearly seven years of service, found himself at the center of a controversial firestorm.
Represented by the powerhouse legal team from Alliance Defending Freedom, Vlaming's case challenges the very core of Virginia law.
The West Point School Board's decision to terminate Vlaming sent shockwaves through the community. At the heart of this contentious saga is Vlaming's staunch refusal to use personal pronouns for a student that contradicted the student's biological sex, a decision he defended as a matter of conscience. Despite his efforts to respect the student by using their chosen name and skillfully avoiding pronoun usage, school authorities imposed a stringent directive. They demanded he adhere to the superintendent's order to use pronouns aligning with the student's gender identity, not their sex, sparking a fierce debate over rights, respect, and personal beliefs.
This is the oral argument before the Supreme Court of Virginia in that case.
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Your life has been disrupted. You have good doctors and they support you. Your personal injury or long-term disability claim seems like a slam dunk. But there’s a problem: The insurance company doesn’t believe you. “You can’t be hurt that bad! Our medical experts say you’re fine.”
You need a trusted advocate who can uncover all the facts, tell your story to the skeptical insurance company, and get you the money you deserve. You don’t have to do this alone. Contact our Virginia personal injury and long-term disability lawyers today for a free consultation or denial letter review.
In a groundbreaking decision, the Virginia Supreme Court reinstated a high-profile lawsuit, thrusting into the spotlight a pivotal battle over a teacher's fundamental rights. Peter Vlaming, a dedicated French teacher with nearly seven years of service, found himself at the center of a controversial firestorm.
Represented by the powerhouse legal team from Alliance Defending Freedom, Vlaming's case challenges the very core of Virginia law.
The West Point School Board's decision to terminate Vlaming sent shockwaves through the community. At the heart of this contentious saga is Vlaming's staunch refusal to use personal pronouns for a student that contradicted the student's biological sex, a decision he defended as a matter of conscience. Despite his efforts to respect the student by using their chosen name and skillfully avoiding pronoun usage, school authorities imposed a stringent directive. They demanded he adhere to the superintendent's order to use pronouns aligning with the student's gender identity, not their sex, sparking a fierce debate over rights, respect, and personal beliefs.
This is the oral argument before the Supreme Court of Virginia in that case.
This podcast is brought to you by Virginia Injury and Disability law firm, Ben Glass Law.
Real legal help for real people
Your life has been disrupted. You have good doctors and they support you. Your personal injury or long-term disability claim seems like a slam dunk. But there’s a problem: The insurance company doesn’t believe you. “You can’t be hurt that bad! Our medical experts say you’re fine.”
You need a trusted advocate who can uncover all the facts, tell your story to the skeptical insurance company, and get you the money you deserve. You don’t have to do this alone. Contact our Virginia personal injury and long-term disability lawyers today for a free consultation or denial letter review.
But is there some limit? Could a school let's make it a math teacher Could a school division fire a math teacher who had a sincerely held belief, religious or not, that two plus two was five? And wanted to. And they said you cannot say two plus two equals five.
Speaker 2:Welcome to the Supreme Court of Virginia podcast. This podcast is brought to you by Ben Glass Law, a personal injury and long-term disability law firm with headquarters in Fairfax, Virginia. Listening to oral arguments is one of the best ways to both learn and stay abreast of the substantive and procedural aspects of practicing law in Virginia. By putting these public domain recordings into the form of a podcast, Ben Glass Law has made it easy for the public to access these recordings. All commentary that is not part of the actual court proceedings is that of the show's sponsor.
Speaker 3:Please call the first case.
Speaker 4:Vlaming versus West Point School Board at all. Sean A Boyles, j K LeBdalton, christopher P Chandevel, tyson C Langhofer, appellants Council. Andrew N Ferguson, solicitor General. Lucas WE Croslow, deputy Solicitor General. Graham K Bryant, deputy Solicitor General Azameca's Council for the Commonwealth of Virginia. Stacey L Haney, andrew P Selman, edward Williams, tanya Ferranzo, alan E Schoenfeld, appellants Council.
Speaker 5:Good morning your Honors, mr Chief Justice, and may please the court, chris Chandevel with the Alliance Defending Freedom, here on behalf of Appellant and former French teacher Peter Vlaming.
Speaker 5:In this appeal the school defendants fired Mr Vlaming not for something he said or for something he did, but for something that he couldn't say.
Speaker 5:So this is a case about compelled speech, and resolving it on the narrowest and best grounds means resolving each of our three primary claims on that basis. First, we plausibly alleged that the school defendants violated Mr Vlaming's state constitutional free exercise rights because, at the very least, the broad free exercise rights our Constitution provides require a heightened version of a strict scrutiny analysis, and the more robust but narrower protections that our Constitution provides for religious expression provide even more absolute constitutional protection, especially against compelled speech, in this case on a religious issue of public concern. Secondly, we plausibly alleged that the school defendants violated Virginia's RFRA and this court should reject the school defendants attempt to rewrite the exception in subsection E to become the exception that swallows the rule. Third, we plausibly alleged that the school defendants violated Mr Vlaming's state constitutional free speech rights because personally endorsing the schools of viewpoint on a controversial issue of public concern cannot be considered part of a public school teacher's official duties. And since I'm on the free speech claim, I'll just begin there with a couple of quick illustrations.
Speaker 3:Let me ask you this question. One of the difficulties in this case is that we're not dealing with a private citizen, but a public employee who's a school teacher. So clearly, he has constitutional rights, but we have to address the fact that he's in his role as a school teacher, and so how do we articulate a test that addresses those competing considerations?
Speaker 5:Yes, your Honor. So we do believe that his employment as a public school teacher does affect the analysis, both under the state free exercise protections and under the state free speech protections. So, on free speech, the analysis is the exact and scrutiny analysis that the US Supreme Court laid out in the Janus case, because this is a compelled speech. We don't simply do pickering, balancing. The court in Janus says that additional damage is done when someone is required to engage in speech, particularly on the issue of public concern like this on our free exercise claim. But again, to be clear, your Honor, the facts in this case are that my client was willing to use the student's preferred name. He went out of his way to accommodate the student's request to the best of his ability, to the extent that his conscience would allow that. So this isn't a case about preferred names, it's just a case about pronouns. The difference, your Honor, is when it comes to doing narrow tailoring analysis under Virginia RFRA, when it comes to doing, if the court does do, a strict scrutiny type analysis under Virginia's free exercise protections.
Speaker 5:There was an accommodation proposed by Mr Vlaming. It's the same accommodation proposed by the professor in the Maryweather case where the Sixth Circuit held. In that case, that provided a win solution for the school. That would have protected the teacher's rights and also protected. So the constitutional difference in this case is based on Mr Vlaming's sincerely held religious beliefs. So, according to his sincerely held religious beliefs, he is comfortable, according to his conscience, using the preferred name that the student wants, because names are not binary. You can have names because it's his constitutional rights that are at stake in terms of being compelled to speak. However, going back to Justice Russell's question, yes, your Honor.
Speaker 1:Is there some limit? Let's make it a math teacher. Could a school division fire a math teacher who had a sincerely held belief, religious or not, that two plus two was five? And they said you cannot say two plus two equals five.
Speaker 5:Yes, your Honor. So we do believe that there are limits, but the limits should be determined based on the text. So one limit, going back to Justice McCullough's question, is that a public school teacher, any public official, cannot be permitted to violate the constitutional rights of another person. So we'll hear a lot today, I'm sure from my friends on the other side, that what Mr Vlaming was trying to do here was violate someone's constitutional rights. We concede he cannot violate the constitutional rights of another person In terms of the question of someone who believes two plus two is five. In that instance that would be an incapacity of the person's own making. In this case, mr Vlaming was perfectly capable of teaching the assigned curriculum, but the school defendants fired him because he would not express the message consistent with their view. Playing on a controversial issue of public concern, I do hope to reserve some time for the Solicitor General. I promise to share eight minutes and I hope to save time for rebuttal, but I'm also happy to answer as many questions as the court has.
Speaker 6:Thank you. Does B versus York County School Division have any applicability here, with its focus on curricula or curricula?
Speaker 5:So we think the Lee-Click case is helpful in the sense that the Lee case held that the Garcetti test did not apply something. A lower standard applies for high school teachers. The question of curriculum this was not curriculum. The curriculum question is not an issue. In fact, at page I think it's 258 of the joint appendix, my friends on the other side actually page 251, my friends on the other side conceded there's a difference between the use of a pronoun and the delivery of curriculum. So the curriculum questions and whether that goes to official duties are separate from what's that issue in this case. So I would like to turn the podium over to my friends.
Speaker 5:Yes, your Honor, so the students right to basic education based on the facts we plausibly alleged was in no way inhibited in this case. Mr Blamings, non-use of pronouns caused no issues whatsoever in the. And again, your Honor, there was no intentional misgendering of this student within the classroom. There was the one accidental use during the hallway exercise. But the school defendants made clear that's not what they were firing him for. They were firing him for not affirmatively using biologically incorrect pronouns, which his conscience did not allow him to do. He was more than willing to avoid the use of pronouns altogether, so as not to offend or hurt the student and to just use the student's preferred name. That wasn't good enough for the school defendants. They wanted to compel him to speak a message that violated his religious beliefs, and that's where the constitutional violation occurred. And that's the limited nature, the narrowest and best grounds for resolving this case. So, with that said, I'll turn the podium now over to the solicitor general for the Commonwealth and reserve whatever remaining time the court will give me for a report.
Speaker 5:You have four minutes and 27 seconds. Thank you, thank you.
Speaker 7:Morning, mr Chief Justice. May it please the court, andrew Ferguson, on behalf of the Commonwealth, is Amicus Curie. Virginia's public schools have a fundamental obligation to protect the physical and emotional well-being of their students and to safeguard so. It is unequivocally true, both under the 14th Amendment's due process clause and under Virginia statutory. I strongly disagree, your Honor. The question under our proposed approach to this, which is strict scrutiny, the question in this case is what interest the school board identified to justify the decision to fire Mr Vlaming. At no point in this case has the school board argued or claimed that a compelling interest that justified the firing was protecting parents due process rights. If on remand to apply strict scrutiny, that became one of the compelling interests, that undoubtedly will cut strongly in the school's favor, unequivocally. But the school board in fact claims that the fact that the parents wanted this wasn't one of the factors that considered, because their view is that their policy applied without regard to what the parents were demanding. But to be very clear, your Honor, if on remand that became one of the proposed compelling interests, that would cut in the school's favor on strict scrutiny, to be absolutely clear. So if I can try to frame how the Commonwealth sees this case.
Speaker 7:Schools have to protect the rights of their students to be free from invidious discrimination. At the same time they have to protect the rights of their employees and their employees and students to practice their religion. Those obligations are going to conflict sometimes. This is a case where they arguably conflict. When they conflict, our view of the governing test is that the court should apply strict scrutiny to resolve the conflict. That means that for any burden imposed on religious exercise, the school board has to demonstrate that the burden was no more than absolutely necessary to vindicate in the government interest of the highest importance. Now I recognize that the Supreme Court of the United States in the Employment Division against Smith abandoned strict scrutiny as the governing test for most federal free exercise claims. But in our view the unique history and text of Virginia's statutory and constitutional free exercise provisions mean that this court should not follow Smith.
Speaker 2:This podcast is brought to you by Ben Glass Law, a statewide leader in the personal injury field. We help the injured and disabled make great decisions about their legal situations. Visit our website at benglaslawcom or call us at 703-591-9829 for more information and a free evaluation of your the strict scrutiny of the appropriate test when we're talking about a government employee.
Speaker 3:I'm thinking, for example, with Tinker, where the court was clear your constitutional rights don't end at the schoolhouse door. Now, that was a student whose rights was at stake, not a teacher, but the court was a little more forgiving in that context of school discipline and things like that, as opposed to strict scrutiny, which is a really high burden to me.
Speaker 7:So I have two responses to that, justice McCullough. The first is that our view is that strict scrutiny should apply within government employment and outside of it. Now let me qualify that answer. I think the government, just as a matter of fact, is generally going to have a much easier time demonstrating the compelling nature of its interest when it's enforcing its policies with regard to its employees, and I just want to provide an example of why. I don't think that's a particularly surprising position Fulton against the city of Philadelphia.
Speaker 7:The most recent strict scrutiny case that the US Supreme Court decided for the religion clauses, involved a city contractor that was performing services that would otherwise have to be performed by a city employee, and the question in that case was whether an anti-LGBTQ discrimination policy could overcome the city contractor's exercise of his religion, and the Supreme Court said under strict scrutiny. The answer is no. Now again, the Supreme Court held that the anti-discrimination interest is incredibly weighty and, as a general matter, the government will have a substantially easier time inside of employment than outside of employment and demonstrating the weighty nature of its interest. But I don't think we need a different test inside employment and outside of employment.
Speaker 1:I recognize you don't have a quack client here, but the strict scrutiny interest you raise and how this has to be played out is inherently factual, is it not? I?
Speaker 7:agree, Justice Russell. Thank you.
Speaker 1:And so if we are limited just to the allegations and the complaint, the answer may be different than after a trial, and so does it require factual development to know if strict scrutiny has been violated.
Speaker 7:So I think in some cases it will, in some cases it won't. How about this one? So I think at this I'm going to limit my answer to the procedural posture of the case. If the court accepts the Commonwealth's approach to this and applies Sherbert Yoder strict scrutiny, I think, as Mr Vlaming has alleged in his complaint, which is what the court is bound to accept at this stage, he has satisfied his burden, under strict scrutiny, to require the school board to demonstrate a compelling interest and that there was no less restrictive alternative available. If we apply Smith, how does that change your analysis?
Speaker 7:So if, justice Powell, if the court disagrees with us that this form of categorization is relevant, to be very clear the Commonwealth is of the view that the generally applicable and neutral categorization is irrelevant, because we think all burdens on religious liberty should be treated the same.
Speaker 7:If the court disagrees with us, we don't have a position.
Speaker 7:For example, we don't have a position on whether this was a generally applicable and neutral law.
Speaker 7:The reason we haven't taken the position is because we just don't think that this categorization is relevant. We think that Smith is not a correct interpretation of Virginia's free exercise positions. But if the court disagrees, our interest in this case isn't implicated. And so, if I can turn very briefly, our view about the application of strict scrutiny to the 1971 Constitution is informed largely by the fact that, when the 1971 Constitution was ratified, that was the method that the federal courts were applying to free exercise claims, irrespective of whether it was generally applicable and neutral, and at least an authority no less compelling than Professor Howard was of the view, contemporaneous with the ratification in 1971, that Virginia courts were doing the same thing. Our view, however, is that the mere fact that Virginia courts were taking, contemporaneously with the enactment of the 1971 Constitution. The same approach that the federal courts were taking in 1971, doesn't bind Virginia courts to continue doing whatever the US Supreme Court does after 1971. As a descriptive fact, in our view, strict scrutiny was the relevant test.
Speaker 1:As a matter of just plain history from the Virginia Declaration of Rights Statute of Religious Toleration, hasn't Virginia's religious clauses and statutes contained different wording than what was ultimately adopted as the First Amendment?
Speaker 7:That is unequivocally true, Justice Russell.
Speaker 1:Does that suggest a different test might be appropriate.
Speaker 7:So it's a slightly complicated answer, so you'll bear with me. I think that if the Constitution we were construing were the 1776 Constitution, that is the history that would be most important here and frankly, if Sherbert and Jovert would not be that relevant to the inquiry. But we aren't actually construing the 1776 Constitution, we're construing the 1971 Constitution. To be sure, it uses the same language as the 1776 Constitution but, as the court recognized in Bruin, the same words, when transported and lifted into a new statute, can have a different meaning in that new context than it had when it was originally adopted. Now our second order position on that is we don't think strict scrutiny doesn't align with what the history of 1776 suggests and in page 46 of our brief we discussed that there's a fair amount of scholarship at this point that shows that when courts were implying equitable and I see that my time has expired, mr Chief Justice, may I finish the answer, thank you.
Speaker 7:When courts were implying equitable exceptions to generally applicable and neutral laws in the 18th and 19th centuries, the sort of analysis they were doing was quite similar to Sherbert and Jovert strict scrutiny in the following sense the first question that the courts would ask is what was the purpose, the legislative purpose animating the law, number one. Number two, is that purpose implicated by the application of the law to this particular person. And number three does that application implicate their free exercise rights? That's quite similar to Sherbert and Jovert strict scrutiny. Thank you, mr Chief Justice. Thank you.
Speaker 8:Good morning, mr Chief Justice, and may it please the court, my name is Stacy Haney. I'm here on behalf of the Apolles. I have with me my co-counsel, alan Schoenfeld, who has been admitted pro-Hawk Vichay, and I request that the court permit him to argue.
Speaker 1:The question is granted. Thank you.
Speaker 9:Thank you very much, mr Chief Justice, and may it please the court, alan Schoenfeld for the Apolles. Whatever the court views this claim, under whatever standard, the critical point is that when a teacher is in the classroom in front of students who are required to be there delivering the school board's curriculum, this is the molten core of when a public teacher's religious belief does not exempt him from compliance with school non-discrimination policy. That's true under any standard. This is an easy case under Smith and there's good reason to retain it. As Justice Barrett explained in her concurrence in Fulton, where the court declined after repeated invitations to overrule Smith, this is a neutral policy generally applicable that requires non-discrimination against all students For the reasons-.
Speaker 1:How does calling all students transgendered or non-transgendered by their given name discriminate against either?
Speaker 9:I don't think calling students by their sorry, how does calling them by their given names discriminate? Or chosen name? So I think the practice of referring to students by their chosen name in a French class is not the act of discrimination that we're talking about here. It is the refusal to use the students preferred pronoun.
Speaker 1:If he doesn't refer to any students by pronoun, how does that discriminate against any student on the basis of race, gender identity, sex? What have you If he treats all students exactly the same by using their chosen name? How does that discriminate?
Speaker 9:So I think one of the things that Mary Weather got right, in my view, is it recognizes that not using pronouns at all in a classroom is what it called a practical impossibility, and it changes the nature of the classroom. A teacher refusing to use pronouns in an effort to not comply with the discrimination policy distorts the pedagogical process in a way that makes it obvious to everyone there exactly what he's doing. Say, you have a teacher who refers to all of the male students in the classroom as Mr Smith, mr Jones, mr Green, then refers to all of the women by their first name. That's a circumstance where it's clear what the teacher intends and it's clear what the student is doing.
Speaker 1:He's isolating and marginalizing the female students in the classroom, refusing Well, and he's treating one group males different than another group females. If he calls them all by their first name, he's not.
Speaker 9:I understand that, but avoiding the use of pronouns in the classroom in order to avoid compliance with the non-discrimination policy seems to me to be categorically different from a circumstance where the teacher is just using everyone's preferred names. The point is, it's inevitable and we know, because Mr Vlaming slipped up at least once, that pronouns are going to come into issue in the class and the refusal Do you agree that he was not fired for that?
Speaker 1:He was fired for activity that had yet to occur, his refusal to use the pronouns going forward.
Speaker 9:So I agree with you that he was not fired for a momentary slip up. That's not an issue in this case. But I don't agree that he was terminated because of future activity. He resolutely, repeatedly refused to comply with the non-discrimination policy. That was an action that he took in real time and his termination resulted from that. So I don't think that this is a case where we're talking about momentary slip ups, but it's also not a case where the court needed to Sorry, the school board needed to project into the future as to what was going to happen. So he made his position clear and again, just returning to the sort of motive analysis here, a public school employee is not at liberty to declare that he will not comply with a neutrally applicable policy. That is part of his duties as a classroom teacher.
Speaker 3:But the problem is you have a policy and you have a constitutional right. So you have policies in the abstract and, yeah, that's in subordination. But then we have this problem of compelled speech and this problem of religious rights and that's the collision, and normally one would think constitutional rights are on a higher plane than a mere school board policy. So we have to square that circle.
Speaker 9:Sure. Let me address what I see as three points in there. The first one is these are constitutional rights on a collision course, because a student has a right not to be discriminated against on the basis of sex and discriminating against a student on the basis of gender identity is discrimination on the basis of sex. That's true. The court doesn't need to address this issue, but I think that's true under the United States Constitution, it's certainly true under Title IX and I think it's true under the Virginia Human Rights Act.
Speaker 9:But setting that aside and going back to your question with respect to the free speech issue, Garcetti provides the framework here and I think Lee provides the exact framework here. That's a K-12 school. I disagree with my friend on the other side that Lee held that Garcetti is inapplicable in primary and secondary schools. What it says is we won't decide the issue and we'll decide it under pickering balance. But every other court to have addressed that question decides that Garcetti does in fact apply to teachers in secondary schools. So the balance of the interest on the free speech claim is that when you are a public school employee and you are delivering the state's message because the only reason you are in front of this class with an opportunity to address them, and the reason you are addressing them is to deliver curriculum and in that mode you are a state actor, your speech is imputed to the government.
Speaker 3:I suppose the legislature decides that pro-lifers are put upon, discriminated against minority. So they pass a non-discrimination statute and they say when you got a teacher's curriculum and you have to refer not to a fetus but to an unborn human child, could the teacher in that circumstance say that violates my? I'm pro-choice. I think that's wrong. I think you're forcing me to speak a message I can't adhere to. So is that? How is that?
Speaker 10:any different. Hey, this is Ben Glass, just budding in here. If you like this podcast, I've got two others you might like listening to. The first are the oral argument recordings of the Court of Appeals of Virginia podcast. The second, if you're an attorney, and particularly if you're a law firm owner, go over and listen to the Renegade Lawyer podcast. We talk about living life to the fullest using the vehicle of a law firm to get there. Check us out and have a great day.
Speaker 3:In other words, are we opening the door to a whole bunch of under the guise of non-discrimination statutes and then to enforce ideological conformity?
Speaker 9:I don't think so and, to be frank, I would need to think through the issue more. But I'm not sure a teacher would have a claim in those circumstances to say that if the school board has decided as a matter of policy and it is part of the curriculum that the teacher is teaching. The proposed VDOE regulations on transgender students currently, as proposed, would require teachers to address their students using the pronoun consistent with their sex assigned at birth. I don't think a teacher would have a claim. That's a problem in reverse, exactly, but I don't think a teacher would have a claim there either. I think we can be consistent. It's possible a student in those circumstances might be able to claim that using the wrong pronoun in a classroom setting violates their rights under title nine.
Speaker 1:Let me ask the limits question in reverse. If a school board decides that it wants to accept two plus two equals five is correct. Can you fire a math teacher who refuses to say it's correct?
Speaker 9:I think so. I agree with my friend on the other side. That seems to me to be professional ineptitude.
Speaker 1:Right, you can't have someone who just can't get the math, but it's the school board policy we want to accept. Two plus two equals five.
Speaker 9:So I think that if the school board it's hard to imagine how teaching incorrect math is in the furtherance of anyone's professional obligations and, as Garcetti makes clear, a school board can't define teachers or any public employees professional obligations in a way that sort of opens the door to a school board getting the benefit of the Garcetti analysis for anything it wants to have teachers teach.
Speaker 1:So there are some truths that the school board does get to say, but some that it doesn't.
Speaker 9:I think that there is certain information that a school board can set. To be clear, the Commonwealth of Virginia recognizes this student as male. He underwent a gender transition, his name has been legally changed, the marker on his birth certificate has been changed. I think Mr Vleming's suggestion that he can disagree with that conclusion on the basis of his free speech or free exercise rights goes too far in the constitutional analysis. So I think your example is obviously a good one. There are limits to what a school board can require, but I think that's taken care of in the Garcetti framework because it cabins what a school board can do, or what any public employer can do in defining the responsibilities, and I would imagine that one constraint on that is just rationality. I don't think that you can have someone teach information that everyone agrees is categorically wrong. I understand your point that there's a debate about what the truth is and what the truth is not, but the case law recognizes, I think, fairly consistently, that transgender people exist and they exist in the gender that they prefer and that they have transitioned into, and denying the existence of a student is precisely in what the discrimination inheres in a classroom.
Speaker 9:To go back to the question about the motive analysis for the free exercise claim. There's a lot that was said by both the Commonwealth and my friends on the other side that I disagree with in terms of the characterization of Fulton, the characterization of the case law as it existed prior to Smith. There's a long legacy of case law going back to Jacobson versus Massachusetts and Pierce versus Massachusetts, where the court recognized that neutral, non-discriminatory policies don't discriminate against people of religious faith, even when they're required to comply with it. But we explain in our brief why we think we satisfy strict scrutiny and at some point I'd like to get to the riffraff claim as well.
Speaker 9:But if you're trying to figure out what the right analysis is somewhere between Smith and strict scrutiny, I think it's fairly clear that strict scrutiny is not the right mode of analysis here. There's got to be some place for public employees to require employees or public employers to require employees to comply with policy or rules or regulations that doesn't allow them an exemption and does not require the employer to demonstrate in each case a factually, potentially factually intensive, compelling interest in narrow tailored requirement. Justice Barrett recognizes as much in Fulton, where I think she makes clear that strict scrutiny is probably not the right analysis, and I think every state court that has interpreted its state constitution to require something more than Smith has said exactly the same thing. The New York Court of Appeals in Sario made very clear that it was unlivable to have strict scrutiny apply to every point of If strict scrutiny is a struggle when you have a public employee who's in the school system.
Speaker 3:On the other hand, your answer seems to suggest and we're very religiously pluralistic in this country, You've got Buddhists and Protestants and Catholics and Jews, and you name it. And so to say all it just gets swept aside so casually is problematic too, because what you seem to suggest is that it counts for essentially nothing as long as you just enact a policy.
Speaker 9:That's it, I don't think that's true. So we're not talking about just any policy here. We are talking about a policy that federal and state case law recognizes is required for schools, and I think we can all agree that rooting out discrimination against students who are captive audiences in their public schools, and making sure that they are not subject to isolation and harm in the schools is a critical and compelling interest.
Speaker 1:So this isn't and that may be, that is right, but on this record, with the allegations and the complaint as they exist right now, can you show that discrimination? Given what has been pledged, it may be different at trial. It may be that the one-time slip-up is an impossibility to not avoid time and time again, and you may be right. But on the record we have here, aren't we limited to what they've pledged?
Speaker 9:Absolutely and on the facts alleged in the complaint, there's more than enough to show that the conduct here both violated the non-discrimination policies and actually discriminated against the student. There was the one slip-up and again, this is not. We all make mistakes and we all have to live with grace. This is not about one slip-up. This is about a resolute refusal to comply with the non-discrimination policy that led the student to leave the class.
Speaker 1:What exactly was the discrimination? How was this student treat under his proposed accommodation, treated differently than any other student who was not transgender?
Speaker 9:So it is the refusal to use preferred pronouns, whether so requiring a teacher to refer to students using their correct preferred pronouns. That's the application of the non-discrimination policy. I understand your question is why wasn't it a suitable accommodation to allow him to refer only to students by their preferred names and not their pronouns? Again, I think that type of exclusionary conduct excluding from your vocabulary words that you would use in the ordinary course in order to not violate a non-discrimination policy is a form of discrimination. I think the effect on students is to feel isolated. And again, the sixth circuit.
Speaker 1:That feeling that you're talking about may be correct, but it's not pled here. We don't have that here.
Speaker 9:There's an allegation in the complaint that the student left the class because of Mr Flaming's refusal to comply with the non-discrimination policy. That, in my view, suffices. As alleged on the complaint, there were conversations with. This is all from the complaint. There was the slip up, which I think we all acknowledge was a form of discrimination. He used the student's incorrect pronoun See you down the street tonight and that has to be taken in the context not of a momentary lapse in judgment, but of a resolute refusal ever to comply with the policy. There were conversations with the school personnel and the family, requesting that Mr Blaming use the student's preferred pronoun and his refusal to do all of which the student was aware of and all of which led the student to leave the classroom.
Speaker 9:Schools don't need to wait until something truly toxic happens in a classroom to determine that a non-discrimination policy has been violated. The school was under no obligation to wait for Mr Blaming to refer to the student again, accidentally or purposefully, as a she in order to terminate him for the non-discrimination purposes, and it was inevitable that was gonna happen again, just as it happened once accidentally. So to be clear, the termination here was not as a result of one momentary lapse. It was a result of an outright refusal to comply with the non-discrimination policy, and a school acts well within its rights when it terminates an employee's, so would you turn? When you finish answering?
Speaker 9:would you turn your? Attention to Riff from.
Speaker 9:Absolutely your Honor. So I think we've been going back and forth a little bit about the strict scrutiny, analysis and compelling interest and narrow tailoring. But there are two threshold issues here that I think allow the court not to have to get into that, at least as a statutory matter. And for the reasons we've been talking about, I don't think you need to as a constitutional matter either. The first is the application of subsection E, and I want to be careful about the language that I use here because my friend on the other side suggested that we were misquoting. But a public agency gets the benefit of subsection E where its action is necessary. Nothing in the statute prevents a public agency from maintaining safety, health and discipline, and requiring a public employee to comply with a non-discrimination policy that, on its face, is intended to ensure the safety and health of students bring the school board's actions well within the ambit of subsection.
Speaker 3:E. This of RIFRA doesn't mean much.
Speaker 9:You just brandish the flag safety, health, and then this other language is swept aside, I disagree, and I think either the Commonwealth or the Peleys on the other side make the point that our argument everything the state does is in the interest of safety or health and so it wouldn't leave very much of RIFRA.
Speaker 9:I think that's wrong. The one Virginia RIFRA case I'm aware of, horan, which is about possession of an eagle feather by Native American religious adherents. There was no attempt to justify that on the basis of health or safety. It was for environmental reasons, and so subsection E would have no application there. And you can imagine lots of policies that a school board might try to implement that have nothing to do with health or safety. A school offers a school lunch to students and a student says you're not offering something that's kosher or halal and it substantially burdens my religious beliefs, and so the school is required under RIFRA to make that sort of accommodation. I don't think that there's going to be a kind of free floating invocation of health or safety here, and I think the case law firmly established.
Speaker 3:I'm not so sure about that. Go ahead, Because you defend the statute and it's not that hard to imagine safety, whatever rationale or health rationale for the statute.
Speaker 9:So I look. I understand that there's always a concern about floodgates in these circumstances, but this is a singularly weighty interest that the West Point schools are trying to advance here. I think every case that has addressed this type of issue has concluded that there's a compelling interest in trying to root out discrimination and more recent cases recognize that in the context of gender identity. You have Boyertown, Highland, Local Kluge, Grimm from the Fourth Circuit, Bostock. So we're not talking about a kind of willy-nilly indication of health or safety.
Speaker 1:And Bostock's three cases, but referring specifically to Stevens within the Bostock Ambient Albeit for Title VII purposes. Did the court define sex as a immutable biological characteristic?
Speaker 9:I can recall the analysis specifically with respect to that. But the upshot of the case is that gender identity is a form of sex discrimination and I think every court that's addressed the question has concluded that rooting out discrimination on the basis of sex is a compelling interest for these purposes. But I apologize, I just want to get back to the second of the threshold questions because I do think it's important. The second question is whether the government action here. I didn't mean to suggest that your question is not important, I just wanted to make sure I get this out. The second point is that rifer is only triggered when there's a substantial burden on someone's religious observance. And I want to be very clear about what we mean when we talk about substantial or incidental here. I don't question the sincerity of Mr Flaming's beliefs at all, nor do I question the fact that using these pronouns, in his view, interferes with his religious beliefs and requires him to profess a lie. What incidental and substantial mean in the context of a public employee standing in the classroom in front of students who are required to be there, is that he has. In every other aspect of his life he is free to observe his religious observance, but when he takes on the role of a public teacher in a public school and he expects that he sheds some of his constitutional rights at the schoolhouse gates, the burden on him in being required to comply with a neutral non-discrimination policy is incidental within the meaning of rifer.
Speaker 9:I think it's worth remembering that, as the Supreme Court recognized in Connick versus Myers, it was what the court called unchallenged dogma until the middle of the 20th century, that public employees had no constitutional rights under the First Amendment once they enter into their employment.
Speaker 9:I don't think the court needs to go that far here and certainly the Supreme Court, interpreting the US Constitution, has recognized that there are some limits to that. But the point is that when you take on a role of a public employee, the policeman has a right to profess his goals or his views, but he doesn't have the right to be a policeman. When you take on the role of a public employee and part of your employment is delivering the curriculum that the school board has in the manner in which the school board has prescribed it, any burden on your religious beliefs in that context, where your speech is deemed to be the speech of the government, is incidental as a matter of law for purposes of RIFRA and so those two threshold arguments, I think, allowed the court to dismiss the RIFRA claim on the pleadings and not necessarily get into the compelling interest under RIFRA.
Speaker 9:Thank you very much. Thank you, council.
Speaker 5:You have four minutes and 26 seconds. Thank you, your Honor. So six quick points in response, if I can. I'll try to keep them quick. The first three in response to questions that your Honor has asked, my friends on the other side and the Solicitor General.
Speaker 5:First of all, justice Mann, there was a question about parental rights and how parental rights factor in to the analysis here. This is a case about compelled speech and we think that distinction is very important. So, whereas parents may have a parental right to tell a school to tell a teacher listen, we don't want the teachers in the classroom quote unquote, affirmatively misgendering our student or another. Parent might have a right to tell a teacher, to tell us a school. We don't want the teachers in the school to be affirmatively using preferred pronouns for my child because my child is not transgender. Parents may, and likely do, have a right to tell a school that what parents do not have a right is to compel schools and to compel teachers to affirmatively express messages that they don't believe. So parents do not have a right to tell teachers that they are required to use biologically incorrect pronouns teachers like my client. But the same rule holds for the other side. A parent wouldn't have a right to tell a teacher against that teacher's religious beliefs. You are required to use biologically correct pronouns If that use of biologically correct pronouns violated that teacher's free speech rights or free exercise rights. So our rule protects both sets of teachers against compelled speech. Their rule protects neither of them, and we think that's important.
Speaker 5:And, justice McCullough, to get to your question, what if a school decided under our curriculum, we think an unborn child is an unborn child and so we want teachers to use that language, even if it violates their sincerely held religious beliefs and even if it means personally endorsing that view and I think my friend on the other side was very honest. It sounded like he conceded the school could do that. The school could require a teacher to personally endorse a viewpoint on a controversial issue like abortion. Our rule would protect that teacher, because our rule protects all teachers against compelled speech, compelled endorsement of the school's views on a controversial issue of public concern. Now there's a difference between teaching curriculum and teaching the school's theory and the school's beliefs and personally endorsing those viewpoints.
Speaker 5:This case, compelled pronoun usage, is about personal endorsement of viewpoints and that's why we think this is the easier case. Third, justice McCullough, you asked a question about whether or not strict scrutiny is the right test for government employees. We do think the fact that Mr Vlaming is a government employee changes the analysis. We just don't think that tiers of scrutiny approach.
Speaker 3:Strict scrutiny is just applied distinctively in this context.
Speaker 5:Well, that's the solicitor general's position. We think the better position is not to do tiers of scrutiny at all. So tiers of scrutiny were invented in the 1950s and the 1960s. So we've cited an article by Professor Joel Elysea in our reply brief that says the better approach is to get back to the history and tradition and the text of the provision that issue. That's what the US Supreme Court did in Bruin. We think that's the better approach.
Speaker 1:Under that approach the government doesn't have an opportunity to come in and balance away the rights Given the history comment, do you agree with the solicitor general that it is 1971 and not 1776 that establishes original public meaning of?
Speaker 5:the clauses. So we think, at the very least, 1971 establishes that we're not doing a Smith analysis, that we're doing at least a heightened strict scrutiny. But we do think the better view is to go all the way back to 1776 and 1786, because the text in those provisions has not changed since they were adopted and there's no indication that when it was re-ratified there was any intent to limit the scope of those provisions. So, as we've laid out in our brief, the text does provide much more robust protection for free exercise. There's the reference to according to the dictates of conscience. We think that makes it clear that exemptions are required.
Speaker 5:There are also more robust protections for religious expression, and so, because this case is about religious expression, we think this case should be decided along those grounds.
Speaker 5:And again, no public employee should be required to violate their sincerely held beliefs on issues of religion, unless not doing so would violate the constitutional rights of someone on the other side.
Speaker 5:And if I could just say finally in closing, your honor, in Barnett, in Rousseau, in the opinions of the justices to the governor case at the Massachusetts Supreme Court, those courts all held that it was a violation of the First Amendment to require teachers in public schools or public school students to say a pledge of allegiance to the flag, because it was an attempt to prescribe what shall be orthodox in issues of politics, religion, nationalism or other matters of opinion. We believe that compelled pronoun usage is the compelled flag salute debate of our time and just like with that debate over compelled pledge of allegiance, regardless of whether or not some of the proponents of compelled pronoun usage might be well-intentioned, this is a badly misguided policy as a proposed solution for gender dysphoria and is a flatly unconstitutional policy as a proposed solution for quiet, respectful dissent. For these reasons, we ask the court to reverse the judgment below. Thank you, counsel.
Speaker 2:The proceeding has been a production of Ben Glass Law, a Fairfax, virginia-based personal injury and long-term disability law firm. For a free evaluation of your claim, visit us at benglaslawcom or call us at 703-591-9820.