CINCINNATI (CN) — An Ohio philosophy professor punished for his refusal to call a transgender student by her preferred pronouns asked a Sixth Circuit panel Thursday to revive his First Amendment lawsuit against the school and its trustees.
Nicholas Meriwether, a self-described evangelical Christian, has been a professor in some capacity for Shawnee State University in Portsmouth, Ohio since 1996.
In January 2018, he taught a political philosophy course and, at one point in class, called upon a student he thought was male with the language, “Yes, sir.” The student, who remains anonymous in court documents, approached Meriwether after class and demanded he call her by her preferred female pronouns, a request the professor said would not be possible.
Meriwether claims the student “became belligerent … and [got] in his face in a threatening fashion,” and also made a promise to get him fired from the university. After a meeting with university officials, Meriwether agreed to call the student by her given name, but the student refused.
Administrators subsequently opened an investigation following additional allegations that Meriwether used male pronouns to address the transgender student, and at its conclusion, the professor was given a written warning.
In response, Meriwether filed suit in federal court and made facial challenges to the university’s nondiscrimination and reporting policies. Specifically, he claimed the inclusion of the term “gender identity” rendered the policies vague and unconstitutional.
U.S. Magistrate Judge Karen Litkovitz sided with the university and its officials and recommended granting motions to dismiss the suit in September 2019, finding that the professor’s classroom speech is not protected by the First Amendment.
Litkovitz cited the 2006 Supreme Court decision in Garcetti v. Ceballos and held that because Meriwether’s use of the incorrect pronouns was part of his official duty as a professor and public employee, he was not speaking as a private citizen who could bring a First Amendment retaliation claim.
While she admitted the topic of gender identity is a “matter of profound value and concern to the public,” Litkovitz stopped short of giving the professor protection under the First Amendment for speech about a matter of public concern.
“The speech was directed to [the student] and heard only by her and her fellow students,” Litkovitz said in her opinion, “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.”
Litkovitz’s finding were adopted by Senior U.S. District Judge Susan Dlott, a Bill Clinton appointee, who dismissed the case in February.
Meriwether appealed the decision to the Sixth Circuit, arguing in his brief that professors do not “leave their First Amendment rights at the campus gates.” He also claimed he was “punished for refusing to express [the university’s] preferred message” regarding pronouns.
“Here,” the brief states, “university officials masquerade their mandated ideology as a mere matter of etiquette and civility. In reality, they are requiring Dr. Meriwether to say or avoid certain words to convey approval of their substantive view that sex is a matter of subjective self-perception rather than physiology, contrary to his beliefs. No precedent justifies that result.”
Attorney John Bursch of Alliance Defending Freedom in Washington wrote the brief and argued on behalf of Meriwether before the Cincinnati-based appeals court on Thursday.
Bursch painted his client as a compassionate professor who made several attempts to compromise with the university and his student, but told the panel of judges Meriwether is being “punished and chilled” for standing up for his beliefs.
U.S. Circuit Judge Joan Larsen, an appointee of President Trump, quoted a passage from the Bible that instructs women to remain silent, and asked the attorney if a professor who believed in that scripture could refuse to call on female students in class.
Bursch told Larsen that such an action would deprive female students of an educational benefit and would be unacceptable under the relevant balancing test. The attorney was quick to point out, however, that the transgender student in his client’s class was not deprived of any educational benefit as a result of the professor’s actions.
Attorney Paul Kerridge argued on behalf of the university and was peppered with questions from the panel of judges.
U.S. Circuit Judge Amul Thapar, also a Trump appointee, posed a hypothetical scenario in which a Jewish professor was forced to call a student “my Fuhrer,” based on a university policy that requires faculty to use students’ preferred titles.
“I think, in and of itself, that is objectively offensive,” Kerridge said.
The attorney reminded the panel that in this case, Meriwether was not required by the university’s policy to say anything but could have used his students’ last names during class.
Larsen asked Kerridge if it is possible to conduct a philosophy class that relies on teacher-student interaction without the use of pronouns, and the attorney answered that the term “colleague” could be used to differentiate among students.
Kerridge reiterated throughout his arguments that Meriwether “can engage in an academic debate” about gender identity but could not announce his beliefs in the class syllabus or single out students for differential treatment.
Attorney Adam Unikowsky argued on behalf of Jane Doe, the anonymous student in Meriwether’s class, and the group Sexuality and Gender Acceptance, both of whom intervened in the case.
Unikowsky took exception to the Fuhrer scenario imagined by Thapar, and said it would violate a professor’s First Amendment rights because it is akin to a “loyalty oath” to Hitler and also bears no “rational relationship” to the professor’s job duties.
Like Kerridge before him, Unikowsky told the panel that Meriwether could not “air his grievances” about the university’s gender identity policy in a class syllabus, but stressed that his clients do not wish to control the discussion that occurs inside a classroom.
In his rebuttal, Bursch said his client “bent over backwards” to accommodate the transgender student, and reiterated that she was not denied any educational benefit during the class.
The attorney said Meriwether is being forced to remain silent on issues about which he cares deeply because of the university’s policy.
“Compelled silence is still compelled speech,” Bursch said.
Senior U.S. Circuit Judge David McKeague, a George W. Bush appointee, also sat on the panel. No timetable has been set for the court’s decision.