Ohio Professor Wins Major Free Speech Decision on Compelled Use of Pronouns in Classrooms

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.”

What is interesting is that after Doe complained, the Dean of Students and his department chair, Jennifer Pauley, came to Meriwether’s office and said that he had to use the chosen pronoun for the student. Meriwether explained that he had a religious objection but suggested a common resolution that he would use the last name of this particular student rather than use a pronoun. However, he would continue to use pronouns for other students. As I discussed in the column, many faculty members are now abandoning the use of pronouns to avoid such complaints.

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

 

142 thoughts on “Ohio Professor Wins Major Free Speech Decision on Compelled Use of Pronouns in Classrooms”

  1. “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.’”

    *********************************
    Well, the schools can’t continue to argue that they don’t know about the current state of the law when disciplining professors for violating their anti-American, Bolshevik speech codes. Let the civil lawsuits for intentional violation of First Amendment rights begin in the state schools. The privates can watch their faculties wither as fast their financial fortunes.* I love a good injunction and trial on damages.

    As for Judge Susan Dlott, I wonder what law school she attended? Oh I know, plus she’s a Clinton nominee, Big Firm Lawyer with an apparent and decided blind spot for academic freedom.

    *https://www.cnbc.com/2018/08/30/hbs-prof-says-half-of-us-colleges-will-be-bankrupt-in-10-to-15-years.html

  2. OT: based on prior threads

    Key Trump defense official refutes Blinken, says Trump left Afghan withdrawal plan for Biden

    The focus of the Trump administration’s plan was to “peacefully negotiate yourself out of Afghanistan with a conditions-based withdrawal,” Kash Patel said.

    Kash Patel, former chief of staff to Acting Secretary of Defense Christopher Miller, blasted Secretary of State Antony Blinken for claiming that the Trump administration did not leave President Biden a plan for the U.S. withdrawal from Afghanistan.

    On the John Solomon Reports podcast on Thursday, Patel was asked if Blinken accurately told Congress that Trump left Biden a deadline for leaving Afghanistan without a plan. “No, absolutely not,” Patel replied.

    Criticizing Blinken for playing “politics with the national security apparatus of the United States,” Patel, who worked on the transition coordination team, said that the Trump administration did not leave Biden a deadline.

    “We actually did not leave them a deadline,” he said. “It was a negotiation between the U.S. government, the Taliban, and the Afghans. And if that date was not to work for this incoming administration, they could have moved it.

    “But what they chose to do was break the entire agreement. And then they thought, since the adults were back in Washington, D.C., and Blinken and Biden were leading the charge, the world will just fall into place for them. And they blew it in Afghanistan. So I think their credibility’s shot when it comes to everything Afghanistan.”

    Trump’s overall plan was to “peacefully negotiate yourself out of Afghanistan with a conditions-based withdrawal,” he said. “[A]nd the world knew that was President Trump’s plan.” …

    Patel said that there were several components to Trump’s plan to leave Afghanistan, including dealing with U.S. military equipment, making peace deals, ensuring that terrorists were not being harbored, not allowing U.S. citizens to be killed, and figuring out what to do with all of them living in the country, as many were working with nongovernmental organizations.”

    Continued: https://justthenews.com/government/white-house/former-trump-official-refutes-blinkens-afghanistan-testimony-says-biden?utm_source=daily&utm_medium=email&utm_campaign=newsletter

    The Biden team completely failed in Afghanistan. One can only laugh at the Biden supporters that think Biden did a great job. Under Trump, all Americans would be out. All weapons would be out. There would be a negotiated ‘peace’ or we would have remained until there was.

  3. The way to stop recurring crises like this is for the responsible University administrators lose their jobs and answer to the professor for damages. In this case, Shawnee State University President Jeff Bauer and Provost Sunil Ahuja should be held personally accountable for the actions of the University that they led.

  4. Artists can be compelled to paint subjects they disagree with. Photographers can be forced to shoot events they don’t want to participate in. Bakers can be forced to bake custom confections denying biology and religion. Professors and other employees can be compelled to claim that the man standing before him can decide to become a woman, that the female gender has been reduced to a state of mind.

    This will never end. It’s already ballooning out of control. What will we be forced to say or do, next?

    This isn’t freedom. Your creativity and speech is becoming property of the State. Your labor and ideas are next.

    This encapsulates the fight over supremacy, individual rights or the government, the individual or Party, the individual or Illiberal Regressivism.

  5. It was Merriweather who was discriminated against.

    The world has gone crazy.

    Doe was biologically male. Appeared male. He apparently suffered gender dysphoria and angrily demanded that everyone must address him as female. Or. Else. He even circled Merriweather in a threatening manner, like one would expect from a threatening man.

    What if Doe believed that he was an alien, and demanded that everyone refer to him as an alien, and never, ever refer to him as a person or human being, or else he would get them fired?

    What if Doe believed he was a mermaid, and threatened to get someone fired if he did not agree?

    What if Doe believed he had lycanthropy, and threatened to get Merriweather fired if he did not agree?

    All of the above are examples of dysphoria. Of course people who suffer each of these would deserve sympathy and compassion, but to go further and demand that everyone agree with their delusions is abusive.

    It’s not only accept and treat with respect, it’s agree or you will be forced or fired. This is the fascism of the hard Left.

    We should never have allowed hard Leftist to have infested academia and the public education system. All those hours when our kids are at school or college, they are getting exposed to this propaganda, harassment, and brainwashing.

    Universities are not in the business of deciphering what gender anyone feels at any given hour. They are supposed to be institutions of higher learning, teaching science, math, literature, and other useful subjects. Or at least they were.

  6. There are now 75 different pronouns.

    It’s perfectly fine for people to project a masculine, feminine, or androgynous persona. They can dress how they want. Speak how they want. The problem is when they insist that everyone else agree with how they see themselves, and punish them if they do not. They take it to extreme measures, trying to get people fired or financially ruined.

    It always boils down to force for the hard Left. That’s where they always lose me.

    I refer to a drag queen/transgender as she, because they are basically putting forth a feminized character. But if you asked me what gender they are, I would answer male, because that’s the biological definition. That’s how I define the sexes.

    How can transgender want to be free to act how they want, yet demand the forced obedience of everyone else? That’s not just, nor is it tolerant.

    Gender dysphoria has been described as extremely difficult to bear. A constant chaffing or wrongness. They deserve the utmost sympathy. Sympathy does not extend to a fascist control over everyone’s opinions and speech.

    There are a great many dysphoria. There are people who believe they are really another species, race, or that they have the wrong number of limbs. It is illogical to select one of the dysphoria, proclaim theirs to be reality to be enforced upon pain of firing and blacklisting, while the others are considered mental illnesses that do not reflect reality.

    There are white people who are adamant that they are really black, born in the wrong race. This is typically met by angry condemnations of cultural appropriation and fraud. However, if a biological man should be allowed to compete in women’s sports, then a white person claiming to be black should be allowed to receive benefits expressly tailored for black people, such as preferential hiring practices for particular jobs (such as the NAACP), affirmative action, scholarships, etc.

    If this seems unfair, then welcome to how girls feel when biological boys wipe them out in their own sports divisions.

    Tolerance means that you will encounter people who have a different opinion than you would like. That’s America, and it’s OK.

    1. “Sympathy” stops when the ill person fails or refuses to seek and undergo medical help to deal with one’s mental illness. “Sympathy” stops when others who have their reasons, deemed good or bad, are required to address or describe mentally ill people with nouns or pronouns or adjectives that are inconsistent with the sex with which the ill people are born – simply to humor them.

  7. “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.”

    The Sixth Circuit panel ruled in March (as is noted in the header of the ruling JT linked to).

    The ruling reversed the trial court’s dismissal of Meriwether’s suit, saying that the suit should proceed to trial.

    Shawnee State University has already asked the 6th Circuit to rehear the case en banc, and a number of organizations have submitted amicus briefs. AFAIK, the 6th Circuit hasn’t yet decided whether to grant the request.

    What prompts today’s column from JT, months after the 6th Circuit’s panel ruling and without mention of the request for an en banc rehearing?

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