My column yesterday discussed the increasing trend to treat the failure to use a person’s preferred pronouns (called “misgendering”) a type of hate speech or discriminatory conduct. A new case highlights the free speech problems associated with the trend. In Meriwether v. Hartop, the United States Court of Appeals for the Sixth Circuit handed down a major ruling in favor of Shawnee State University Professor Nicholas Meriwether, who was disciplined for refusing to use a student’s designated pronoun choices.
At the beginning of the school year, Shawnee State emailed all faculty members to order them to refer to students by their “preferred pronoun[s].” Meriwether teaches religion and philosophy and refers to all his students using “sir,” “ma’am,” “mister” or “miss.” When Meriwether asked university officials for more details, the school confirmed that professors would be disciplined if they “refused to use a pronoun that reflects a student’s self-asserted gender identity” and the school would not recognize any ideological or religious exception.
The policy was stated as mandatory “regardless of the professor’s convictions or views on the subject.” He was further informed that such punishment would be meted out under the school’s anti-discrimination rules “because of . . . gender identity.”
The issue came to a head with an encounter described by the Court:
“In that first class, one of the students Meriwether called on was Doe. According to Meriwether, “no one . . . would have assumed that [Doe] was female” based on Doe’s outward appearances. Id. at 1474. Thus, Meriwether responded to a question from Doe by saying, “Yes, sir.” Id. This was Meriwether’s first time meeting Doe, and the university had not provided Meriwether with any information about Doe’s sex or gender identity. After class, Doe approached Meriwether and “demanded” that Meriwether “refer to [Doe] as a woman” and use “feminine titles and pronouns.” Id. at1475. This was the first time that Meriwether learned that Doe identified as a woman. So Meriwether paused before responding because his sincerely held religious beliefs prevented him from communicating messages about gender identity that he believes are false. He explained that he wasn’t sure if he could comply with Doe’s demands. Doe became hostile—circling around Meriwether at first, and then approaching him in a threatening manner: ‘I guess this means I can call you a cu–.’ Id. Doe promised that Meriwether would be fired if he did not give in to Doe’s demands.”
Pauley reportedly agreed to the compromise but the student later said that it was unacceptable and Pauley returned to tell Meriwether that he was in violation of the school anti-discrimination rules.
“Trying to find common ground, Meriwether asked whether the university’s policy would allow him to use students’ preferred pronouns but place a disclaimer in his syllabus “noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity.” R. 34, Pg. ID 1478. Dean Milliken rejected this option out of hand. She insisted that putting a disclaimer in the syllabus would itself violate the university’s gender identity policy.”
Meriwether was then investigated and found guilty of discrimination based on gender identity, defined as a “person’s innermost concept of self as male or female or both or neither.” A warning letter was placed in his file and he sued out of fear that he would be fired given his continued objections to the policy.
He lost before the lower court. District Court Judge Susan Dlott issued a chilling decision that entirely dismissed free speech rights for faculty members in such classroom exchanges. She wrote in her opinion:
“The speech here occurred in the context of plaintiff’s employment; it was limited to titles and pronouns used to address one student in plaintiff’s class: the speech was directed to plaintiff and heard only by her and her fellow students; and absent any further explanation or elaboration, the speech cannot reasonably be construed as having conveyed any beliefs or stated any facts about gender identity.”
Many disagree that this is protected speech, but I cannot understand how Judge Dlott could say that such compelled use of pronouns “cannot reasonably be construed as having conveyed any beliefs or stated any facts about gender identity.”
The Sixth Circuit noted that, as stated in Speech First, Inc. v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019), “Universities have historically been fierce guardians of intellectual debate and free speech.” It reversed a district court’s ruling by Judge Dlott that a professor’s speech in the classroom is not protected by the First Amendment. Accordingly, it held that “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.”
Adopting a position similar to the Fourth, Fifth, and Ninth Circuits, the appellate panel ruled:
“[O]ur court has rejected as “totally unpersuasive” “the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.” Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 680 (6th Cir. 2001). And we have recognized that “a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting.” Bonnell v. Lorenzo, 241 F.3d 800, 823 (6th Cir. 2001); see Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1188–89 (6th Cir. 1995).1 Simply put, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship. See Hardy, 260 F.3d at 680.”
The ruling is a major recognition and defense of free speech rights for faculty in classrooms. It is not clear if the school will now appeal but I expect that there are at least four justices who would be particularly interested in granting certiorari to amplify rather than reverse the reasoning of the Sixth Circuit.
Here is the decision: Shawnee State Gender Pronoun Lawsuit