Judge orders Loudoun schools to reinstate teacher, calls suspension unconstitutional, ‘vindictive’

Loudoun County Public Schools has been ordered by a judge to reinstate physical education teacher Byron Tanner Cross, who was suspended days after telling the school board he would not refer to transgender students by their preferred pronouns because of his religious beliefs.

In his ruling, Loudoun County Circuit Judge James Plowman said actions taken by the school system were unconstitutional, and that the school system’s handling of the situation was “extreme” and “vindictive.”

Cross, who teaches at Leesburg Elementary School, was placed on leave less than 48 hours after telling the school board: “I’m a teacher, but I serve God first.”

“I will not affirm that a biological boy can be a girl and vice versa because it’s against my religion,” Cross said.”It’s lying to a child, it’s abuse to a child and it’s sinning against our God.”

Cross is represented by Alliance Defending Freedom, a nonprofit Conservative legal organization.

In his ruling, Plowman wrote Cross “was speaking as a citizen, not in his official capacity,” as a teacher. The board meeting occurred “during nonworking hours at a forum where public comment was invited.”

The school system, in its filings, and in a Friday hearing, argued it suspended Cross not for what he said, but for the disruption it caused.

The school system said it had received six emails from parents who didn’t want their students to have contact with Cross.

The day after his statements, Cross had participated in school. Plowman was unconvinced Cross’s presence in school was distracting. “There was simply an absence of evidence,” Plowman said. “No actual disruption to school operations occurred.”

On balance: “The Plaintiff’s interest in expressing his First Amendment speech outweighs the Defendant’s interest in restricting the same,” said Plowman, who added that Cross’s statements “did not serve to meaningfully disrupt the operation or services of Leesburg Elementary School.”

By suspending Cross, and forbidding him from coming on school property, the school system “adversely affected his constitutionally protected speech,” since he was forbidden from participating in future public school board forums.

According to Plowman, school officials suspended Cross based on “the fear that Plaintiff will refuse to follow mandated school policy.” Judge Plowman called that a “leap.”

“The ‘comments’ made by the Plaintiff have in their very core, proclamations of faith and how he is to apply them to his life. The expectation of the Defendants, in addition to the disruption previously relied upon, is the fear that Plaintiff will refuse to follow mandated school policy,” wrote Plowman.

Plowman said Cross’s comments were made without a policy being in place, and that it’s “possible to not follow the expectations of the policy, and at the same time, not violate its mandates. As such, the anticipatory violation that the Defendants expect, due to his faith, is misplaced.”

In weighing whether to issue the emergency injunction sought by Cross’s lawyers, asking Plowman to immediately order the reinstatement, the judge said the school system’s actions could cause Cross irreparable harm: “Plaintiff has been suspended due to his speech, barred from further speech, and similarly situated employees have been chilled from speech because of Defendants’ actions.”
Plowman said the school system’s reaction to the situation was “extreme,” in sending an email to the Leesburg Elementary School community to tell them Cross was on administrative leave: “An action the Court sees as an unnecessary and vindictive act given the end of the school year was so close.”
In conclusion, Plowman granted Cross’s lawyers’ request for a temporary injunction, as his civil suit continues: “Defendants shall immediately reinstate the Plaintiff to his position as it was prior to the issuance of his suspension and remove the ban that was placed upon him from all buildings and grounds of Loudoun County Public Schools.”
The group representing Cross was pleased with the judge’s ruling. “Educators are just like everyone else — they have ideas and opinions that they should be free to express,” said Alliance Defending Freedom president Michael Farris.
“Loudoun County Public Schools will have no comment,” said spokesman Wayde Byard, in response to a WTOP request for reaction to the judge’s ruling.

Neal Augenstein

Neal Augenstein has been a reporter at WTOP since 1997. Through the years, Neal has covered many of the crimes and trials that have gripped the region. Neal's been pleased to receive awards over the years for hard news, feature reporting, use of sound and sports.

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