Sunday, December 4, 2022 | Back issues
Courthouse News Service Courthouse News Service

University Can’t Force Professor to Use Students’ Preferred Pronouns, Panel Rules

An appeals panel reinstated First Amendment claims brought by a philosophy professor who was threatened with suspension or termination after he refused to call a transgender student by her preferred pronouns because of his religious beliefs.

CINCINNATI (CN) --- A public university cannot compel the "academic speech" of its professors, the Sixth Circuit ruled Friday in a decision that reinstated First Amendment claims brought by a Christian professor who ran afoul of his employer's gender identity policy.

Nicholas Meriwether, an evangelical Christian who has taught at Shawnee State University since 1996, was disciplined in 2018 when he refused to call a transgender student by her preferred pronouns. Meriwether, who taught the anonymous student in a political philosophy class, typically uses the Socratic method of teaching in which "Mr." and "Ms." are used to call on students.

Following the incident, the student confronted Meriwether and demanded she be called by her preferred pronouns, at which point the professor informed her that his religious beliefs would not allow it. The student promised to get Meriwether fired, and after an investigation, the professor was given a written warning based on the school's finding that he had created a hostile environment for the student.

Meriwether was concerned further violations of the policy could get him fired, so he filed a First Amendment suit in federal court. The case was referred to a magistrate judge after the student and a group called Sexuality and Gender Acceptance intervened, and the suit was ultimately dismissed.

The professor appealed to the Sixth Circuit, which heard arguments last November.

Although the U.S. Supreme Court held in the 2006 case Garcetti v. Ceballos that comments made by government employees in the course of their normal duties are not protected by the First Amendment, the panel in Meriwether's case declined to apply that holding to professors.

"Simply put," U.S. Circuit Judge Amul Thapar wrote, "professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship."

Thapar, an appointee of Donald Trump, pointed out that this line of thinking has already been adopted by the Fourth, Fifth, and Ninth Circuits, and warned that a lack of First Amendment protection for professors would allow universities to "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 emigre to address his students as 'comrades.' That cannot be," the ruling states.

The university and intervening parties argued that an "academic-freedom exception" to Garcetti does not apply to pronouns because their use is not related to classroom instruction, but Thapar disagreed.

"Any teacher will tell you that choices about how to lead classroom discussion shape the content of the instruction enormously," he wrote. "That is especially so here because Meriwether's choices touch on gender identity -- a hotly contested matter of public concern that 'often' comes up during discussion in Meriwether's political philosophy courses."

Thapar devoted several pages of his opinion to the significance taken on by pronouns over the course of history, including the feminist movement of the 20th century and, more recently, the idea of gender identity. He made the point that Meriwether undoubtedly "waded into a matter of public concern" during the conflict with his student.

Shawnee State argued its policy protects transgender students from discrimination, but Thapar countered that there is an equally compelling interest in having college students exposed to opposing, and "even contrarian views."

Thapar also pointed out Meriwether initially proposed a compromise -- that the transgender student be referred to by her last name -- and the arrangement worked quite well, with "no suggestion that Meriwether's speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits."

This compromise was also mentioned alongside the panel's decision to revive Meriwether's claims under the First Amendment's free exercise clause, in which he alleged the university changed its position on the case several times to target the professor for his Christian beliefs.

"Dean Milliken accepted [the] accommodation. But several weeks later, she retracted the agreed-upon accommodation and demanded that Meriwether use Doe's preferred pronouns," Thapar wrote. "This about-face permits a plausible inference that the policy allows accommodations, but the university won't provide one here."

The university argued it offered Meriwether the chance to forego the use of all pronouns or "sex-based terms" in his classes, but Thapar found two problems with the proposal: not only would such a setup violate the professor's belief that "sex and gender are conclusively linked," but it would also be nearly impossible to maintain.

"And when Meriwether slipped up," the judge said, "which he inevitably would (especially after using these titles for twenty-five years), he could face discipline. Our rights do not hinge on such a precarious balance." (Parentheses in original.)

U.S. Circuit Judges David McKeague, an appointee of George W. Bush, and Joan Larsen, another Trump appointee, also sat on the panel.

Meriwether’s attorney John Bursch lauded the panel’s opinion in a statement through his firm, Alliance Defending Freedom.

“This case forced us to defend what used to be a common belief—that nobody should be forced to contradict their core beliefs just to keep their job,” Bursch said. “We are very pleased that the 6th Circuit affirmed the constitutional right of public university professors to speak and lead discussions, even on hotly contested issues. The freedoms of speech and religion must be vigorously protected if universities are to remain places where ideas can be debated and learning can take place.”

Shawnee State University attorney Paul Kerridge did not immediately respond to a request for comment.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.