The United States Court of Appeals for the Sixth Circuit has reversed an earlier dismissal of a philosophy professor’s lawsuit against his employer, Shawnee State University, for violating his First and Fourteenth Amendment rights.
The philosophy professor, Nicholas Meriwether, had sued the school, claiming that it had violated his freedom of speech, freedom of religion, and rights to due process when it disciplined him for alleged mistreatment of a transgender student in one of his courses. The student, a trans woman, had asked Dr. Meriwether to refer to her using feminine pronouns and titles. Dr. Meriwether, an Evangelical Christian, refused, claiming that doing so was forbidden by his religion. Dr. Meriwether also refused the compromise suggestion made to him by his dean that he stop using titles and pronouns to address his students.
The lower court dismissed the case. Now, the Federal Court of Appeals has reversed the dismissal, allowing the case to proceed.
The lower court had said that “Universities may sanction professors whose pedagogical attitudes and teaching methods do not conform to institutional standards” and that “although public universities may not force professors to endorse or eschew specific viewpoints, the First Amendment does not bar a public university from requiring that its faculty treat each other and their students with civility.” In contrast, the Federal Court rejected the idea that speech involved in addressing students by gender was merely a formal administrative matter, claiming instead that such speech—and its regulation by the university—advances substantive viewpoints on a topic of public concern. The court writes:
The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings. And a professor’s in-class speech to his students is anything but speech by an ordinary government employee. Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection): (1) the students’ interest in receiving informed opinion, (2) the professor’s right to disseminate his own opinion, and (3) the public’s interest in exposing our future leaders to different viewpoints. See Lane v. Franks, 573 U.S. 228, 236 (2014); Sweezy, 354 U.S. at 250 (plurality opinion). Because the First Amendment “must always be applied ‘in light of the special characteristics of the . . . environment’ in the particular case,” Healy, 408 U.S. at 180 (alteration in original) (quoting Tinker, 393 U.S. at 506), public universities do not have a license to act as classroom thought police. They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy. Otherwise, our public universities could transform the next generation of leaders into “closed-circuit recipients of only that which the State chooses to communicate.” Tinker, 393 U.S. at 511. Thus, “what constitutes a matter of public concern and what raises academic freedom concerns is of essentially the same character.” Dambrot, 55 F.3d at 1188.
Of course, some classroom speech falls outside the exception: A university might, for example, require teachers to call roll at the start of class, and that type of non-ideological ministerial task would not be protected by the First Amendment. Shawnee State says that the rule at issue is similarly ministerial. But as we discuss below, titles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students. That’s not a matter of classroom management; that’s a matter of academic speech.
In an article about the case at The Washington Post, Andrew Koppelman, a professor of law (with appointments in political science and philosophy) at Northwestern University, is quoted as saying about the court’s reasoning:
As a hypothetical, let’s suppose that a professor thinks that the honorific ‘Mr.’ is okay, but not for African Americans because it gives African Americans a respect he doesn’t believe they deserve. I think a court would say that that alone would create a hostile environment. I don’t understand why applying the wrong honorific only to transgender students doesn’t create a hostile environment also.
You can read the entire text of the court’s decision here.[UPDATE: A small correction has been made to this post in light of the helpful comment, below, from Louis F. Cooper.]
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