Vlaming v. W. Point Sch. Bd.

• Docket Number: Record No. 211061
• Decision Date: 14 December 2023
• Citation: 895 S.E.2d 705
• Parties: Peter VLAMING v. WEST POINT SCHOOL BOARD, et al.
• Court: Virginia Supreme Court

895 S.E.2d 705

Peter VLAMING

v.WEST POINT SCHOOL BOARD, et al.

Record No. 211061

Supreme Court of Virginia.

December 14, 2023

FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY, Jeffrey W. Shaw, Judge

Christopher P. Schandevel(Shawn A. Voyles; J. Caleb Dalton; Tyson C. Langhofer; McKenry Dancigers Dawson; Alliance Defending Freedom, on briefs), for appellant.

Alan E. Schoenfeld(Stacy L. Haney; Andrew P. Selman, Richmond; Tania Faransso; Edward Williams; Wilmer Cutler Pickering Hale and Dorr; Haney Phinyowattanachip, on brief), for appellees.

Amicus Curiae: The Commonwealth of Virginia; Andrew N. Ferguson, Solicitor General (Jason S. Miyares, Attorney General; Charles H. Slemp III, Chief Deputy Attorney General; Erika L. Maley, Principal Deputy Solicitor General; Lucas W.E. Croslow, Deputy Solicitor General; Graham K. Bryant, Deputy Solicitor General; Annie Chiang, Assistant Solicitor General; M. Jordan Minot, Assistant Solicitor General, on briefs), in support of appellant.

Amicus Curiae: The National Association of Scholars(Joshua Hetzler; Randall L. Wenger; Jeremy L. Samek; Founding Freedoms Law Center; Independence Law Center, on brief), in support of appellant.

Amicus Curiae: The National Association of Scholars(Joshua Hetzler; Randall L. Wenger; Jeremy L. Samek; Founding Freedoms Law Center; Independence Law Center, on brief), in support of appellant.

Amicus Curiae: The Institute for Faith and Family (Bruce A. Johnson, Jr., on brief), in support of appellant.

Amici Curiae: Quentin Van Meter, M.D., Bill Shaw, M.D., Daniel Swartz, M.D., James Anderson, M.D., Paul Rockswold, M.D., M.P.H., Carolyn Sue Seepe, M.D., M.P.H., Scott Armistead, M.D., and Kurtis S. Elward, M.D., M.P.H. (Mary E. McAlister; Child & Parental Rights Campaign, on briefs), in support of appellant.

Amicus Curiae: Mountain States Legal Foundation(Zhonette Brown; Mountain States Legal Foundation, on briefs), in support of appellant.

Amicus Curiae: Liberty Justice Center(Jeffrey D. Jennings; Liberty Justice Center, on brief), in support of appellant.

Amici Curiae: The Center for Religion, Culture, and Democracy and 18 Scholars (Jordan E. Pratt; Rebecca R. Dummermuth; First Liberty Institute, on brief), in support of appellant.

Amicus Curiae: Women’s Liberation Front (Melvin E. Williams; Jennifer C. Chavez; Williams & Strickler; Women’s Liberation Front, on brief), in support of appellant.

Amici Curiae: The Family Foundation, Deleware Family Policy Council, Hawaii Family Forum, Illinois Family Institute, Nebraska Family Alliance, Wisconsin Family Action, Concerned Women for America, and Pacific Justice Institute(James A. Davids; The Family Foundation, on brief), in support of appellant.

Amici Curiae: American Civil Liberties Union and American Civil Liberties Union of Virginia (Eden B. Heilman, Richmond; Joshua A. Block; American Civil Liberties Union Foundation of Virginia; American Civil Liberties Union Foundation, on brief), in support of appellees.

Amicus Curiae: Professor Alan Taylor(Aisling O’Shea; Daniel J. Richardson; Pardis Gheibi; Sullivan & Cromwell, on brief), in support of appellees.

Amici Curiae: Senator Timothy Kaine, et al. (John F. Cafferky; Juli M. Porto, Fairfax; Donald B. Verrilli, Jr.; Dahlia Mignouna; Leonardo Mangat; Blankingship & Keith; Munger, Tolles & Olson, on brief), in support of appellees.

Amici Curiae: Equality Virginia and Others (S. Douglas Bunch; Peter Ketcham-Colwill; Ryan A. Wheeler; Cohen Milstein Sellers & Toll, on brief), in support of appellees.

PRESENT: All the Justices

OPINION BY JUSTICE D. ARTHUR KELSEY

The West Point School Board terminated the employment of Peter Vlaming, a high school French teacher.Vlaming claims that he lost his job not because of something he had said — but because of what his conscience would not allow him to say.In class, Vlaming referred to a transgender student by the student’s preferred name and avoided the use of third-person pronouns when referring to the student.Vlaming claims that the School Board ordered him to use government-mandated pronouns in addition to using the student’s preferred name.The School Board fired Vlaming for refusing to do so.

Vlaming sued the West Point School Board, the principal and the assistant principal of the high school, and the superintendent (collectively, the "School Board"), alleging constitutional, statutory, and breach-of-contract claims.Examining only the allegations in Warning’s complaint, the circuit court dismissed Warning’s claims, finding that they failed to state legally viable causes of action.Disagreeing with the circuit court, we reverse and remand for further proceedings.

I.

[1, 2] Without hearing any evidence, the circuit court ended this case at its earliest stage by sustaining the School Board’s demurrer and granting the School Board’s plea in bar.Given this procedural posture, we accept on appeal the facts alleged in Warning’s complaint as true and draw any reasonable inferences from those facts in his favor.See, e.g., Eubank v. Thomas,300 Va. 201, 206, 861 S.E.2d 397(2021);Plofchan v. Plofchan,299 Va. 534, 547-48, 855 S.E.2d 857(2021).We apply the same presumption of correctness to allegations challenged by a plea in bar when, as here, the plea seeks to duplicate the function of a demurrer and when no disputed facts are resolved following an evidentiary hearing.SeeCalifornia Condo. Ass’n v. Peterson,301 Va. 14, 20-21, 869 S.E.2d 893(2022);Our Lady of Peace, Inc. v. Morgan,297 Va. 832, 847 n.4, 832 S.E.2d 15(2019).

So viewed, Warning’s complaint alleges the following facts.Warning taught French at West Point High School for six years.Consistently giving Warning positive evaluations, the School Board granted him "continuing contract status."SeeJ.A.at 5, 42.Near the end of the 2017-18 school year, Warning learned that a biologically female student (referred to in this litigation as "John Doe") intended to transition to a male identity.Id at 6-7.Previously a student in Warning’s Exploratory French and French I classes, Doe planned to enroll in Warning’s French II class for Fall 2018.

At the beginning of the school year, Warning ordinarily asked each student to pick a French name that the student preferred to use for that class and any subsequent French classes.Prior to the beginning of the 2018-19 school year, Warning "became aware that [Doe] desired to be called by a more culturally masculine name instead of [Doe’s] culturally female names (both [Doe’s] given and French names)."Id. at 7.Seeking "[t]o avoid drawing unwanted attention" to Doe, Warning asked the entire French II class to "pick new French names for the semester" despite having already chosen a French name in French I "so that [Doe] would not be the only one changing names."Id.

Toward the middle of the fall semester, Warning alleges, he also became aware that Doe wanted to be referred to by masculine pronouns.For Warning, this request asked him to violate his conscience.He holds religious and philosophical convictions that reject the idea that "gender identity, rather than biological reality, fundamentally shapes and defines who we truly are as humans" and instead accept as a verity that "sex is fixed in each person, and that it cannot be changed, regardless of our feelings or desires."Id. at 2-3.In the "ongoing public debate regarding gender dysphoria," Warning alleges that he cannot in good conscience "use pronouns that express an objectively untrue ideological message."Id. at 2. "Mr. Warning’s conscience and religious practice," the complaint states, "prohibits him from intentionally lying, and he sincerely believes that referring to a female as a male by using an objectively male pronoun is telling a lie."Id at 11.

Seeking to respect Doe’s preferences while remaining true to his conscience, Warning used Doe’s "new preferred names (both French and English),"id at 7, and avoided using third-person pronouns when referring to Doe.To limit the risk of Doe feeling singled out, Vlaming "also rarely, if ever, used third person pronouns to refer to any students during class or while the student being referred to was present."Id."In class discussion," the complaint explains, "if Mr. Vlaming refers to a student, or their work, it is rare that he uses a pronoun.Rather he would say, for example, ‘What do you think about John’s answer?’ or, ‘Was John’s answer correct?’ "Id.

On October 22, 2018, Vlaming met with Doe and explained that "he was trying to honor [Doe’s] wishes" by using Doe’s preferred name and "would not use the female pronoun" to refer to Doe when the two of them were present.Id. at 8."During the meeting," the complaint alleges, Doe "did not take issue with, or mention at all, Mr. Vlaming’s practice of not using pronouns in class.The meeting ended on a good note, and the student seemed to be satisfied and comfortable with the situation."Id.Later that day, Vlaming called Doe’s parent.The parent told Vlaming that Doe "had thought the meeting had gone well."Id.When Vlaming explained his reasons for avoiding the use of pronouns, the parent told Vlaming that he"should leave his principles and beliefs out of this and refer to [Doe] as a male."Id. at 9.

On October 23 and 24, Vlaming met with Assistant Principal Suzanne Aunspach to discuss Vlaming’s treatment of Doe.Aunspach told Vlaming, "that he should be aware of the law."Id. at 10.Aunspach gave Vlaming two documents prepared by the National Center for Transgender Equality.Seeid. at 46-49.One of these documents asserted that transgender students have the legal "right to be addressed by the names and pronouns that they use" and the legal "right to use the restrooms and locker rooms that match their gender identity."Id. at 46.With respect to students "whose genders aren’t entirely male or female, sometimes called non-binary or genderqueer students," the document stated that "these student[s] should determine which locker rooms and restrooms,...