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Nicholas Meriwether<\/p><\/div><\/p>\n
AARON KELLER
\nLaw & Crime<\/p>\n
The Sixth Circuit Court of Appeals on Friday ruled in favor of a \u201cdevout Christian\u201d professor who was disciplined because he \u201crefused to refer to students by their \u2018preferred pronouns’\u201d after a 2016 directive at a small state university in Ohio ordered him to do so. \u00a0The court held that university officials and a lower federal district court failed to recognize the professor\u2019s First Amendment rights to free speech and to the free exercise of his religion. By so holding, the court decried the notion that a university might \u201cwield alarming power to compel ideological conformity.\u201d<\/p>\n
The professor,\u00a0Nicholas Meriwether<\/strong>, \u201cstrives to live out his faith each day,\u201d the Sixth Circuit\u2019s opinion reads. As such, \u201chis religious convictions influence how he thinks about human nature, marriage, gender, sexuality, morality, politics, and social issues.\u201d \u00a0Meriwether believes that \u201cGod created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual\u2019s feelings or desires,\u201d the opinion adds.<\/p>\n The college, Shawnee State University, employed Meriwether for 25 years. He taught courses in philosophy, religion, ethics, and the \u201cHistory of Christian Thought.\u201d<\/p>\n According to the Sixth Circuit, a university directive said that any professor who \u201crefused to use a pronoun that reflects a student\u2019s self-asserted gender identity\u201d would face discipline. When Meriwether questioned officials about what role his own beliefs played in what he was allowed to say, he was told he must call students what they wished to be called \u201cregardless of\u201d his own \u201cconvictions or views on the subject.\u201d<\/p>\n \u201cBy forbidding Meriwether from describing his views on gender identity even in his syllabus, Shawnee State silenced a viewpoint that could have catalyzed a robust and insightful in-class discussion,\u201d the court noted.<\/p>\n The court described Meriwether\u2019s superior,\u00a0Jennifer Pauley<\/strong>, as \u201cderisive and scornful.\u201d According to the court record, Paule \u00a0told Meriwether that \u201cChristians are \u2018primarily motivated out of fear\u2019 and should be \u2018banned from teaching courses regarding that religion.’\u201d<\/p>\n Though the university\u2019s policy was announced in 2016, Meriwether\u2019s troubles started later. \u00a0In Jan. 2018, he referred to a student known in the opinion only as \u201cJane Doe\u201d as \u201csir.\u201d<\/p>\n \u201c[N]o one . . . would have assumed that [Doe] was female based on Doe\u2019s outward appearances,\u201d Meriwether said.<\/p>\n From the court\u2019s opinion:<\/p>\n After class, Doe approached Meriwether and \u201cdemanded\u201d that Meriwether \u201crefer to [Doe] as a woman\u201d and use \u201cfeminine titles and pronouns.\u201d 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\u2019t sure if he could comply with Doe\u2019s demands. Doe became hostile\u2014circling around Meriwether at first, and then approaching him in a threatening manner: \u201cI guess this means I can call you a cu\u2013.\u201d Doe promised that Meriwether would be fired if he did not give in to Doe\u2019s demands.<\/p>\n Meriwether reported the incident to senior university officials, including the Dean of Students and his department chair, Jennifer Pauley. University officials then informed their Title IX office of the incident. Officials from that office met with Doe and escalated Doe\u2019s complaint to Roberta Milliken, the Acting Dean of the College of Arts and Sciences.<\/p>\n Dean Milliken went to Meriwether\u2019s office the next day. She \u201cadvised\u201d that he \u201celiminate all sex-based references from his expression\u201d\u2014no using \u201che\u201d or \u201cshe,\u201d \u201chim\u201d or \u201cher,\u201d \u201cMr.\u201d or \u201cMs.,\u201d and so on. Meriwether pointed out that eliminating pronouns altogether was next to impossible, especially when teaching. So he proposed a compromise: He would keep using pronouns to address most students in class but would refer to Doe using only Doe\u2019s last name. Dean Milliken accepted this compromise, apparently believing it followed the university\u2019s gender-identity policy.<\/p><\/blockquote>\n That didn\u2019t last long. The student, who continued to attend class, complained again; the university told Meriwether he would be forced to call the student a female, the opinion states.<\/p>\n The university refused to allow Meriwether to place a disclaimer in his syllabus which stated that he would only refer to students by their preferred pronouns \u201cunder compulsion\u201d \u2014 and with a disclaimer \u201csetting forth his personal and religious beliefs about gender identity.\u201d The college rubbished that suggestion as a violation of its \u201cgender-identity policy.\u201d<\/p>\n Meriwether continued calling the student by her last name. He slipped up once but corrected himself. The student remained in class and received a \u201chigh grade\u201d for \u201cvery good work\u201d and \u201cfrequent participation in class discussions.\u201d<\/p>\n The same student complained again; the college initiated what the Sixth Circuit referred to as \u201ca less-than-thorough investigation\u201d: \u00a0\u201caside from Doe and Meriwether themselves, none of the witnesses testified about a single interaction between the two.\u201d<\/p>\n The investigation concluded that Meriwether \u201ccreated a hostile environment\u201d and had violated \u201cnondiscrimination policies\u201d involving \u201cgender identity.\u201d<\/p>\n Formal disciplinary proceedings followed; the university ignored Meriwether\u2019s \u201crequest for a religious accommodation.\u201d \u00a0Administrators also refused to \u201cgrapple with Meriwether\u2019s request for a religious accommodation,\u201d the opinion reads.<\/p>\n In subsequent meetings, then-Provost\u00a0Jeffrey Bauer<\/strong>\u00a0\u201cexhibited deep hostility\u201d to both Meriwether and a union representative who intervened on the professor\u2019s behalf. Before denying the professor\u2019s grievance, Bauer \u201crepeatedly interrupted the [union] representative and made clear that he would not discuss the academic freedom and religious discrimination aspects of the case.\u201d<\/p>\n The union representative tried to explain the teachings of Meriwether\u2019s church and why Meriwether felt he was being compelled to affirm a position at odds with his faith. At one point during the hearing, Provost Bauer \u201copenly laughed.\u201d Indeed, Bauer was so hostile that the union representative \u201cwas not able to present the grievance.\u201d Bauer denied the grievance.<\/p><\/blockquote>\n An additional investigation determined that Meriwether had not \u201ccreated a hostile educational environment\u201d but rather had caused \u201cdifferential treatment\u201d \u2014 a change in theory which the Sixth Circuit later bashed profusely.<\/p>\n \u201cThe officials justified the university\u2019s refusal to accommodate Meriwether\u2019s religious beliefs by equating his views to those of a hypothetical racist or sexist,\u201d the court\u2019s opinion says.<\/p>\n Meriwether was never discharged; nor was his pay cut. He sued because he feared those actions were imminent. A reprimand letter in his file would also make it difficult for him to obtain employment elsewhere, he said. His case alleged violations of the Free Speech and Free Exercise Clauses of the First Amendment; the Due Process and Equal Protection Clauses of the Fourteenth Amendment; the Ohio Constitution; and his contract with the university. The student known as Jane Doe and an organization known as Sexuality and Gender Acceptance intervened. A federal magistrate recommended tossing the case; a federal district court agreed. The Sixth Circuit flipped the matter and sent it back to district court.<\/p>\n The resulting appeals court opinion,\u00a0Meriwether v. Hartop<\/em>, was written by Judge\u00a0Amul Thapar<\/strong>, a\u00a0Donald Trump<\/strong>\u00a0appointee and\u00a0Federalist Society contributor<\/a>. \u00a0Senior Judge\u00a0David McKeague<\/strong>, a\u00a0George W. Bush<\/strong>\u00a0appointee, and Judge\u00a0Joan Larsen<\/strong>, another Trump appointee, were the other two judges on the three-judge panel.<\/p>\n The appellate judges held that the district court botched the law when it decided that Meriwether was not protected by the First Amendment while teaching in the classroom.<\/p>\n \u201cSince 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,\u201d the appeals court panel unanimously held.<\/p>\n The appeals noted that several chains of legal reasoning supported its opinion. One was a line of U.S. Supreme Court and Sixth Circuit cases, such as\u00a0Tinker v. Des Moines<\/em>\u00a0(1969) and others, which held that free speech protections applied to schools and universities. The other is a line of cases which differentiate between\u00a0personal<\/em>\u00a0speech uttered by state actors and\u00a0government<\/em>\u00a0speech uttered by state actors.<\/p>\n As to the latter, \u201cwhen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,\u201d the Sixth Circuit noted (quoting\u00a0Garcetti v. Ceballos<\/em>\u00a0(2006)).<\/p>\n Garcetti<\/em>\u00a0\u201cexpressly declined to address whether\u201d its own rule of law applied to schools and universities, the Sixth Circuit noted. But other cases, such as\u00a0Grutter v. Bollinger<\/em>\u00a0(2003), indicated that \u201cthe expansive freedoms of speech and thought\u201d required more rigorous First Amendment protections. Additional cases, such as\u00a0Sweezy v. New Hampshire<\/em>\u00a0(1957) and\u00a0Keyishian v. Bd. of Regents<\/em>\u00a0(1967), further solidified \u201cthat the First Amendment protects the free-speech rights of professors when they are teaching,\u201d the Sixth Circuit reasoned.<\/p>\n As a result, our court has rejected as \u201ctotally unpersuasive\u201d \u201cthe argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.\u201d And we have recognized that \u201ca professor\u2019s rights to academic freedom and freedom of expression are paramount in the academic setting.\u201d Simply put, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship.<\/p><\/blockquote>\n The Sixth Circuit noted that the Fourth, Fifth, and Ninth Circuits have already held that professors retain First Amendment rights while teaching \u2014 thus further trashing the lower district court\u2019s belief to the contrary. The Sixth Circuit also distinguished one of its own prior cases,\u00a0Evans-Marshall v. Board of Education of Tipp City<\/em>\u00a0(2010), which held that \u201cthe First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools.\u201d The judges decided that\u00a0Evans-Marshall<\/em>\u00a0applied to \u201cschoolteachers\u201d but not to \u201ccollege and university professors.\u201d<\/p>\n The appeals court\u2019s First Amendment analysis ended this way:<\/p>\n 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 \u00e9migr\u00e9 to address his students as \u201ccomrades.\u201d That cannot be. \u201cIf there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe\u201d such orthodoxy.<\/p><\/blockquote>\n The court then called out the university\u2019s policy as deeply hypocritical:<\/p>\n Remember, too, that the university\u2019s position on titles and pronouns goes both ways. By defendants\u2019 logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronouns\u2014no matter the professors\u2019 own views. And it could even impose such a restriction while denying professors the ability to explain to students why they were doing so.<\/p><\/blockquote>\n The court went on to hold that Meriwether\u2019s use of specific gender pronouns \u201cinvolved a matter of public concern\u201d and that the professor\u2019s free speech rights outweighed the college\u2019s interest in \u201cpromoting the efficiency of the public services.\u201d<\/p>\n Next, the court held that the university violated Meriwether\u2019s rights under the Free Exercise Clause. The Constitution requires that the government commit \u201citself to religious tolerance,\u201d the court said, quoting\u00a0Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission<\/em>\u00a0(2018). \u00a0Here, the court zeroed in on department chair Jennifer Pauley\u2019s statements that \u201cChristian doctrines . . . should not be taught\u201d as especially cruel given that \u201cMeriwether had done so for decades.\u201d<\/p>\n \u201cNeutral and non-hostile? As alleged, no,\u201d the Sixth Circuit said in a proverbial retort to remind Pauley of her legal duties. \u201cIn fact, it has the makings of the very religious intolerances that gave concern to those who drafted the Free Exercise Clause.\u201d<\/p>\n The court also lambasted Provost Bauer.<\/p>\n \u201cBauer did not seem so neutral,\u201d the Sixth Circuit noted. \u201cBauer\u2019s alleged actions and words demonstrated anything but the \u2018neutral and respectful consideration\u2019 that the Constitution demands.\u201d<\/p>\n \u201cAn inference of religious hostility is plausible in these circumstances,\u201d the court concluded, again citing\u00a0Masterpiece Cakeshop<\/em>.<\/p>\n The opinion continued by lambasting the overall process the university used to investigate the longtime professor.<\/p>\n \u201c[T]itles and pronouns carry a message,\u201d the Sixth Circuit noted while speaking to the broader social issue of preferred gender pronouns. \u201cThe 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\u2019s not a matter of classroom management; that\u2019s a matter of academic speech.\u201d<\/p>\n \u201cTraditionally, American universities have been beacons of intellectual diversity and academic freedom,\u201d the court also said. \u201cThey 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\u2019s free-speech and free-exercise claims. We see things differently and reverse.\u201d<\/p>\n Read the full opinion below:<\/p>\n Meriwether v Hartop (6th Cir 2021) (Preferred Gender Pronouns Case)<\/a>\u00a0by\u00a0Law&Crime<\/a>\u00a0on Scribd<\/p>\n