Teacher Fired Over Refusal to Use Proper Pronouns - Vlaming v. West Point School Board

Schools are always a battleground when it comes to constitutional rights. Often the focus is the rights of the students but in a recent case, Vlaming v. West Point School Board the rights of the teacher come into question. 

Peter Vlaming was a French teacher at West Point Public School in Virginia for nearly seven years. He was fired before the end of his contract, in December of 2018. His termination is the spark that ignited this case. One of Vlaming’s students, referred to as John Doe for sake of anonymity, is a transgender boy who, in the fall of 2018, asked to be referred to with male pronouns. On account of his religious beliefs regarding gender, Vlaming refused, claiming that “he could not, in good conscience, use male pronouns to refer to a female student.” It is important to note that Vlaming regularly referred to the student by their chosen masculine name as to avoid using pronouns altogether

He did “at least once”, however, use she/her to refer to him when the student was not present. Vlaming was instructed by his superior to refer to the student with proper pronouns on several occasions but refused every time and was thus fired. After several legal battles, his case was dismissed by the lower courts but the AFD appealed their decision and on the 27th of February 2022, the Virginia Supreme Court agreed to hear Vlaming’s Case. 

The constitutional question here is whether or not a public school teacher has the right to exercise their religious values in the form of speech by not using a student's desired pronouns. 

This case becomes complicated when we consider Vlamings' efforts to avoid the use of pronouns. From my understanding he was not fired as a result of repeated offenses of using improper speech, though he did on at least one occasion, but for telling his superior that he was unwilling to comply with the school's policy. Employers are required to offer “reasonable accommodations” in regards to the rights of their employees, so long as they don't cause “undue hardship.” Vlaming was never told that he would be permitted to refer to the student using their chosen name, he was told that he MUST refer to them using he/him pronouns. While I do believe the school has the right to fire an employee for repeatedly using improper pronouns given that it causes “undue hardship” on the student, this is not what happened. Vlaming was fired for saying he would not refer to the student with he/him pronouns. He had to choose between his religious convictions and his job even though there was an alternative solution in which he respected the student's wishes by calling them by their chosen name without violating his beliefs. 

Additionally, while Vlaming did violate the School Boards Policy there are no constitutional protections for discriminatory speech and there is constitutional protection for the free exercise of religion. One might make the argument that Vlaming is a public school teacher and therefore cannot use religious speech as it may be an unconstitutional establishment. This argument will likely come up in the case to come but I don't believe it holds much water. Vlaming has never asked for an exception to the pronoun policy of the school board on account of his religious beliefs. He wants to refer to the student solely by their name. If he is successful in doing so there is no religious speech at all and therefore no establishment of religion. 

I believe that Vlaming has a strong chance of winning his upcoming case. The strongest argument the defense has to make is that he has referred to the student with she/her pronouns, though it hasn't been stated how many times. If he were to do so it could be argued that his speech violated an unconstitutional establishment and caused undue hardship on the student. The court does have a compelling interest in protecting the wishes of the student and therefore regulating Vlaming’s speech even with the lack of protection for transgender individuals. Despite this fact, Vlaming seems to have made a real effort to find a middle path and respect both his own convictions and the wishes of the student. I believe he was made to choose between his job and his religious ideals which is not something a public school board has the power to do without allowing for some reasonable accommodation which in this case seems very possible.