Meriwether v. Hartrop (compelled pronoun case)

                                                         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.