Judge Amul Thapar
Professor at state university was disciplined because he refused to
use a student's "preferred pronouns." The Sixth Circuit wrote a powerful opinion protecting academic free speech. Here is the court's description of the facts:
At the start of the school year, Shawnee State emailed the faculty informing them that they had to refer to students by their “preferred pronoun[s].” Meriwether asked university officials for more details about the new pronoun policy, and the officials confirmed that professors would be disciplined if they “refused to use a pronoun that reflects a student’s self-asserted gender identity.” What if a professor had moral or religious objections? That didn’t matter: The policy applied “regardless of the professor’s convictions or views on the subject.”
Here are a
few great excerpts from the decision:
1. "THAPAR, Circuit Judge. Traditionally,
American universities have been beacons of intellectual diversity and
academic freedom. They have prided themselves on being forums where
controversial ideas are discussed and debated. And they have tried not
to stifle debate by picking sides. But Shawnee State chose a different
route: It punished a professor for his speech on a hotly contested
issue. And it did so despite the constitutional protections afforded by
the First Amendment. The district court dismissed the professor’s
free-speech and free-exercise claims. We see things differently and
reverse."
2. "“Universities have historically been fierce
guardians of intellectual debate and free speech.” Speech First, Inc.
v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019). But here, Meriwether
alleges that Shawnee State’s application of its gender-identity policy
violated the Free Speech Clause of the First Amendment. The district
court rejected this argument and held that a professor’s speech in the
classroom is never protected by the First Amendment. We disagree:
Under controlling Supreme Court and Sixth Circuit precedent, 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."
3.
"A decade later, in a case involving a similar New York law banning
“subversive” activities, the Supreme Court affirmed that the
Constitution protects “academic freedom, which is of transcendent value
to all of us and not merely to the teachers concerned.” Keyishian v.
Bd. of Regents, 385 U.S. 589, 603 (1967). It characterized academic
freedom as “a special concern of the First Amendment” and said that the
First Amendment “does not tolerate laws that cast a pall of orthodoxy
over the classroom.” Id. After all, the classroom is “peculiarly the
‘marketplace of ideas.’” Id. And when the state stifles a professor’s
viewpoint on a matter of public import, much more than the professor’s
rights are at stake. Our nation’s future “depends upon leaders
trained through wide exposure to [the] robust exchange of ideas”—not
through the “authoritative” compulsion of orthodox speech. Id.
(citation omitted); accord Sweezy, 354 U.S. at 249–50 (plurality
opinion) (“To impose any strait jacket upon the intellectual leaders in
our colleges and universities would imperil the future of our
Nation.”)."
4. " One final point worth considering: 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.” That
cannot be. “If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe”
such orthodoxy. Barnette, 319 U.S. at 642."
5. "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."
6. "Purportedly
neutral non-discrimination policies cannot be used to transform
institutions of higher learning into “enclaves of totalitarianism.”
Tinker, 393 U.S. at 511."
Here is a link to the 6th Circuit's opinion. And here is a link to a short article analyzing the opinion.
I have not assigned this opinion, but I
encourage you to read it at some point during your journey through the
halls of academia. There has never been a time in my 42 years of
teaching when this opinion was more important and more necessary for the
preservation of the university as a free and open marketplace of
ideas.
In a recent case decided before the Virginia Supreme Court, a public high school teacher. who was fired because he refused to use a student's preferred pronouns (but instead used the student's preferred first name), won under the free exercise clause of the Virginia Constitution and under the Virginia Religious Freedom Restoration Act. See Vlaming v. West Point School Board. On remand, the case was settled when the school board agreed to pay $575,000 to Vlaming.