‘A Hotly Contested Issue’

In a case with far-reaching implications for both students and faculty members, a federal appeals court sides with a professor who refused to refer to transgender student by her preferred pronoun.

March 29, 2021
 
Alliance Defending Freedom
Nicholas Meriwether

A Christian professor of philosophy who was reprimanded for refusing to refer to a trans student as a woman can pursue his lawsuit against Shawnee State University in Ohio, a federal appeals court said Friday.

Shawnee State “punished a professor for his speech on a hotly contested issue,” the appeals court said. “And it did so despite the constitutional protections afforded by the First Amendment.”

The case stemmed from a 2018 political philosophy class in which the professor, Nicholas Meriwether, called a trans woman “sir.” Meriwether said it happened accidentally, as no one informed him of the student’s preferred pronoun. After class, the student “demanded” to be called “Ms.,” like other female students, and threatened to have him fired if he didn’t, according to Meriwether’s lawsuit.

Fight Over Pronouns

The university initially asked to Meriwether to stop using masculine and feminine titles and gendered pronouns, but he argued this was next to impossible. Instead, he said he would refer to the student in question by her last name only. The student was dissatisfied with this approach, as Meriwether continued to address other students as “Ms.” and “Mr.” Meriwether also called the student “Mr.” again in front of the class by accident, he says.

The student allegedly threatened to sue Shawnee State, which in turn pressured Meriwether further to address the student in her preferred manner. Meriwether agreed -- on the condition that he could put a disclaimer in his syllabus about how he was following the university’s pronoun policy under compulsion, and stating his views about biological sex and gender being one and the same and immutable.

Meriwether’s dean rejected this as incompatible with the university’s gender identity policy. The case was referred to the university’s office for compliance with Title IX of the Education Amendments of 1972, which prohibits gender-based discrimination. Meriwether, who continued to refer to the student by her last name only, was found to have created a “hostile environment” for her via disparate treatment. (Again, he continued to call other students "Mr." and "Ms.")

Meriwether argued against this finding, saying that the student received high marks in the course, and that he didn’t treat her substantially differently from any other student. “Reasonable minds” could differ about this “newly emerging cultural issue,” he said in a letter to his provost.

Unswayed, the provost put a warning letter in Meriwether’s personnel file, telling him to follow the pronoun policy to “avoid further corrective actions.”

Meriwether’s faculty union unsuccessfully appealed the disciplinary action on his behalf before he sued the university.

A district court previously dismissed the professor’s First Amendment case against Shawnee State, saying that the university didn’t violate his rights. Getting students’ pronouns and titles right is a narrow issue that is part of a professor’s job description, not a matter of free speech, that court found.

The U.S. Court of Appeals for the Sixth Circuit reversed the decision, explaining in its opinion that while the lower court “held that a professor’s speech in the classroom is never protected by the First Amendment … we disagree.”

Weighing in on the campus speech debate, the appeals court said that American universities traditionally have been “beacons of intellectual diversity and academic freedom” and “forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides.”

‘A Pall of Orthodoxy Over the Classroom’

Under U.S. Supreme Court and Sixth Circuit precedent, the appeals court said, “the First Amendment protects the academic speech of university professors.” Since Meriwether “has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed.”

Trump appointee Amul Thapar penned the unanimous, three-judge appeals court opinion, writing that if professors “lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity.” A university president could “require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as ‘comrades,’ ” he wrote. “That cannot be.”

The appeals court’s analysis relied heavily on the 2006 U.S. Supreme Court decision in Garcetti v. Caballos -- which found that public employees’ speech pursuant to their official duties is not protected -- and subsequent legal decisions establishing exceptions for academics.

Shawnee State argued, in part, that even if there's an academic freedom exception to Garcetti, it doesn’t apply to titles and pronouns in the classroom.

Thapar said that’s not true, as “Any teacher will tell you that choices about how to lead classroom discussion shape the content of the instruction enormously. That is especially so here because Meriwether’s choices touch on gender identity -- a hotly contested matter of public concern that ‘often’ comes up during class discussion in Meriwether’s political philosophy courses.”

By forbidding Meriwether from describing his views on gender identity even in his syllabus, Thapar wrote, “Shawnee State silenced a viewpoint that could have catalyzed a robust and insightful in-class discussion.” Referring to another Supreme Court case, 1968’s Pickering v. Board of Education, among other cases, Thapar said the state may limit speech “only when its interest in restricting a professor’s in-class speech outweighs his interest in speaking.”

Thapar also wrote that the university’s position on titles and pronouns “goes both ways.” A university “could likewise prohibit professors from addressing university students by their preferred gender pronouns -- no matter the professors’ own views.”

Meriwether says that a colleague mocked his views on gender identity in 2016, when he first objected to a new policy requiring that employees refer to members of the campus by their preferred pronouns. His disciplinary record remained “spotless” until 2018, however.

Shawnee State, where Meriwether remains on the faculty, declined comment on the decision. It has previously said that it attempted to respect both parties’ rights before things escalated into a lawsuit.

Meriwether’s lawyer John Bursch, of the Alliance Defending Freedom, said in a statement that the case “forced us to defend what used to be a common belief -- that nobody should be forced to contradict their core beliefs just to keep their job.”

Echoing the appeals’ court’s references to transgender identity as “a hotly contested issue,” Bursch continued, “We are very pleased that the Sixth Circuit affirmed the constitutional right of public university professors to speak and lead discussions, even on hotly contested issues. The freedoms of speech and religion must be vigorously protected if universities are to remain places where ideas can be debated and learning can take place.”

'Free Speech Gone Wild'

The Transgender Legal Defense Fund declined immediate comment on the case, citing a heavy case load. Transgender rights are being both promoted and challenged on a number of legal fronts right now, at both the state and federal level. The federal Equality Act would establish new civil rights for LGBTQ people, while legislation in Alabama would end gender-affirming surgery for young people and limit their participation in sports.

The student in the Meriwether case is referred to in court documents as Jane Doe. She and the Sexuality and Gender Acceptance group were legally represented in part by the National Center for Lesbian Rights. Asaf Orr, senior staff attorney and Transgender Youth Project director at the center, said his clients are “disappointed” by the decision and its implications for how transgender and other marginalized students are treated on campus. 

“The decision opens the door to discrimination generally,” Orr said. “Nothing in the opinion’s reasoning is limited to discrimination against transgender students.” Orr’s clients are discussing possible next steps as they continue to review the decision.

Andrew M. Koppelman, John Paul Stevens Professor of Law at Northwestern University, has written about the case as one of “free speech gone wild.” The Sixth Circuit “is being invited to invalidate the entire field of hostile environment harassment law,” he wrote last year in The Hill. If Meriwether prevails, “teachers at public colleges will have a constitutional right to subject their students to bigoted slurs. Much of anti-discrimination law would be deemed unconstitutional.”

Like Orr, Koppelman said over the weekend that the court’s ultimate decision opens the door to more discrimination in the classroom, and not just against transgender students.

“Suppose a professor held a religious belief that African Americans are beings of an inferior order, who don’t deserve the honorific of ‘Mr.’ or ‘Ms.,’” he said. “Under the court’s reasoning, would that teacher have the right to address only the Black students by first or last name? If not, would the professor have the right to put a disclaimer on the syllabus explaining their beliefs?”

That’s not necessarily outlandish, in Koppelman’s assessment, as “race and sex are treated equivalently in federal antidiscrimination law.”

John K. Wilson, contributing editor of the American Association of University Professors’ Academe blog, said that while this a "good ruling for protecting faculty rights, I don’t necessarily agree with all of it.” 

Shawnee State was wrong to censor Meriwether’s syllabus, for instance, as what he wanted to say didn’t “inherently” amount to unequal treatment, Wilson said. But the appeals court is wrong to suggest that Shawnee State violated the Free Exercise Clause of the First Amendment regarding religious liberty.

“A professor’s religious beliefs should not give them special rights to mistreat students,” he said. “If a professor has a sincere religious belief that women should be silent in the presence of men," for example, "the professor can’t claim a religious exemption to nondiscrimination law.” 

As for the appeals court’s assertion that “titles and pronouns carry a message,” Wilson said that message “is primarily just symbolic respect.” While professors may determine whether they’ll use gendered pronouns or not in their classroom for everyone, “they don’t necessarily have full latitude to decide willy-nilly which students will get respectful pronouns and which will not.”

In general, though, Wilson said, “the best approach when a professor doesn’t show adequate respect for students is the path of criticism and persuasion," not formal discipline.

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