Nicholas Meriwether
The Sixth Circuit Court of Appeals on Friday ruled in favor of a “devout Christian” professor who was disciplined because he “refused to refer to students by their ‘preferred pronouns'” after a 2016 directive at a small state university in Ohio ordered him to do so. The court held that university officials and a lower federal district court failed to recognize the professor’s 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 “wield alarming power to compel ideological conformity.”
The professor, Nicholas Meriwether, “strives to live out his faith each day,” the Sixth Circuit’s opinion reads. As such, “his religious convictions influence how he thinks about human nature, marriage, gender, sexuality, morality, politics, and social issues.” Meriwether believes that “God 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’s feelings or desires,” the opinion adds.
The college, Shawnee State University, employed Meriwether for 25 years. He taught courses in philosophy, religion, ethics, and the “History of Christian Thought.”
According to the Sixth Circuit, a university directive said that any professor who “refused to use a pronoun that reflects a student’s self-asserted gender identity” 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 “regardless of” his own “convictions or views on the subject.”
“By 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,” the court noted.
The court described Meriwether’s superior, Jennifer Pauley, as “derisive and scornful.” According to the court record, Paule told Meriwether that “Christians are ‘primarily motivated out of fear’ and should be ‘banned from teaching courses regarding that religion.'”
Though the university’s policy was announced in 2016, Meriwether’s troubles started later. In Jan. 2018, he referred to a student known in the opinion only as “Jane Doe” as “sir.”
“[N]o one . . . would have assumed that [Doe] was female based on Doe’s outward appearances,” Meriwether said.
From the court’s opinion:
After class, Doe approached Meriwether and “demanded” that Meriwether “refer to [Doe] as a woman” and use “feminine titles and pronouns.” 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–.” Doe promised that Meriwether would be fired if he did not give in to Doe’s demands.
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’s complaint to Roberta Milliken, the Acting Dean of the College of Arts and Sciences.
Dean Milliken went to Meriwether’s office the next day. She “advised” that he “eliminate all sex-based references from his expression”—no using “he” or “she,” “him” or “her,” “Mr.” or “Ms.,” 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’s last name. Dean Milliken accepted this compromise, apparently believing it followed the university’s gender-identity policy.
That didn’t 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.
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 “under compulsion” — and with a disclaimer “setting forth his personal and religious beliefs about gender identity.” The college rubbished that suggestion as a violation of its “gender-identity policy.”
Meriwether continued calling the student by her last name. He slipped up once but corrected himself. The student remained in class and received a “high grade” for “very good work” and “frequent participation in class discussions.”
The same student complained again; the college initiated what the Sixth Circuit referred to as “a less-than-thorough investigation”: “aside from Doe and Meriwether themselves, none of the witnesses testified about a single interaction between the two.”
The investigation concluded that Meriwether “created a hostile environment” and had violated “nondiscrimination policies” involving “gender identity.”
Formal disciplinary proceedings followed; the university ignored Meriwether’s “request for a religious accommodation.” Administrators also refused to “grapple with Meriwether’s request for a religious accommodation,” the opinion reads.
In subsequent meetings, then-Provost Jeffrey Bauer “exhibited deep hostility” to both Meriwether and a union representative who intervened on the professor’s behalf. Before denying the professor’s grievance, Bauer “repeatedly interrupted the [union] representative and made clear that he would not discuss the academic freedom and religious discrimination aspects of the case.”
The union representative tried to explain the teachings of Meriwether’s 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 “openly laughed.” Indeed, Bauer was so hostile that the union representative “was not able to present the grievance.” Bauer denied the grievance.
An additional investigation determined that Meriwether had not “created a hostile educational environment” but rather had caused “differential treatment” — a change in theory which the Sixth Circuit later bashed profusely.
“The officials justified the university’s refusal to accommodate Meriwether’s religious beliefs by equating his views to those of a hypothetical racist or sexist,” the court’s opinion says.
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.
The resulting appeals court opinion, Meriwether v. Hartop, was written by Judge Amul Thapar, a Donald Trump appointee and Federalist Society contributor. Senior Judge David McKeague, a George W. Bush appointee, and Judge Joan Larsen, another Trump appointee, were the other two judges on the three-judge panel.
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.
“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,” the appeals court panel unanimously held.
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 Tinker v. Des Moines (1969) and others, which held that free speech protections applied to schools and universities. The other is a line of cases which differentiate between personal speech uttered by state actors and government speech uttered by state actors.
As to the latter, “when 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,” the Sixth Circuit noted (quoting Garcetti v. Ceballos (2006)).
Garcetti “expressly declined to address whether” its own rule of law applied to schools and universities, the Sixth Circuit noted. But other cases, such as Grutter v. Bollinger (2003), indicated that “the expansive freedoms of speech and thought” required more rigorous First Amendment protections. Additional cases, such as Sweezy v. New Hampshire (1957) and Keyishian v. Bd. of Regents (1967), further solidified “that the First Amendment protects the free-speech rights of professors when they are teaching,” the Sixth Circuit reasoned.
As a result, our 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.” And we have recognized that “a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting.” Simply put, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship.
The Sixth Circuit noted that the Fourth, Fifth, and Ninth Circuits have already held that professors retain First Amendment rights while teaching — thus further trashing the lower district court’s belief to the contrary. The Sixth Circuit also distinguished one of its own prior cases, Evans-Marshall v. Board of Education of Tipp City (2010), which held that “the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools.” The judges decided that Evans-Marshall applied to “schoolteachers” but not to “college and university professors.”
The appeals court’s First Amendment analysis ended this way:
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.
The court then called out the university’s policy as deeply hypocritical:
Remember, too, that the university’s position on titles and pronouns goes both ways. By defendants’ logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronouns—no matter the professors’ own views. And it could even impose such a restriction while denying professors the ability to explain to students why they were doing so.
The court went on to hold that Meriwether’s use of specific gender pronouns “involved a matter of public concern” and that the professor’s free speech rights outweighed the college’s interest in “promoting the efficiency of the public services.”
Next, the court held that the university violated Meriwether’s rights under the Free Exercise Clause. The Constitution requires that the government commit “itself to religious tolerance,” the court said, quoting Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018). Here, the court zeroed in on department chair Jennifer Pauley’s statements that “Christian doctrines . . . should not be taught” as especially cruel given that “Meriwether had done so for decades.”
“Neutral and non-hostile? As alleged, no,” the Sixth Circuit said in a proverbial retort to remind Pauley of her legal duties. “In fact, it has the makings of the very religious intolerances that gave concern to those who drafted the Free Exercise Clause.”
The court also lambasted Provost Bauer.
“Bauer did not seem so neutral,” the Sixth Circuit noted. “Bauer’s alleged actions and words demonstrated anything but the ‘neutral and respectful consideration’ that the Constitution demands.”
“An inference of religious hostility is plausible in these circumstances,” the court concluded, again citing Masterpiece Cakeshop.
The opinion continued by lambasting the overall process the university used to investigate the longtime professor.
“[T]itles and pronouns carry a message,” the Sixth Circuit noted while speaking to the broader social issue of preferred gender pronouns. “The 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’s not a matter of classroom management; that’s a matter of academic speech.”
“Traditionally, American universities have been beacons of intellectual diversity and academic freedom,” the court also said. “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.”
Read the full opinion below:
Meriwether v Hartop (6th Cir 2021) (Preferred Gender Pronouns Case) by Law&Crime on Scribd
[Editor’s note: some internal punctuation and some citations have been omitted from quotes to make this piece easier to read.]
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